/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/221228.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 28, 2022, Vol. 24, No. 253 Headlines B3 STUDIOS LLC: Sanchez Files ADA Suit in E.D. New York BLUETRITON BRANDS: Amended Haggerty Suit Dismissed W/o Prejudice BOSCH SOLAR ENERGY: Rojas Suit Transferred to C.D. California BROKER SOLUTIONS: Anthony Sues Over Unsolicited Cellular Calls BURLINGTON COAT: Fails to Pay Proper Wages, Ruffin Suit Alleges C-STORE SERVICES: Johnson Files Suit in Cal. Super. Ct. CG CONSULTING: Ousley's Partial Summary Judgment Bid OK'd in Part CLEANBRANDS LLC: Jackson Files ADA Suit in S.D. New York CLEARVIEW ELECTRIC: Reimer Files TCPA Suit in N.D. Texas COMMONWEALTH FINANCIAL: Court Dismisses Morales Suit With Prejudice COMMUNITY MEDICAL: Court Denies Bid for Substitution in Hinds Suit COOPERATIEVE RABOBANK: Dismissal of Laydon's Antitrust Claim Upheld CORSAIR GAMING: Court Narrows Claims in McKinney's 2nd Amended Suit CORTECH WEST STAFFING: White Suit Removed to E.D. California CREED BOUTIQUE: Rodriguez Files ADA Suit in E.D. New York DEFALCO CONSTRUCTION: Matute's Bid for Class Certification Granted DEVELOPLUS INC: Shores Sues Over Unlawful Use of Biometric Data DIRECTBUY HOME: Rodriguez Suit Removed to C.D. California DOMUS DESIGN CENTERS: Rodriguez Files ADA Suit in E.D. New York E.I. DU PONT: Lynn Sues Over Contaminated of Water Supplies FLORIDA: Midgett Bid for Class Certification Tossed FORD MOTOR: Weidman's Bid to Exclude Walker Opinion Granted in Part GEORGIA: Bid to Start Class Action in Frilando v. Oliphant Denied GROCERY DELIVERY: Settlement Approval in Murray TCPA Suit Reversed HERITAGE PROPERTY: Riley Suit Stayed Pending Dismissal Bid Ruling INTRUSION INC: $3.25MM Class Deal in Celeste Suit Wins Final Nod LYFT INC: $25-MM Class Deal in Securities Suit Has Prelim. Approval MALLINCKRODT PLC: Bid to Dismiss Strougo Securities Suit Denied MATTERPORT INC: Bid to Dismiss Lynch Class Suit Granted in Part MID AMERICAN: Denial of Bid for Arbitration in Duling Suit Affirmed MIELE INC: Class Settlement in Alcazar Suit Wins Final Approval MUNICIPAL HEALTH: Court Affirms Summary Judgment in Hendrix Suit PERFORMIX LLC: Gonzalez Must File Class Cert Bid by May 17, 2023 PRESTIGE CONSUMER: Solak Sues Over Mislabeled Pectin Lozenges REALPAGE INC: White Suit Alleges Housing Lease Monopoly REALPAGE INC: Zhovmiruk Suit Alleges Housing Lease Monopoly ROUNDY'S ILLINOIS: Bids to Dismiss Cunningham & Fuhrmann Suits OK'd SAN DIEGO CONVENTION: Denial of Allen's Bid to Certify Class Upheld SANTA CLARA, CA: Class Settlement in Camarlinghi Gets Final Nod SCHUETTE INC: Alcione Suit Transferred to E.D. Wisconsin SENIOR PLANNING: New Jersey Court Grants Bid to Dismiss Cotton Suit SOUTHWEST AIRLINES: Bombin's Bid to Strike Certain Info Denied STATE FARM: Fails to Pay Full Vehicle Insurance, Sullivan Says STERLING CREDIT: Taylor-Brokenbough Files FDCPA Suit in D. Delaware STORM SMART: Barbosa Sues Over Failure to Pay Overtime Wages STRAND BOOK STORE: Hanyzkiewicz Files ADA Suit in E.D. New York STRATEGIC DELIVERY: Bernard Sues Over Unpaid Compensation SURF STYLE: Has Made Unsolicited Calls, Garcia Suit Alleges SYMRISE INC: Cotton Suit Removed to S.D. Georgia SYNGENTA CROP: Milam Files Suit in S.D. Indiana TAILWINDS INC: Fagnani Files ADA Suit in S.D. New York TD BANK: Bid for Class Cert. Due June 2, 2023 in Nelipa Suit TD BANK: District of New Jersey Narrows Claims in Burns Class Suit TEVA BRANDED: Morrison Suit Transferred to D. New Jersey TMS MANAGEMENT: Lopez Sues Over Unpaid Minimum and Overtimes Wages TRIBECA ENTERPRISES: Hanyzkiewicz Files ADA Suit in E.D. New York TRIPLE EIGHT: Iskhakova Files ADA Suit in E.D. New York TRU KIDS INC: Toro Files ADA Suit in S.D. New York UMPQUA BANK: Camenisch Wins Class Status Bid UMPQUA BANK: Summary Judgment Bid in Camenisch Class Suit Denied UNITED AIRLINES: Hughes Suit Removed to N.D. California UNITED TACTICAL: Toro Files ADA Suit in S.D. New York UPRISE ART LLC: Iskhakova Files ADA Suit in E.D. New York URBAN ANGLER: Iskhakova Files ADA Suit in E.D. New York VISION SOLAR: Bid to Remand Calta Class Suit to State Court Granted WING FINANCIAL SERVICES: Deevers Files Suit in N.D. Oklahoma WIRECARD AG: EY Germany's Bid to Dismiss Securities Suit Granted XPO LAST MILE: Mejia Suit Removed to N.D. California YERBA MATE CO: Reyes Files Suit in Cal. Super. Ct. ********* B3 STUDIOS LLC: Sanchez Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against B3 Studios, LLC. The case is styled as Randy Sanchez, on behalf of himself and all others similarly situated v. B3 Studios, LLC, Case No. 1:22-cv-07757 (E.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. B3 Studios, LLC provides best Fitness services in Portland, Oregon.[BN] The Plaintiff is represented by: Noor H. Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com BLUETRITON BRANDS: Amended Haggerty Suit Dismissed W/o Prejudice ---------------------------------------------------------------- In the case, SHARON HAGGERTY, on behalf of herself and all others similarly situated, Plaintiff v. BLUETRITON BRANDS, INC., et al., Defendants, Civil Action No. 21-13904 (ZNQ) (DEA) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for the District of New Jersey rgants two Motions to Dismiss the Amended Complaint filed by Defendant Bluetriton Brands, Inc. and Defendant Niagara Bottling LLC pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Plaintiff filed her first complaint against the Defendants on July 20, 2021. The Defendants both filed motions to dismiss the complaint on Oct. 1, 2021. The counsel for all parties filed a proposed stipulation to extend time to oppose both motions to dismiss. The Court, however, denied the stipulation. After a telephone conference with the Court, the Plaintiff filed an Amended Complaint on Oct. 18, 2021. The parties were then ordered to serve the Motions to Dismiss and respective briefs upon each other before filing them on the docket. The Defendants manufacture, market, sell, and distribute bottled water products. The Products at issue contain the representation "100% Recyclable" on its packaging and labeling. The Plaintiff has purchased numerous multi-bottle packs of Bluetriton's "Deer Park" bottled water and Niagara's "Niagara" bottled water for approximately $5 and $4, respectively. When purchasing the Products, she reviewed the accompanying labels and disclosures and understood them as representations and warranties by the Defendants that the Products were 100% recyclable. She attempted to recycle the Products by placing them in her recycling bin for pickup. However, the Products were not actually recycled because the bottle cap was not recyclable in her county. The Plaintiff also alleges that given statewide statistics, less than half of the bottles she recycled would have actually been recycled into usable material. Each of the Products manufactured by the Defendants has three components: the bottle, the cap, and the label wrapped around the bottle. The bottles are made of polyethylene terephthalate ("PET"), the plastic most commonly used in single-use plastic water bottles. (Id.) The Products' bottle caps are made of polypropylene ("PP") or high-density polyethylene ("HDPE"). The Products' labels are made from biaxially oriented polypropylene ("BOPP"), a form of PP. Throughout the class period, the Defendants have consistently marked on the Products' packaged that they are 100% recyclable. The Plaintiff claims that Greenpeace USA, a nonprofit environmental organization, recently conducted a comprehensive survey of plastic product waste recycling and reprocessing in the United States. The survey found that as of 2017, United States domestic MRFs only have the capacity to process into plastic resin approximately: (i) 22.5% of the total post-consumer PET plastic waste generated; and (ii) 12% of the total post-consumer HDPE plastic waste generated. Further, she alleges that about one-third of the collected PET and HDPE material processed by MRFs cannot be converted into "clean flake," and instead are landfilled and incinerated. Furthermore, PP and BOPP plastics, the materials used to make the Products' bottle caps and film labels, are among the least recyclable plastics. Accordingly, the Plaintiff asserts the Products are in fact not 100% recyclable as advertised. The Amended Complaint includes allegations that the Defendants violated the Consumer Fraud Act ("CFA"), contrary to N.J.S.A. Section 56:8-1 (Count I), fraud (Count II), negligent misrepresentation (Count III), breach of express warranty (Count IV), and unjust enrichment (Count V). The Defendants move to dismiss the Amended Complaint on several grounds, including that the Plaintiff lacks Article III standing to bring the present action, and fails to state a claim on which relief can be granted. The Plaintiff is the party seeking to invoke federal jurisdiction, so the burden to establish standing rests with her. Indeed, she specifically bears the burden of showing that she has standing for each type of relief sought. Judge Quraishi finds that the Amended Complaint fails to put forth any facts regarding comparable or cheaper products to show the Plaintiff paid a premium price. Her theory of harm fails to particularize a concrete injury. She merely claims that but for the Products' representations that they were "100% Recyclable," she would not have purchased the Products at their premium price. Rather than pleading facts regarding comparable, cheaper products, she proposes her injury be measured as "the difference in value between the Products as represented versus the value of the Products received." This assertion, however, is merely restating the Plaintiff's burden to articulate how that value is to be determined. Accordingly, Judge Quraishi finds that the Plaintiff has failed to plausibly plead an economic injury in fact under the price premium theory, and therefore she lacks standing to seek monetary damages. The Defendants separately challenge the Plaintiff standing to see injunctive relief. In opposition, the Plaintiff claims she in fact has standing because of her desire to purchase water bottles from Defendants in the future. She asserts that the Amended Complaint alleges a future exposure to an increased risk of harm. Judge Quraishi opines that whether the Plaintiff purchases the Products or not will be her choice, and what that choice may be is a matter of pure speculation. Even if the Plaintiff would purchase the Products again were the products properly labeled or repackaged, and even if her inability to trust the Defendants' labeling in the future prevents her from purchasing the Products against her wishes, such claims "lack the necessary imminency and do not result in a substantial risk of harm sufficient to generate an independent injury." Accordingly, the Amended Complaint fails to articulate an injury sufficient to confer upon the Plaintiff standing to seek injunctive relief. For the reasons he stated, Judge Quraishi grants the Defendants' Motion to Dismiss. He dismisses the Amended Complaint without prejudice. He grants the Plaintiff leave to file a Second Amended Complaint within 30 days. A full-text copy of the Court's Dec. 16, 2022 Opinion is available at https://tinyurl.com/y7drucu2 from Leagle.com. BOSCH SOLAR ENERGY: Rojas Suit Transferred to C.D. California ------------------------------------------------------------- The case styled as Steve R. Rojas, Andrea N. Rojas, on behalf of themselves and all others similarly situated v. Bosch Solar Energy Corporation, Does 1-20, inclusive, Defendants; Green Solar Technologies, Inc. formerly known as: American Solar Solution, Inc., Movant; Case No. 5:18-cv-05841-BLF was transferred from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the Central District of California on Dec. 19, 2022. The District Court Clerk assigned Case No. 8:22-mc-00033-DOC-DFM to the proceeding. The nature of suit is stated as Contract Product Liability. Bosch Solar Energy -- http://www.bosch-solarenergy.com/-- is a German solar wafer and solar cell manufacturer.[BN] The Plaintiffs are represented by: David M Birka-White, Esq. Steven T Knuppel, Esq. BIRKA-WHITE LAW OFFICES 178 East Prospect Avenue Danville, CA 94526 Phone: (925) 362-9999 Fax: (925) 362-9970 Email: dbw@birka-white.com - and - John D Green, Esq. FARELLA BRAUN AND MARTEL LLP 235 Montgomery Street Suite 1700 San Francisco, CA 94104 Phone: (415) 954-4400 Fax: (415) 954-4480 Email: jgreen@fbm.com The Defendant is represented by: Ashley Song, Esq. K AND L GATES LLP 1 Park Plaza 12th Floor Irvine, CA 92614 Phone: (949) 253-0900 Fax: (949) 253-0902 Email: ashley.song@klgates.com - and - Matthew G Ball, Esq. K AND L GATES LLP 4 Embarcadero Center Suite 1200 San Francisco, CA 94111 Phone: (415) 249-1014 Fax: (415) 882-8220 Email: matthew.ball@klgates.com BROKER SOLUTIONS: Anthony Sues Over Unsolicited Cellular Calls -------------------------------------------------------------- Michael Anthony, individually and on behalf of all others similarly situated v. BROKER SOLUTIONS, INC. d/b/a NEW AMERICAN FUNDING, and DOES 1 through 10, inclusive, and each of them, Case No. 2:22-cv-09242 (C.D. Cal., Dec. 20, 2022), is brought seeking damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant, in negligently, knowingly, and/or willfully contacting the Plaintiff on the Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act, and related regulations, specifically the National Do-Not-Call provisions, thereby invading Plaintiff's privacy. On August 9, 2022, the Defendant contacted the Plaintiff repeatedly on the Plaintiff's cellular telephone, in an attempt to solicit the Plaintiff to purchase the Defendant's services. The Defendant's calls constituted calls that were not for emergency Purposes. Further, the Plaintiff's cellular telephone was added to the National Do-Not-Call Registry on May 20, 2004, eighteen years prior to the Defendant's initial call. The Plaintiff received at least one solicitation call from the Defendant within a 12-month period. The Defendant called the Plaintiff in an attempt to solicit its services and in violation of the National Do-Not-Call provisions of the TCPA. Upon information and belief, and based on the Plaintiff's experiences of being called by the Defendant after being on the National Do-Not-Call list for several years prior to the Defendant's initial call, and at all relevant times, the Defendant failed to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under the TCPA, says the complaint. The Plaintiff is a natural person residing in the Commonwealth of Pennsylvania. BROKER SOLUTIONS, INC. d/b/a NEW AMERICAN FUNDING is a mortgage lending company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21031 Ventura Blvd., Suite 340 Woodland Hills, CA 91364 Phone: 323-306-4234 Fax: 866-633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com BURLINGTON COAT: Fails to Pay Proper Wages, Ruffin Suit Alleges --------------------------------------------------------------- DOMINIQUE RUFFIN, individually and on behalf of all others similarly situated, Plaintiff v. BURLINGTON COAT FACTORY WAREHOUSE d/b/a BURLINGTON, Case ID: 221201640 (Pa. Comm. Pleas, Philadelphia Cty., Dec. 18, 2022) is an action against the Defendant for failure to pay minimum wages, overtime wages, unpaid post-shift security and bag screening in violation of the Pennsylvania Minimum Wage Act. Plaintiff Ruffin was employed by the Defendant as back room associate. BURLINGTON COAT FACTORY WAREHOUSE retails apparels. The Company offers clothing for men's, women's, and children's as well as linens, bath shop items, gifts, and accessories. [BN] The Plaintiff is represented by: Daniel Breen, Esq. THE ROTHENBERG LAW FIRM LLP Rothenberg Center 1420 Walnut Street, 2nd Floor Philadelphia, PA 19102 Telephone: (215) 732-7000 Email: dbreen@injurylawyer.com C-STORE SERVICES: Johnson Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against C-Store Services, Inc., et al. The case is styled as Justin Johnson, and on behalf of all others similarly situated v. C-Store Services, Inc., Does 1-50, Case No. 34-2022-00331605-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec. 19, 2022). The case type is stated as "Other Employment - Civil Unlimited." C-Store Services LLC specializes in their residential spray foam services which includes contracting and repair for spray foam insulation.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S Figueroa St., Ste. 1250 Los Angeles, CA 90071-3316 Phone: 213-488-6555 Fax: 213-488-6554 Email: lwlee@diversitylaw.com CG CONSULTING: Ousley's Partial Summary Judgment Bid OK'd in Part ----------------------------------------------------------------- In the case, ALICIA OUSLEY, et al., on behalf of themselves and others similarly situated, Plaintiffs v. CG CONSULTING, LLC, et al., Defendants, Case No. 2:19-cv-01744 (S.D. Ohio), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio, Eastern Division: a. denies the Plaintiffs' Motion to Certify Rule 23 Class; and b. grants in part and denies in part their Motion for Partial Summary Judgment. This hybrid wage and hour Fair Labor Standards Act collective and putative Rule 23 class action is before the Court on two motions filed by Plaintiffs Alicia Ousley, Michael Starkey, and Josh Votaw, on behalf of themselves and others similarly situated: a Motion to Certify Rule 23 Class and a Motion for Partial Summary Judgment. The Defendants opposed both motions and the Plaintiffs replied. The Plaintiffs are former employees of CG, a limited liability company that owns and operates bars and restaurants in the adult entertainment industry. Ousley was a bartender. Starkey and Votaw were floor hosts. Bartenders that worked under the same station share their tips (30(b)(6); floor hosts share their tips. Both bartenders and floor hosts are categorized as tipped employees by CG, and a "tip credit" is applied to their pay. Other employees who are categorized as tipped employees paid a tip credit are servers, door hosts, and deejays. Bartenders' primary job duties include dispensing and fulfilling drink orders, operating point of sales systems, and closing end shift registers. Floor hosts' primary duties include checking IDs and ensuring the safety of the premises and employees. Ousley filed this action in May 2019. Leave to file a first, second, and third amended complaint was granted. In October 2020, she filed a motion for conditional class certification and court-supervised notice to potential opt-in plaintiffs pursuant to 29 U.S.C. Section 216(b), which was unopposed with the stipulation to remove the word "dancer" from the proposed notice; the Court granted the motion. Six individuals have opted-in to the FLSA collective class, including named Plaintiffs Votaw and Starkey. The Plaintiffs' third amended complaint contains 13 causes of action. Ousley brings the first seven counts individually. She alleges that CG and/or Defendant Jose Canseco discriminated against, sexually harassed, retaliated against, and sexually assaulted her. The Plaintiffs bring Counts VIII to XVI ("Wage and Hour Claims") against CG, Defendant Anthony Quaranta, and/or Defendant Nicholas Castaldo ("CG Defendants") for violations of the Fair Labor Standards Act, corresponding Ohio wage and hour statutes, and the Ohio Constitution, Article II, Section 34a. Mr. Canseco was deployed to Eastern Europe on March 20, 2022, and the Defendants moved to stay the action under Section 3932 of the Servicemembers Civil Relief Act during Mr. Canseco's active military service and for 90 days thereafter. The Court granted in part and denied in part Defendants' motion to stay, staying Counts I to VII until March 14, 2023, and allowing the Wage and Hour Claims to proceed. The Motion to Certify Rule 23 Class and a Motion for Partial Summary Judgment concern the Wage and Hour Claims, except Count XIII. Judge Morrison explains that it is the Plaintiffs' burden to establish the Rule 23 prerequisites for class certification. Rule 23(a) provides that class action lawsuits may be certified if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. It is also the Plaintiffs' burden to establish the predominance or superiority requirements under Rule 23(b)(3). Failure to satisfy Rule 23(a) and one of Rule 23(b)'s requirements "dooms the class. The Plaintiffs seek certification of the following Ohio Rule 23 class: All non-owner, non-employer current and former hourly, employees to whom a tip credit was applied and who worked for the CG Defendants in Ohio during any workweek from May 2, 2016 to the present. Judge Morrison finds that the Plaintiffs have failed to meet the commonality and typicality requirements. So, she need not address the remaining Rule 23(a) factors or predominance or superiority under Rule 23(b)(3). As to commonality, while the Plaintiffs' proposed class definition has surface appeal, their brief makes clear that the class they are seeking to represent has not all "suffered the same injury." As the Defendants underscore, the Plaintiffs' proposed class seemingly includes separate classes or subclasses: (1) CG employees who were paid the incorrect tipped employee minimum wage; (2) floor hosts who were misclassified as tipped employees but should have been classified as non-tipped employees; and (3) CG employees were not paid at least minimum wage when wages and tips are combined. These groups of CG employees have suffered different injuries in need of distinct answers. Showing merely that they have all suffered a violation of the same provision of the law is insufficient. Typicality is also lacking because the Plaintiffs' class would include individuals who have no claim at all to certain relief requested -- for example, the bartenders, servers, and deejays would have no claim that they were misclassified as tipped employees like the floor hosts. For these reasons, Judge Morrison is unable to certify a Rule 23 class and denies the Plaintiffs' Motion. Turning to Summary Judgment, Judge Morrison must first consider whether Messrs. Quaranta and Castaldo, in their individual capacities, held the status of "employers" under the FLSA and Ohio law when the alleged violations occurred. She finds that they are "employers." Next, Judge Morrison denies summary judgment on Counts VIII, IX, X, XI, and XV. Counts VIII, IX, X, XI, and XV are wage and hour claims under the FLSA and Ohio law. Count VIII is an FLSA claim for unpaid minimum wages; Count IX is an FLSA claim for unpaid overtime wages; Count X is a claim for minimum wage violations of the Ohio Constitution Article II, Section 34a; Count XI is an Ohio Prompt Pay Act claim under Ohio Revised Code Section 4113.15; and Count XV requests that the Court concludes that the CG Defendants' violations of the FLSA were willful, therefore entitling Plaintiffs to compensatory and punitive damages pursuant to Ohio Revised Code Section 2307.60. Judge Morrison opines that these FLSA and Ohio law claims are intrinsically intertwined. The Plaintiffs move for summary judgment on behalf of themselves, the four individuals who have opted-into the action under Section 216(b), and the Rule 23 putative class members. The particular procedural posture of the case has created "an atmosphere of confusion." The Plaintiffs fail to connect their legal argument to the relevant Counts; likewise, they fail to specify which employees are making each legal argument. They ask the Court to determine whether summary judgment is appropriate on various issues, and sort out to whom those determinations apply. That is not the Court's burden. Nevertheless, summary judgment is inappropriate because this litigation is replete with genuine issues of material fact on each Count, Judge Morrison holds. As to the unpaid minimum wage Counts VIII and X, she finds that Plaintiffs has alleged all issues of material fact for a jury. The Plaintiffs move on their FLSA overtime wage Count IX, but provide limited argument as to why they are so entitled and fail to explain who is moving on this Count. This testimony alone, however, is not enough to demonstrate no genuine issues of material fact exist. Finally, summary judgment on Count XI is denied because Ohio's Prompt Pay Act "rises and falls" with the underlying FLSA and Ohio wage and hour claims, and there are issues of fact with respect to those claims. Concerning Count XV, Judge Morrison opines that the Plaintiffs' motion is premature because they have yet to prove the CG Defendants violated the FLSA, let alone did so willfully. For these reasons, Judge Morrison denies the Motion to Certify Rule 23 Class, grants in part the Motion for Partial Summary Judgment. She finds that Messrs. Quaranta and Castaldo are "employers" under the FLSA and Ohio law when the alleged violations occurred. She otherwise denies the Motion for Partial Summary Judgment. A full-text copy of the Court's Dec. 16, 2022 Opinion & Order is available at https://tinyurl.com/nhz72k8y from Leagle.com. CLEANBRANDS LLC: Jackson Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Cleanbrands LLC. case is styled as Sylinia Jackson, on behalf of herself and all other persons similarly situated v. Cleanbrands LLC, Case No. 1:22-cv-10749 (S.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cleanbrands LLC -- https://shop.cleanbrands.com/ -- design and manufacture the world's most advanced and medically effective allergy bedding-barrier products..[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: nyjg@aol.com danalgottlieb@aol.com CLEARVIEW ELECTRIC: Reimer Files TCPA Suit in N.D. Texas -------------------------------------------------------- A class action lawsuit has been filed against Clearview Electric Inc. The case is styled as Ruhi Reimer, individually, and on behalf of all others similarly situated v. Clearview Electric Inc. doing business as: Clearview Energy, Case No. 3:22-cv-02844-N (N.D. Tex., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Clearview Electric Inc. -- https://www.clearviewenergy.com/ -- provides utility services. The Company supplies electricity and natural gas to residents, commercial, and industrial sectors.[BN] The Plaintiff is represented by: Marwan R. Daher, Esq. Mohammed Omar Badwan, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 Fax: (630) 575-8188 Email: mdaher@sulaimanlaw.com mbadwan@sulaimanlaw.com COMMONWEALTH FINANCIAL: Court Dismisses Morales Suit With Prejudice ------------------------------------------------------------------- In the case, IVELIZ MORALES, individually and on behalf of all others similarly situated, Plaintiff v. COMMONWEALTH FINANCIAL SYSTEMS, INC., Defendant, Case No. 22cv1319 (EP) (JRA) (D.N.J.), Judge Evelyn Padin of the U.S. District Court for the District of New Jersey grants Commonwealth's motion to dismiss and dismisses the Plaintiff's complaint with prejudice. This putative class action arises under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, et seq. Morales received a letter from the Defendant/debt collector, Commonwealth, regarding a debt owned by non-party Pendrick Capital Partners LLC. Morales alleges that the letter violates Section 1692e of the FDCPA because it contains false, deceptive and misleading representations about the law with respect to restarting/reviving the statute of limitations on a time-barred debt, and about whether she could get sued on a time-barred debt." Presently before the Court is Commonwealth's motion to dismiss Morales' complaint under Federal Rule of Civil Procedure 12(b)(6). Judge Padin has reviewed the parties' submissions and decides the motion without oral argument. Morales is a New Jersey resident who seeks to bring the matter on behalf of herself and all New Jersey consumers who were sent debt collection letters from Commonwealth that allegedly violate the FDCPA. She alleges that at some time prior to Sept. 17, 2021, she incurred a financial obligation to medical service provide Southern Bank Emergency Physicians. The rights to collect on that obligation were subsequently transferred to Pendrick Capital Partners LLC, who in turn referred the matter to Commonwealth for collection purposes. Commonwealth, in furtherance of that goal, sent Morales a letter dated Sept. 17, 2021. It is the language within final paragraph of the Letter -- and that paragraph only -- that Morales claims violates the FDCPA Morales' one-count complaint specifically alleges that Commonwealth violated Sections 1692e, 1692e(2)(A), 1692e(5) and 1692e(10) of the FDCPA because the Letter's last paragraph includes false, deceptive and misleading representations about the law with respect to restarting/reviving the statute of limitations on a time-barred debt, and about whether Morales could get sued on a time-barred debt. 8-68. Morales initiated this action on March 11, 2022. On May 26, 2022, Commonwealth filed its present Rule 12(b)(6) motion to dismiss. Morales opposed on June 14, 2022. And Commonwealth filed its reply on July 12, 2022. The complaint attaches a copy of the Sept. 17, 2021 letter from Commonwealth, the wording of which is the foundation of Morales' allegations. Its authenticity is not disputed, and Judge Padin therefore may consider it on this motion without converting the motion into one for summary judgment. She grants Commonwealth's motion. Judge Padin holds that Morales' claim that the language in final paragraph of the Letter contains false, deceptive, and misleading representations about the law with respect to restarting/reviving the statute of limitations on a time-barred debt, and about whether Morales could get sued on a time-barred debt is inconsistent with numerous court decisions holding that similarly-worded language fails to support an actionable under claim under FDCPA Section 1692e. And because Morales' sole claim is based on her assertion that the final paragraph of the Letter violates FDCPA Section 1692e, her complaint is dismissed. Judge Padin also holds that an amendment to Morales' dismissed Section 1692e claim would be futile because that claim is based entirely on the last paragraph of the Sept. 17, 2021 Letter which is properly before the Court. For the reasons set forth in her Opinion, the language in the Letter's final paragraph does not violate FDCPA Section 1692e. There are no additional facts that Morales could allege with respect to that paragraph that would cure the deficiencies noted herein. Accordingly, Morales' claim that the Letter's final paragraph violates FDCPA Section 1692e is dismissed with prejudice as futile. And because this is the lone claim asserted in her pleading, Morales' complaint is also dismissed with prejudice. A full-text copy of the Court's Dec. 16, 2022 Opinion is available at https://tinyurl.com/es9h9t34 from Leagle.com. COMMUNITY MEDICAL: Court Denies Bid for Substitution in Hinds Suit ------------------------------------------------------------------ Senior District Judge John A. Mendez of the U.S. District Court for the Eastern District of California issued an amended order denying motion for substitution and granting motion for remand in the lawsuit titled DANIEL HINDS, on behalf of themselves and others similarly situated, Plaintiff v. COMMUNITY MEDICAL CENTERS, INC., Defendant, Case No. 2:22-cv-01207-JAM-AC (E.D. Cal.). On Nov. 11, 2021, Plaintiff Daniel Hinds filed suit against Community Medical Centers, Inc. ("CMC") in the Superior Court of the State of California for the County of San Joaquin based on various state laws alleging CMC failed to protect his Protected Health Information ("PHI") and Personally Identifiable Information ("PII"). Thereafter four more cases alleging the same violations were filed against CMC and the San Joaquin Superior Court consolidated them into this class action. CMC, then, removed and filed its motion to substitute the United States as this suit's defendant. The United States and the Plaintiff filed their respective oppositions and CMC replied. In addition, the United States and the Plaintiff filed motions to remand. CMC is a healthcare provider that operates over 25 facilities in California. To offset its operation costs associated with malpractice liability, CMC applied for and received federal grant funding pursuant to the The Federally Supported Health Centers Assistance Act of 1992 ("FSHCAA"). As a recipient of this funding, the Secretary of Health and Human Services (HHS) deemed CMC an employee of the United States Public Health Service ("PHS") "for the purposes of" 42 U.S.C. Section 233. Under 42 U.S.C. Section 233, the Federal Tort Claims Act ("FTCA") is the only remedy for certain medical-malpractice suits against PHS employees. However, the FTCA's applicability is not automatic. Instead, the United States Attorneys--in accordance with Attorney General's delegation of such duties--evaluate when a lawsuit's alleged actions or omission triggers the FTCA's coverage. If a healthcare provider--like CMC--is sued in state court, FSHCAA provides two avenues for the case's removal to federal court: (1) the Attorney General can remove the case after certifying the defendant is a deemed PHS employee whose actions or omissions fall within the FTCA's purview; or (2) the healthcare provider can remove the case on its own if the Attorney General fails to appear within fifteen days of receiving notice of the case. After CMC applied and received FSHCAA funding in 2021 and 2022, CMC learned of an "external system breach" compromising its patients PHI and PII in October 2021. After CMC notified its patients of the breach, Daniel Hinds filed suit against CMC in San Joaquin Superior Court based on various state laws. Thereafter four more cases were filed--Beck, Donaire, Palermo, and Miranda--due to the same breach. CMC forwarded each complaint to HHS, seeking its representation in all instances. In January 2022, HHS's counsel denied CMC's request because CMC and its staff are "deemed to be employees of the [PHS] solely in medical malpractice cases" and the complaints' allegations do not fall under the auspice of the FSCHAA and FTCA. Later that month, the state court consolidated the cases into the Hinds case, and the parties entered a stipulated case management order requiring the Plaintiffs to file and serve a consolidated complaint by June 8, 2022. The Plaintiff filed and served the Defendant the Consolidated Class Action Complaint ("CCAC") on June 9, 2022. On June 13, 2022, CMS sent HHS and the United States Attorney for the Eastern District of California ("United States Attorney") the CCAC and letter seeking "removal of the consolidated class action to federal district court and substitution of the United States as the proper defendant in the places of CMC." In accordance with Section 233(l)(1), the United States Attorney appeared in court on June 22, 2022, and explained he was determining whether Section 233's protection shielded CMC from the Plaintiff's allegations. On July 7, 2022, CMC asked the United States Attorney if he would consent to CMC removing the case to federal court and substitution of the United States in CMC's place. The United States Attorney advised he was still evaluating the matter and "would oppose any unilateral removal or attempt to compel the United States to substitute as the defendant in lieu of CMC." One day later, CMC removed the action to federal court. On Aug. 5, 2022, the United States Attorney sent CMC a letter denying its request because the "available information" indicated the claims against CMC were not "for damage for personal injury, including death, resulting from the performance of medical, surgical, dental or related functions." The parties dispute whether Section 233 entitles CMC to absolute immunity and the United States' substitution in this suit. The United States argues CMC's motion fails because CMC fails to identify a statute allowing the Court to mandate the Government's substitution under these circumstances. CMC also relies on Sections 233(c) and (l)(2) to support its contention that the Court should force the United States' substitution. The former allows the Attorney General to remove a matter after he certifies the defendant is a deemed PHS employee whose actions or omissions fall within the FTCA's purview. The latter, in comparison, allows a healthcare provider to unilaterally remove a case if the Attorney General fails to appear within fifteen days of receiving notice of the case. Here, Judge Mendez opines, neither scenario is applicable because the Attorney General: (1) did not issue such a certification; and (2) timely appeared in court. As a result, neither provision aids CMC's argument that Section 233 allows the Court to force the United States' substitution in this suit. The Court agrees with the Government and finds it lacks the statutory authority to grant CMC's request. CMC's motion for substitution is, accordingly, denied. Furthermore, given the Court reached its decision because of the Government's opposition, it finds the Plaintiff's filings regarding this matter moot and need not address them. The Plaintiff urges the Court to remand this case because CMC removed this action on July 8, 2022--over seven months after Mr. Hinds filed his suit on Nov. 11, 2021. As a result, the Plaintiff contends CMC failed to comport with 28 U.S.C. Section 1446(b). Because CMC removed this action thirty days after receiving Mr. Hinds' initial pleading, the Plaintiff argues CMC's removal is untimely and requires this action's remand to state court. CMC, in response, contends its removal was timely because: (1) it removed the action within thirty days of its receipt of the CCAC; and (2) two decisions in the District of South Carolina provided CMC with a new basis to remove this action. The Court agrees with the Plaintiff and finds CMC's removal untimely. The Court reaches this conclusion because of: (1) Section 1446(b)'s plain language identifying the initial pleading as the filing initiating the thirty-day window by which an action can be removed; and (2) case law finding the plain language of the statute requires a paper that shows a ground for removal that was previously unknowable or unavailable. Because CMC fails to cite to any allegation in the CCAC that was unavailable in Mr. Hinds' initial pleading as the basis for removal, grounds for removal were knowable or available to CMC on Nov. 11, 2021, Judge Mendez opines. As a result, its opportunity to remove this cause of action expired on Dec. 11, 2021. Furthermore, even if the Court found CMC's argument that the District of South Carolina's decisions provided a novel removal basis, its removal would still be untimely. Those orders were published on June 2, 2022, and CMC's removal was filed July 8, 2022--thirty-six days later. Thus, the Court grants the Plaintiff's motion for remand. Moreover, because the Plaintiff's motion is granted, the Court finds the United States' motion regarding this matter moot and does not need to directly address its arguments. The Court issued its Order re Filing Requirements on July 11, 2022. The Filing Order limits reply memoranda to five pages. It also states that an attorney, who exceeds the page limit must pay monetary sanctions of $50 per page. CMC exceeded the Court's five-page limit when it replied to the Plaintiff's Opposition to CMC's motion for substitution by four pages and the United States' Opposition to CMC's motion for substitution by six pages. The Court, therefore, orders CMC's counsel to pay $500 to the Clerk for the Eastern District of California no later than seven days from the date of this Order. A full-text copy of the Court's Amended Order dated Dec. 8, 2022, is available at https://tinyurl.com/3uhbfdd6 from Leagle.com. COOPERATIEVE RABOBANK: Dismissal of Laydon's Antitrust Claim Upheld ------------------------------------------------------------------- In the lawsuit entitled 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) (2nd Cir.), the United States Court of Appeals for the Second Circuit affirms the dismissal of the Plaintiff's antitrust and other claims. Laydon brought this 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. The names are short for "Yen London Interbank Offered Rate" and "Euroyen Tokyo Interbank Offered Rate," respectively. The Euroyen, also known as offshore yen, refers to deposits denominated in Japanese Yen held outside of Japan. Yen-LIBOR and Euroyen TIBOR are based on "the interest rates at which banks offer to lend unsecured funds denominated in Japanese Yen to other banks in the offshore wholesale money market (or interbank market)." The Plaintiff 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. He brought claims under the Commodity Exchange Act ("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 Racketeer Influenced and Corrupt Organizations Act ("RICO"). 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 Court of Appeals affirms. 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. The Plaintiff's CEA claims are based predominantly on foreign conduct and are, thus, impermissibly extraterritorial, the Court of Appeals holds. Circuit Judge Michael H. Park, writing for the Panel, opines that 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 Panel agrees with the district court that the Plaintiff failed to allege proximate causation for his RICO claims. The judgment of the district court is, thus, affirmed. Judge Park opines that the district court properly dismissed the Plaintiff's CEA and antitrust claims and denied leave to add civil RICO claims. The Court of Appeals, thus, affirms the judgment and orders of the district court, and dismisses the cross-appeal. A full-text copy of the Court's Opinion dated Dec. 8, 2022, is available at https://tinyurl.com/vpmcx3y5 from Leagle.com. ERIC F. CITRON -- ecitron@goldsteinrussell.com -- Goldstein & Russell, P.C., in Bethesda, Maryland (Vincent Briganti -- vbriganti@lowey.com -- Margaret MacLean -- mmaclean@lowey.com -- Lowey Dannenberg, P.C., in White Plains, New York, on the brief), for Plaintiff-Appellant-Cross-Appellee Jeffrey Laydon. THOMAS G. HUNGAR -- thungar@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, in Washington, D.C. (Russell B. Balikian -- rbalikian@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, in Washington, D.C.; Mark A. Kirsch , Eric J. Stock , Jefferson E. Bell, Gibson, Dunn & Crutcher LLP, in New York City, on the brief), for Defendants-Appellees UBS AG and UBS Securities Japan Co., Ltd. MARC J. GOTTRIDGE -- marc.gottridge@hsf.com -- Herbert Smith Freehills New York LLP, in New York City (Lisa J. Fried -- lisa.fried@hsf.com -- Herbert Smith Freehills New York LLP, in New York City; Benjamin A. Fleming -- benjamin.fleming@hoganlovells.com -- Hogan Lovells US LLP, in New York City, on the brief), for Defendant-Appellee Lloyds Banking Group plc. NICOLE A. SAHARSKY -- nsaharsky@mayerbrown.com -- Mayer Brown LLP, in New York City (Steven Wolowitz -- swolowitz@mayerbrown.com -- Andrew J. Calica -- acalica@mayerbrown.com -- Mayer Brown LLP, in New York City, 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, in New York City; Mark D. Villaverde -- mvillaverde@milbank.com -- Milbank LLP, in Los Angeles, California, for Defendant-Appellee-Cross-Appellant Cooperatieve Rabobank U.A. David S. Lesser -- dlesser@kslaw.com -- King & Spalding LLP, in New York City; Robert G. Houck , Clifford Chance US LLP, in New York City, for Defendants-Appellees The Royal Bank of Scotland plc, The Royal Bank of Scotland Group plc, and RBS Securities Japan Ltd. CORSAIR GAMING: Court Narrows Claims in McKinney's 2nd Amended Suit ------------------------------------------------------------------- In the case, ANTONIO McKINNEY, et al., Plaintiffs v. CORSAIR GAMING, INC., Defendant, Case No. 22-cv-00312-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California grants in part and denies in part Corsair's motion to dismiss the Plaintiffs' Second Amended Complaint. Plaintiffs Antonio McKinney and Clint Sundeen allege that Defendant Corsair's packaging of and advertisements for its computer memory products contain deceptive and misleading statements, in violation of the common law and the consumer protection laws of California and 43 other states. In their second amended complaint, the Plaintiffs allege which of Corsair's deceptively labeled memory products are at issue, apart from the specific products they bought. They allege that each of these products includes an unqualified statement identifying a specific 'MHz' speed of the memory on the front of the packaging, and that each model of Corsair's High-Speed Memory does not operate at the advertised speed. The Plaintiffs also include examples of "product pages" for Corsair products on its own website and authorized resellers, where the advertised MHz speed is stated on the product page. They allege that Corsair expressly authorizes resellers to resell its products and expressly identifies them as authorized resellers and announces this fact to consumers. In its prior order on Corsair's first motion to dismiss and motion to strike, the Court granted Corsair's motion as to (1) claims based on advertisements; (2) omissions claims; (3) equitable claims; (4) negligent misrepresentation claims; and (5) class claims with respect to products Plaintiffs did not purchase. It denied Corsair's motion as to (1) misrepresentation claims based on statements on the packaging of Corsair's products; (2) breach of warranty claims; and (3) class claims brought under the laws of other states. The Court allowed the Plaintiffs to amend on all claims except the negligent misrepresentation claim. The Plaintiffs did so, and Corsair renews its motion to dismiss and motion to strike, this time only urging dismissal of Plaintiffs' claims regarding (1) omissions; (2) products Plaintiffs did not purchase; (3) class claims brought under the laws of other states; and (4) breach of warranty claims. Judge Breyer examines Corsair's arguments in the following order: (1) that the Plaintiffs' fraudulent omission claims must again be dismissed; (2) that the Court should strike the Plaintiffs' amended allegations regarding products that were not purchased by the Plaintiffs; (3) that the Court should strike the Plaintiffs' national and multistate class action claims; and (4) that the Plaintiffs' amended express warranty claim must be dismissed. First, Corsair again moves to dismiss the Plaintiffs' fraud claims to the extent they allege that the statements on the packaging and in online advertisements constitute fraudulent omissions. Judge Breyer holds that because the Plaintiffs were given the opportunity to amend their complaint to allege a duty to disclose and have failed to do so, their claims based on omissions are dismissed without leave to amend. He finds that the Plaintiffs' SAC does not appear to alter their omission claims at all, apart from adding allegations relating to product pages on Corsair's and authorized resellers' websites. The closest Plaintiffs come is alleging that "the most important measure of memory performance is the speed at which it transfers data," and "speed is a primary factor in determining the price a consumer will pay for memory." These allegations do not plead that speed is central to the function of the product, or that performing at a lower speed will render the product "incapable of use." Next, Corsair argues that the Court should strike the Plaintiffs' renewed class allegations regarding products not purchased by the Plaintiffs, because by establishing that the labels of their purchased products are misleading, they do not "necessarily establish" that all allegedly similar Corsair products were misleading in the same way. The Plaintiffs argue that their new allegations, which put two different types of Corsair memory products at issue, plausibly plead that their injury is "substantially similar" to that of class members who purchased other Corsair memory sticks such that they may assert claims on their behalf. Judge Breyer denies Corsair's motion with respect to Corsair's DDR-4 products that the Plaintiffs did not purchase but grants it with respect to Corsair's DDR-5 products. He finds that the Plaintiffs have plausibly pleaded this "substantial similarity" with respect to Corsair's DDR-4 memory sticks. However, the same cannot be said of their allegations with respect to Corsair's DDR-5 memory sticks. Any such similarity between the DDR-4 and DDR-5 memory sticks is not obvious on the face of the complaint. Absent such a showing, the Plaintiffs do not have standing to allege an injury on behalf of purchasers of DDR-5 memory sticks. Because Plaintiffs had a prior opportunity to amend their complaint on this claim and failed to plausibly plead substantial similarity as to the DDR-5 products, the dismissal of the claims for DDR-5 products is without leave to amend. Corsair then argues that the Plaintiffs' national and multistate class allegations for violation of 43 other states' consumer protection statutes should be stricken on standing grounds, because California choice-of-law analysis requires the application of each state's laws to the claims of class members from those states. Judge Breyer holds that given that the application of the governmental-interests test comes out in favor of applying foreign law, each class member's individual consumer protection claims must be governed by the laws of their home state and the Plaintiffs cannot bring a nationwide class on those foreign class members' behalf. He thus strikes these claims without leave to amend, because the Plaintiffs had the opportunity to amend their complaint to narrow these claims considering Corsair's prior argument on this issue and failed to do so. Corsair also makes two arguments for dismissal of the Plaintiffs' express warranty claims: (1) the Plaintiffs have not specified which state's laws apply to those claims, thus depriving Corsair of fair notice; and (2) even if the Plaintiffs allege a violation of California law, they fail to plausibly plead that Corsair's representation constituted an "unequivocal guarantee. Judge Breyer finds that, while the Plaintiffs have not pleaded that they bring their express warranty claim under California law, if it they were to do so, that pleading would survive a motion to dismiss. Thus, he grants Corsair's motion to dismiss, allowing the Plaintiffs leave to amend to clarify that they bring their express warranty claims under California law. For the foregoing reasons, Judge Breyer grants Corsair's motion to dismiss as to (1) omission claims; (2) DDR-5 products that the Plaintiffs did not purchase; (3) national and multistate class allegations; and (4) breach of express warranty claims. He denies Corsair's motion as to DDR-4 products that the Plaintiffs did not purchase. Leave to amend is granted to allow the Plaintiffs to plead that their express warranty claims are brought under California law. It is denied as to all other dismissed claims. The Plaintiffs may file their amended complaint within 21 days of the Order. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/29j4a4cv from Leagle.com. CORTECH WEST STAFFING: White Suit Removed to E.D. California ------------------------------------------------------------ The case captioned as Curtis White, on behalf of himself and all similarly aggrieved employees v. CORTECH WEST STAFFING, LLC, THYSSENKRUPP MATERIALS NA, INC., THYSSENKRUPP SUPPLY CHAIN SERVICES NA, Inc., TESLA, INC. dba TESLA MOTORS, INC., and DOES 1 through 50, inclusive, Case No. STK-CV-UOE-2022-0009807 was removed from the Superior Court of the State of California, County of San Joaquin, to the United States District Court for the Eastern District of California on Dec. 19, 2022, and assigned Case No. 2:22-cv-02270-WBS-AC. Although the Complaint does not identify a specific number of alleged damages, the Plaintiff, generally, seeks: “1 hour of pay at each employee’s regular rate of compensation for each workday that a meal period was not provided;” “one 1 hour of pay at each employee’s regular rate of compensation for each workday that a rest period was not provided;” “that the Court grant an award to Plaintiff and the Class Members for Defendants willfully failing to pay wages due to Plaintiff and Class Members;” “for all actual, consequential and incidental losses and damages, according to proof or, alternatively, statutory penalties pursuant to California Labor Code;” “for statutory wage penalties in favor of Plaintiff and the Class Members that have left Defendants’ employment, pursuant to California Labor Code; and “for damages and/or penalties pursuant to statute as set forth in California Labor Code.[BN] The Defendants are represented by: Chad D. Greeson, Esq. Nicholas Gioiello, Esq. LITTLER MENDELSON, P.C. Treat Towers 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Phone: 925.932.2468 Fax: 925.946.9809 Email: cgreeson@littler.com ngioiello@littler.com - and - Brian D. Berry, Esq. MORGAN LEWIS & BOCKIUS LLP. One Market Spear Street Tower San Francisco, CA 94105 Phone: (415) 442-1176 Email: brian.berry@morganlewis.com - and - Tina M. Jacquez, Esq. SOLTMAN, LEVITT, FLAHERTY & WATTLES LLP 90 E. Thousand Oaks Blvd., Suite 300 Thousand Oaks, CA 91360 Phone: (805) 49707706 Email: tjacquez@slfesq.com CREED BOUTIQUE: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Creed Boutique, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Creed Boutique, LLC, Case No. 1:22-cv-07763 (E.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Creed Boutique -- https://creedboutique.com/ -- is an Anglo-French multi-national niche perfume house, based in Paris.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com DEFALCO CONSTRUCTION: Matute's Bid for Class Certification Granted ------------------------------------------------------------------ Justice Louis L. Nock of the New York Supreme Court, New York County, grants class certification in the lawsuit styled GUSTAVO MATUTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO AND GIACOMO V. GISONDA AND ANY OTHER, JOSE SALINAS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO AND GIACOMO V. GISONDA AND ANY OTHER, Plaintiffs v. DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO, GIACOMO V. GISONDA, ANY OTHER ENTITIES AFFILIATED WITH, CONTROLLING, OR CONTROLLED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., AND MICHAEL FALCO AND GIACOMO V. GISONDA INDIVIDUALLY, Defendants, Index No. 154387/2020 (N.Y. Sup.). The putative class representatives and three other putative class members allege that the Defendants each employed them in various construction trades and had a common practice of not paying their workers, including the putative class representatives, all of their earned wages at both prevailing and overtime rates (affidavits of the Class Plaintiffs). In addition, it is alleged that the Defendants failed to issue paystubs or issued inaccurate paystubs, deducted pay for unused lunch breaks, and did not distribute annual wage statements as required by Labor Law Section 195.1. In addition to the affidavits of the Class Plaintiffs, the Plaintiffs also submit work schedules, a sample of the putative class representatives' paychecks and a spreadsheet showing hours worked, and payment receipts. Judge Nock holds that these submissions are sufficient to certify a class action as requested by the motion. The Appellate Division, First Department, has repeatedly held that a class action is the preferred method for resolving wage and hour claims, such as those presented here. The claims of all the putative class members arise from the same alleged common practice of failing to pay accurate wages, Judge Nock notes. Further, and contrary to the Defendants' arguments regarding part-time versus overtime status and different trades and pay scales, the common claims predominate, and the putative class representatives' claims are typical of the class, especially as individual discrepancies may be easily resolved by reference to the Defendants' records to determine the accurate individual measures of damages. Judge Nock points out that inconsistencies in the evidence and testimony presented by the Plaintiffs are not, at this stage, a bar to class certification. The Defendants make no meritorious objections to the requirements of numerosity, or fair representation by the putative class representatives and their counsel of record, Virginia & Ambinder LLP, Judge Nock holds. Their claim that the employer Defendants are not actually related is unsupported by anything other than Defendant Michael Falco's essentially conclusory and self-serving affidavit. Finally, and with respect to those factors set forth in CPLR 902 not yet addressed, no objection is raised as to the propriety of this Court hearing the case, and no other litigation regarding this controversy has been filed. The Defendants' cross-motion, which seeks several items of relief, is denied in its entirety. As to whether Defendants X-treme Concrete Inc. and Michael Falco were properly served, the Court notes that these Defendants answered the complaint and failed to raise lack of jurisdiction as a defense. Accordingly, that defense has been waived. As to the timeliness of the motion for class certification, as the Plaintiffs correctly point out, the parties executed several stipulations extending the time for the Plaintiffs to seek class certification, and the Defendants may not now be heard to complain that the motion was untimely when it was made well within the time specified in the most recent such stipulation. Finally, to the extent that the Defendants seek to compel certain disclosures from the Plaintiffs, Judge Nock opines that the Defendants cite no authority requiring that such discovery be provided prior to certifying the class, and in any event the information sought may be obtained through the discovery process as this action continues and is not a "sound basis" for compelling further pre-certification discovery. The Court also notes that the Plaintiffs' representation that more than a year has passed since they provided responses to the Defendants' pre-certification discovery demands, and in that time, the Defendants failed to raise an objection to the responses until the instant motion practice. Accordingly, Judge Nock ordered that the motion by the Plaintiffs to certify this action as a class action pursuant to CPLR 901 and 902 is granted, and the class is to be defined as: all individuals who worked for Defalco Construction Inc., X-treme Concrete Inc., Liberty Ready Mix, Inc., and Michael Falco performing construction work including, but not limited to, carpentry, iron work, masonry, and concrete and cement work on construction projects throughout New York during the period from June 2014 through the present (the Class and Class Members). Publication of notice to the members of the class will proceed in accordance with the annexed publication order of even date herewith. The Defendants' cross-motion for various reliefs is denied in its entirety. Counsel are to appear for a preliminary conference in Room 1166, 111 Centre Street, in New York City, on March 8, 2023, at 10:00 a.m. A full-text copy of the Court's Decision dated Dec. 8, 2022, is available at https://tinyurl.com/m3ekzprf from Leagle.com. DEVELOPLUS INC: Shores Sues Over Unlawful Use of Biometric Data --------------------------------------------------------------- Jana Shores, individually and on behalf of all others similarly situated v. DEVELOPLUS, INC., Case No. 1:22-cv-07151 (N.D. Ill., Dec. 20, 2022), is brought against the Defendant violation of the Biometric Information Privacy Act by continuing to collect and store or facilitate the storage of biometric information or biometric identifiers without disclosure to or consent of any of the consumers who try on hair colors on their website, necessarily using the Defendant's Virtual Try-On tool to do so. In response to the ever-increasing prevalence and proliferation of biometric information collection (whether lawful or not), the Illinois General Assembly passed the Biometric Information Privacy Act of 2008. BIPA recognizes that because biometric information is "unlike other unique identifiers that are used to access finances or other sensitive information," in that it cannot be changed and is "biologically unique to the individual," special protections needed to be placed upon its use, collection, retention, and destruction. Recognizing that typical consumers are not equipped to defend themselves from large corporations bent on acquiring and monetizing their most private, unchangeable information, the Illinois Legislature, by enacting BIPA, gave consumers a powerful, protective tool. Despite consumer concerns regarding facial-scanning technology, and BIPA's clear mandate, the Defendant has refused, and continues to refuse, to inform users that it is using technology on its website to collect their biometric facial scans, and neither informs users that their biometric identifiers are being collected, nor asks for their consent. The Defendant invites consumers to virtually "try on" its high-end hair dye through its website's "Virtual Try-On" feature. Through this feature, visitors to the Defendant's website--including Plaintiff and the other Class members--are able to view themselves in an AI impression of themselves with a different hair color. All a user has to do is enable their computer or phone camera to engage a live video session or upload their photo to the website. But, unbeknownst to its website users--including Plaintiff and the other Class members--the Defendant collects detailed and sensitive biometric identifiers and information, including complete facial scans, of its users through the Virtual Try-On tool, and it does this without first obtaining their consent, or informing them that this data is being collected. The Defendant also fails to disclose to visitors of its website who use the Virtual Try-On tool—including Plaintiff and the other Class members—that their biometric information or biometric identifiers are being collected or stored. The Defendant also fails to provide users of a specific purpose for the collection of their biometric information or biometric identifiers, or a schedule setting out the length of time during which that biometric information or biometric identifiers will be collected, stored, used, or will be destroyed. The Defendant has violated BIPA--and continues to violate BIPA--each and every time a website visitor based in Illinois uses the Virtual Try-On tool, because the Defendant continues to collect and store or facilitate the storage of biometric information or biometric identifiers without disclosure to or consent of any of the consumers who try on hair colors on their website, necessarily using the Defendant's Virtual Try-On tool to do so, says the complaint. The Plaintiff used Developlus's website https://splathaircolor.com. DEVELOPLUS, INC. a multi-million-dollar haircare company.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC Yitzchak Zelman, Esq. 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (732) 695-3282 Email: yzelman@marcuszelman.com DIRECTBUY HOME: Rodriguez Suit Removed to C.D. California --------------------------------------------------------- The case captioned as Pedro Borja Rodriguez, on behalf of himself and others similarly situated v. DIRECTBUY HOME IMPROVEMENT, INC.; and DOES 1 to 100, inclusive, Case No. 22STCV25196 was removed from the Superior Court of the Superior Court of the State of California, County of Los Angeles, to the United States District Court for the Central District of California on Dec. 20, 2022, and assigned Case No. 2:22-cv-09226. The Complaint asserts the following nine causes of action: Failure to Pay Wages for All Hours Worked at Minimum Wage; Failure to Pay Overtime Wages; Failure to Authorize or Permit Meal Periods; Failure to Authorize or Permit Rest Breaks; Failure to Indemnify Employees for Employment-Related Losses/Expenditures; Failure to Timely Pay Earned Wages During Employment; Failure to Provide Complete and Accurate Wage Statements; Failure to Timely Pay All Earned Wages and Final Paychecks Due at Time of Separation of Employment; Unfair Business Practices in Violation of Business and Professions Code.[BN] The Defendants are represented by: Elizabeth Staggs Wilson, Esq. LITTLER MENDELSON, P.C. 633 West 5th Street, 63rd Floor Los Angeles, CA 90071 Phone: 213.443.4300 Fax: 213.443.4299 Email: estaggs-wilson@littler.com - and - Emily Mertes, Esq. LITTLER MENDELSON, P.C. 333 Bush Street, Suite 3400 San Francisco, California 94104 Phone: 415.433.1940 Fax: 415.399.8490 Email: emertes@littler.com DOMUS DESIGN CENTERS: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Domus Design Centers, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Domus Design Centers, Inc., Case No. 1:22-cv-07764 (E.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Domus Design Centers, Inc. -- https://www.ddcnyc.com/ -- is a furniture store, a sleek, modern & well-appointed shop in New York City specializing in contemporary European functional-chic furniture, linens, and accessories.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com E.I. DU PONT: Lynn Sues Over Contaminated of Water Supplies ----------------------------------------------------------- Ian Lynn and Heather Lynn, and others similarly situated v. E.I. DU PONT DE NEMOURS AND COMPANY and THE CHEMOURS COMPANY, Case No. 1:22-cv-00751-DRC (Dec. 16, 2022), is brought for equitable relief, compensatory and punitive damages, costs incurred and to be incurred by Plaintiffs, and any other damages which the Court or jury may deem appropriate for bodily injury and property damage arising from the intentional, knowing, reckless and negligent acts and omissions of the Defendants in connection with contamination of human drinking water supplies used by the Plaintiffs. Since the early 1950's, in connection with its manufacturing operations, Defendant has used at the Plant one or more materials that contain, incorporate, include and/or degrade into perfluorooctanoic acid (hereinafter referred to as "PFOA") and/or ammonium perfluorooctanoate (a/k/a C-8/APFO/PFOA) (hereinafter referred to as "C-8"). During the course of its operations at the Plant, Defendant has negligently, recklessly, maliciously, knowingly, carelessly, wrongfully and/or intentionally allowed, caused, and/or otherwise permitted and is continuing to so allow, cause and/or otherwise permit C-8 to be discharged, vented, emitted and/or otherwise released from the Plant into the environment at, under and/or surrounding the Plant, including into air, soil, sediment and water, in such a manner as to result in C-8 contamination of human drinking water supplies (hereinafter referred to as the "Releases"). Since the construction of its manufacturing operations at the Plant, Defendant has been aware that one or more operations and equipment used at the Plant involving C-8 would allow and/or permit Releases. Despite such knowledge, Defendant has negligently, recklessly, maliciously, knowingly, carelessly, wrongfully and/or intentionally conducted such operations and/or used such equipment with the understanding and/or expectation that such Releases would and/or could occur, and/or were likely to occur, without additional control and/or abatement equipment in place. Defendant, being conscious of the Releases, the probable injuries resulting from exposure to C-8, and its negligent acts and/or omissions, consciously, recklessly, and intentionally failed to exercise ordinary care and thereby breached its duty to Plaintiff, other exposed individuals, and the general public. Defendant knew or should have known that Plaintiff, other exposed individuals, and the general public would foreseeably suffer injury as a result of Defendant's failure to exercise ordinary care, as set forth above. But for Defendant's negligent acts and/or omissions, Plaintiff would not have consumed and/or been exposed to unhealthy levels of C-8, and/or would not have continued to consume the contaminated drinking water. Defendant's negligence was the direct and proximate cause of Plaintiff's injuries, harm, and economic loss which Plaintiff suffered and/or will continue to suffer. As a direct and proximate result of the foregoing acts and/or omissions, Plaintiff was caused to suffer serious and dangerous injuries, including testicular cancer, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain, and mental anguish, including diminished enjoyment of life, as well as the need for lifelong medical treatment and/or medications. As a result of Defendant's negligent, improper, inadequate, inappropriate and/or otherwise unlawful conduct in its ownership, operation, maintenance, management and/or control of the Plant, Plaintiffs have suffered injuries for which they seek redress and damages, says the complaint. The Plaintiff, Ian Lynn and Plaintiff's spouse, Heather Lynn, who are current residents and citizens of Ohio. The Defendant owned, operated, maintained, managed and/or otherwise controlled a manufacturing facility in Wood County, West Virginia, known as the "Washington Works Plant."[BN] The Plaintiff is represented by: Jon C. Conlin, Esq. F. Jerome Tapley, Esq. Mitchell Theodore, Esq. Brett Thompson, Esq. CORY WATSON, P.C. 2131 Magnolia Ave., Suite 200 Birmingham, AL 35205 Phone: 205-328-2200 Fax: 205-324-7896 Email: jconlin@corywatson.com jtapley@corywatson.com mtheodore@corywatson.com bthompson@corywatson.com FLORIDA: Midgett Bid for Class Certification Tossed --------------------------------------------------- In the class action lawsuit captioned as MICHAEL D. MIDGETT, v. FLORIDA,. Case No. 3:22-cv-10378-TKW-ZCB (N.D. Fla.), the Hon. Judge T. Kent Wetherell, II entered an order: 1. The magistrate judge's Reports and Recommendation are adopted; 2. The Plaintiff's motion for class certification is denied. 3. The Plaintiff's motions for emergency injunctive relief are denied. 4. This case is recommitted to the magistrate judge for further proceedings. Florida is the southeasternmost U.S. state, with the Atlantic on one side and the Gulf of Mexico on the other. A copy of the Court's order dated Dec. 16, 2022 is available from PacerMonitor.com at https://bit.ly/3PzA4d2 at no extra charge.[CC] FORD MOTOR: Weidman's Bid to Exclude Walker Opinion Granted in Part ------------------------------------------------------------------- In the case, PAUL WEIDMAN, et al., Plaintiff v. FORD MOTOR COMPANY, Defendants, Case No. 18-cv-12719 (E.D. Mich.), Judge Gershwin A. Drain of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants in part and denies in part the Plaintiffs' Motion to Exclude Defendant's Expert James Walker Jr., filed on June 23, 2021. The instant product liability class action involves certain model years 2013-2018 Ford F-150s that all contain a purported defective brake master cylinder that can cause sudden and unexpected loss of hydraulic brake fluid pressure, resulting in diminished braking ability. Ford's expert, James Walker, Jr., has provided his commonality opinions concerning the Class Vehicles. Specifically, Mr. Walker has opined that the Class Vehicles do not share a common component design or manufacturing process and the existence of the defect is not a class-wide question with entirely common evidence. Presently before the Court is the Plaintiffs' Motion to Exclude Defendant's Expert James Walker Jr. The Defendant filed a Response on July 20, 2021. A reply was filed on Aug. 3, 2021. A hearing was held on Dec. 7, 2022. Mr. Walker has more than 30 years of automotive engineering experience including component design, vehicle dynamics, electro-mechanical control system development, failure analysis, and crash reconstruction -- including extensive experience with brake systems specifically. Mr. Walker has more than 30 years of automotive engineering experience including component design, vehicle dynamics, electro-mechanical control system development, failure analysis, and crash reconstruction—including extensive experience with brake systems specifically. From 1989 until 1995, he was employed as a Powertrain System Test Engineer at a division of General Motors, where he was responsible for the specification, design, and testing of multiple vehicle systems and components. In 1994, he received a bachelor's degree in Automotive Mechanical Engineering from General Motors Institute in Flint, Michigan. From 1995 until 2006, he was employed as a Brake Controls Engineer and Manager at a variety of automotive manufacturers and industry-leading suppliers of hydraulic brake systems and electronic brake and chassis control systems, including Kelsey-Hayes, Saturn Corporation (a division of General Motors), the Robert Bosch Corporation, Ford Motor Company, and Delphi. In these roles, Mr. Walker was responsible for the specification, design, calibration, testing, integration, and validation of hydraulic brake systems and electronic brake and chassis control systems. From 2006 until the present, Mr. Walker has been employed as a Principal Engineer at Carr Engineering, Inc., where his role includes evaluating braking capacities, acceleration capacities, handling capacities, stability capacities, and the possible interactions with active chassis and brake control systems such as anti-lock braking systems, traction control systems, and electronic stability control. As a result of his professional work, Mr. Walker has been commissioned by SAE International (previously the Society of Automotive Engineers), an international organization with more than 100,000 members, to create and instruct five separate Professional Development Seminars in the areas of hydraulic brake systems, electronic brake control systems, and vehicle dynamics. Hundreds of automotive industry engineers have attended these courses since their inception, and in recognition of the quality of the seminars, he was awarded the SAE Forest R. McFarland Award in 2005 and was designated as an SAE Master Instructor in 2010. He was also commissioned by CarTech Books to author a book focusing on brake system design and analysis. Published in 2007, High-Performance Brake Systems has sold nearly ten thousand copies worldwide and has been reprinted three times. Based on Mr. Walker's education and experience, Judge Drain concludes that Mr. Walker is qualified to provide expert testimony on brake systems. The Plaintiffs argue Mr. Walker's commonality opinions conflict with the testimony of Ford's own engineers. Moreover, they assert his opinion is based on an unreliable methodology because he conducted no independent investigation or analysis but simply parroted the data from Ford's documents. They further argue Mr. Walker has offered mere speculation relative to an acceptable rate of brake failure. Finally, they maintain Mr. Walker is not qualified to draw a legal conclusion on whether the Brake System Defect is a "class-wide" question with common evidence under Rule 23. Judge Drain finds that (i) he cannot conclude as a matter of law that Mr. Walker's opinion "clearly contradicts" the testimony of Ford's engineers; (ii) there is no requirement that an expert must physically inspect or test items on which they offer an opinion; (ii) Mr. Walker's engineering background allows him to understand the master cylinder design and manufacturing changes and their impact in ways that the average jury member may not appreciate, meaning his opinions would assist the trier of fact; and (iv) while Mr. Walker may offer opinions regarding similarities and differences among the brake master cylinders in Class Vehicles, he cannot offer legal opinions as to whether use of Rule 23's class mechanism is appropriate in the case and it will be excluded from trial. Accordingly, for the reasons he articulated, Judge Drain grants in part and denies in part the Plaintiff's Motion to Exclude the Expert Testimony of James Walker, Jr. A full-text copy of the Court's Dec. 16, 2022 Opinion & Order is available at https://tinyurl.com/yc8ajdp6 from Leagle.com. GEORGIA: Bid to Start Class Action in Frilando v. Oliphant Denied ----------------------------------------------------------------- Judge William T. Moore, Jr., of the U.S. District Court for the Southern District of Georgia, Savannah Division, denies the Petitioner's motion to start a class action in the lawsuit titled JOHN FRILANDO, Petitioner v. CALVIN OLIPHANT and WARDEN MICHAEL LONG, Respondent, Case No. CV422-066 (S.D. Ga.). Before the Court is the Magistrate Judge's Oct. 18, 2022 Report and Recommendation, to which the Petitioner has not filed an objection. After careful review of the record, the report and recommendation is adopted as the Court's opinion in this case. Judge Moore rules that the Petitioner's motions "to start a class action" and to file an "amended complaint" are denied. To the extent the Petitioner's Motion to Amend sought to assert claims related to the conditions of his confinement, he denies in part, and it is also dismisses in part. The Petitioner's motion to quash indictment is also dismissed as moot. A full-text copy of the Court's Order dated Dec. 8, 2022, is available at https://tinyurl.com/b2p2hkta from Leagle.com. GROCERY DELIVERY: Settlement Approval in Murray TCPA Suit Reversed ------------------------------------------------------------------ In the case, GRACE MURRAY; AMANDA ENGEN; STEPHEN BAUER; JEANNE TIPPETT; ROBIN TUBESING; NIKOLE SIMECEK; MICHELLE McOSKER; JACQUELINE GROFF; HEATHER HALL, on behalf of themselves and all others similarly situated, Plaintiffs, Appellees v. GROCERY DELIVERY E-SERVICES USA INC., d/b/a HelloFresh Defendant, Appellee, SARAH McDONALD, Objector, Appellant, Case No. 21-1931 (1st Cir.), the U.S. Court of Appeals for the First Circuit vacates the district court's approval of the proposed settlement and remands for further proceedings consistent with its Opinion. The First Circuit considers a challenge to the approval of a class-action settlement under Federal Rule of Civil Procedure 23(e). HelloFresh is a subscription service that ships a recipe and ingredients for a meal to your doorstep. In 2015, HelloFresh initiated a so-called "win back" marketing campaign, in which it used telemarketing contractors to contact former subscribers in an attempt to win them back as customers. The Plaintiffs allege that this marketing campaign violated the Telephone Consumer Protection Act (TCPA) in three different ways: (1) by using an automated dialer to place marketing calls to some people, 47 U.S.C. Section 227(b)(1)(A); (2) by calling some people listed on the National Do-Not-Call (NDNC) registry, 47 U.S.C. Section 227(c)(5); 47 C.F.R. Section 64.1200(c)(2); and (3) by calling some people who had requested that HelloFresh not call them (and therefore were required to be on HelloFresh's federally mandated internal do-not-call (IDNC) list), 47 U.S.C. Section 227(c)(5); 47 C.F.R. Section64.1200(d). These three claims are called, respectively, the Auto-Dialer claim, the NDNC claim, and the IDNC claim. After litigation commenced, HelloFresh entered mediated settlement discussions with the named Plaintiffs. In the settlement negotiations, the Plaintiffs' counsel acted jointly on behalf of all prospective class members possessing one or more of the three potential claims arising out of HelloFresh's "win back" campaign. The parties eventually arrived at a proposed settlement conditioned on court approval. The district court preliminarily approved the settlement, pursuant to which HelloFresh agreed to pay $14 million to a settlement class. For purposes of the settlement only, it certified a single class, with no subclasses, consisting of about 4.8 million customers and former customers defined as follows: All persons in the United States from Sept. 5, 2015 to Dec. 31, 2019 to whom HelloFresh, either directly or by a vendor of HelloFresh, (a) placed one or more calls on their cellphones via a dialing platform; (b) placed at least two telemarketing calls during any 12-month period where their phone numbers appeared on the NDNCR for at least 31 days before the calls; and/or (c) placed one or more calls after registering the landline, wireless, cell, or mobile telephone number on HelloFresh's Internal Do-Not-Call List. Email notice to 4.4 million class members and post card notice to 400,000 class members ensued. Approximately 100,000 class members submitted valid claims, while 270 opted out. Under the settlement as preliminarily approved, each class member who submitted a valid claim would have received about $89 (net of proposed counsel fees and expenses). Three individuals filed objections. One contended that HelloFresh should pay nothing. Another asserted that class members were not being paid enough. The third objector -- Sarah McDonald, appellant here -- filed the most substantial objections. McDonald contended the settlement sold out class members who were on the NDNC registry -- whose claims she says are the most valuable --— by placing them on equal footing with members in the other two groups, whose claims she says are virtually worthless. McDonald also objected to the use of incentive awards for the named Plaintiffs. At a follow-up hearing on June 9, 2021, the court rejected the settlement because of the arbitration issue. It explained that it would approve the settlement if HelloFresh would not require the arbitration of any future claim by any class member, to ensure that "HelloFresh will not, in the future, use a consumer mandatory arbitration clause as a cover." The court did not express any concerns about the amount of the settlement fund. The parties then submitted an amended settlement agreement that addressed the court's arbitration concerns. Under the amendment, HelloFresh agreed that it would not seek to compel arbitration of future TCPA claims that class members might bring. On the final day of the hearing, Sept. 29, 2021, the district court began by stating that each class member submitting a claim should receive more of the settlement award -- $100 rather than $89. This was in line with one of McDonald's concerns. The district court explained that this change would reduce class counsel's share from about 33% to about 25.5%. After HelloFresh and class counsel agreed to the adjustment, the district court approved the settlement as "fair, adequate, and reasonable." It did not provide detailed reasoning for rejecting most of the objections. The court decided to adopt the settlement agreement with a payout to each claimant of $100 and the attorneys' fees, and it entered an order and judgment on Oct. 15, 2021, certifying the proposed class for purposes of a settlement and approving the proposed settlement. McDonald timely appealed the approval of the settlement. Her principal argument on appeal rests on the contention that persons like her who signed up on the NDNC registry had materially stronger and more valuable claims than other class members without NDNC claims. Therefore, she reasons, it was inadequate for these groups to be represented by the same counsel in determining whether and to what extent their shares of the settlement proceeds should differ. And she contends that this unfair process led to an inequitable result in which all class members received equal shares, even though some had more valuable claims. McDonald also raises a separate argument that the inclusion of incentive awards for the class representatives rendered the settlement defective. The First Circuit finds that the class as certified consists of class members with claims having significantly different elements and facing some very different defenses. Furthermore, it cannot say that the relative values of all of those different claims are sufficiently clear-cut so as to enable a court to approve a proposed apportionment of a common fund among the claimants in the absence of any informed arm's-length negotiation. Given these findings, the district court lacked the requisite basis for certifying the settlement class and approving the allocation of the $14 million among class members as fair, reasonable, and adequate. None of this is to say that a settlement like the proposed settlement cannot be approved, the First Circuit points out. Arms-length negotiators might assess the differences in claim value as too insignificant to warrant the delay, expenses, and risk of foregoing a global settlement. Such a conclusion put forward collectively by counsel for each distinct group would provide a structural assurance of adequacy and fairness that is now missing. And the district court would have a significantly more developed record upon which it can exercise its discretion under Rule 23(e). Finally, the First Circuit rejects McDonald's contention that incentive payments are categorically improper. And it otherwise sees no basis in the record to conclude that the district court abused its discretion in entertaining the approval of incentive payments in the case. The First Circuit also notes that McDonald's argument might be said to apply similarly to attorneys' fees, yet McDonald does not suggest that the payment of a fee to the class counsel out of the settlement proceeds raises a conflict that categorically bars such payments. In either instance, a categorical prohibition on payments to those who make a class recovery possible would likely work to the disadvantage of those who might have otherwise benefited by a class recovery. For the foregoing reasons, the First Circuit vacates the district court's approval of the proposed settlement and remands for further proceedings consistent with its Opinion. Costs are taxed in favor of McDonald and against the Appellees, jointly and severally. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/2bjepdu6 from Leagle.com. Eric Alan Isaacson, with whom C. Benjamin Nutley was on brief, for the Appellant. Stacey Slaughter, with whom Brenda L. Joly, Marcus A. Guith, Robins Kaplan LLP, Anthony I. Paronich -- anthony@paronichlaw.com -- Samuel J. Strauss -- sam@turkestrauss.com -- and Turke & Strauss LLP were on brief, for Appellees Grace Murray, Amanda Engen, Stephen Bauer, Jeanne Tippett, Robin Tubesing, Nikole Simecek, Michelle Mcosker, Jacqueline Groff, and Heather Hall. Shannon Z. Petersen -- spetersen@sheppardmullin.com -- with whom Karin Dougan Vogel -- kvogel@sheppardmullin.com -- and Sheppard, Mullin, Richter & Hampton LLP were on brief, for Appellee Grocery Delivery E-Services USA Inc. HERITAGE PROPERTY: Riley Suit Stayed Pending Dismissal Bid Ruling ----------------------------------------------------------------- In the case, Joan Riley and Linda Scott, individually and on behalf of all others, similarly situated, Plaintiffs v. Heritage Property & Casualty Insurance Company, Defendant, Civil Action No. 22-22893-Civ-Scola (S.D. Fla.), Judge Robert N. Scola, Jr., of the U.S. District Court for the Southern District of Florida grants Heritage's request for a temporary stay of discovery, pending the Court's resolution on its motion to dismiss. Plaintiffs Riley and Scott, each purchaser of residential property insurance policies from Heritage, seek to recover interest they say they are owed on claims that they acknowledge were otherwise fully paid by Heritage. In response, Heritage has filed a motion to dismiss, submitting the Plaintiffs' claims are barred because they are based solely on Florida Statute section 627.70131(5)(a). Heritage now asks the Court to stay discovery, pending the Court's resolution. The Plaintiffs object to the stay, rearguing the merits of their opposition to Heritage's motion to dismiss, insisting they are suing for breach of contract, not for relief solely under section (5)(a). Heritage has timely replied. Having considered the parties' arguments and for the following reasons, Judge Scola finds a limited stay in the case warranted and therefore grants Heritage's request for a temporary stay of discovery. After a "preliminary peek" at Heritage's motion to dismiss, and the concomitant briefing, Judge Scola finds the issues raised appear to be both "clearly meritorious and truly case dispositive." He says if the motion to dismiss is granted in its entirety, which at this preliminary stage appears likely, the need for any discovery in this proceeding will, as Heritage explains, be eliminated altogether. Further, the Plaintiffs' do not identify any harm or prejudice that would outweigh the efficiencies gained as a result of the temporary pause in the litigation of the case. The Plaintiffs will be afforded sufficient opportunity to conduct fulsome discovery if any of their claims advance in the Court. Judge Scola, thus, finds a stay warranted and grants Heritage's motion to stay. Discovery is therefore stayed until the Court issues its order on Heritage's motion to dismiss. If the motion is ultimately denied discovery must immediately move forward. The parties must file an amended joint discovery plan and conference report within seven days if the Court denies Heritage's motion. While discovery is stayed, the parties may not take any action related to discovery. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/442fctpj from Leagle.com. INTRUSION INC: $3.25MM Class Deal in Celeste Suit Wins Final Nod ---------------------------------------------------------------- In the case, JAMES CELESTE, Individually and On Behalf of All Others Similarly Situated. GEORGE NEELY, ET AL., Individually and On Behalf of All Others Similarly Situated v. INTRUSION INC., ET AL., Civil Nos. 4:21-CV-307-SDJ LEAD CASE, 4:21-CV-374-SDJ (E.D. Tex.), Judge Sean D. Jordan of the U.S. District Court for the Eastern District of Texas, Sherman Division: a. grants the Lead Plaintiff Andrew Bronstein's Unopposed Motion for Final Approval of Class Action Settlement and Plan of Allocation; and b. grants the Lead Counsel's Motion for Award of Attorneys' Fees and Reimbursement of Expenses. Bronstein and Intrusion have agreed to settle the claims in this consolidated class action for $3.25 million. The proposed settlement arises from more than a year of litigation surrounding Intrusion's alleged efforts to artificially boost its share price through misrepresentations regarding a new cybersecurity product: "Intrusion Shield." After obtaining preliminary approval of the proposed class settlement on Aug. 17, 2022, Bronstein and the class counsel now seek final approval and an award of attorney's fees and expenses. Intrusion is a publicly traded cybersecurity company. In the summer of 2020, it developed a new product that would supposedly "revolutionize the network security industry." Intrusion described this new product, Intrusion Shield, as blocking cyberthreats more effectively than existing technologies on the market because it combined state-of-of the-art artificial intelligence tools with a proprietary database of 2.7 billion malicious IP addresses. Intrusion's representations of Intrusion Shield allegedly boosted its stock price to over $28 per share by April 2021. But within a few months, Intrusion's stock price dropped to under $4.00 per share. Bronstein alleges that the stock price dropped because Intrusion Shield did not perform as investors expected. Far from revolutionizing the industry, it merely repackaged existing products. And instead of shutting down cyberthreats, it shut down customer computer networks. Bronstein also alleges that, based on employee reports and third-party research, Intrusion's representations about the product were not just false but knowingly false and calculated to boost Intrusion's stock price ahead of a potential sale. Intrusion's alleged misrepresentations regarding Intrusion Shield gave rise to two federal securities class actions in this Court: one filed in April 2021, and the other filed in May of the same year. After consolidating these cases, appointing Bronstein as the Lead Plaintiff, and appointing The Rosen Law Firm, P.A. as the class counsel (and Steckler Wayne Cochran Cherry, PLLC as the liaison counsel), the Court ordered Bronstein to file an amended complaint. Bronstein filed the amended complaint on Feb. 7, 2022, asserting two causes of action under the Securities Exchange Act of 1934: (1) violation of Section 10(b) against all Defendants; and (2) violation of Section 20(a) against the individual Defendants. The amended complaint asserted damages against Intrusion under a "fraud-on-the-market" theory--seeking to hold the company responsible for artificially boosting its share price through alleged misstatements regarding Intrusion Shield. The class counsel diligently litigated the case, achieving a proposed class settlement in June 2022. The proposed class settlement disposes of all claims in the consolidated class action for $3.25 million. This value represents 7.61% of the maximum possible damages that could have been recovered at trial, according to Bronstein's damages calculations. The proposed class settlement disposes of all claims in this consolidated class action not only between Bronstein and Intrusion, but also between Intrusion and the proposed class members. The proposed class includes any person or entity who purchased (or otherwise acquired) Intrusion stock between Oct. 14, 2020, and Aug. 26, 2021. Each class member would receive a pro rata share of the settlement fund based on the number of shares purchased during the relevant period, accounting for both the purchase price and the sale price. Following the Court's preliminary approval of the proposed class action settlement on Aug. 17, 2022, Bronstein diligently notified the potential class members of the proposed settlement. Over 1,000 potential class members responded to the notice. Significantly, no class members objected to the proposed settlement. And only two class members requested exclusion from the proposed settlement. Those two requests are invalid, however, because they did not comply with basic requirements for submitting a request for exclusion. Bronstein now moves for final approval of the proposed class settlement and for attorney's fees and expenses. Intrusion does not oppose these motions. Judge Jordan held a settlement fairness hearing on Nov. 30, 2022, to evaluate the proposed settlement's fairness, reasonableness, and adequacy to all class members. No class members appeared at the hearing. The Nov. 9, 2022, deadline for objecting to the proposed class settlement or requesting exclusion from it has passed. Judge Jordan opines that the parties and the counsel have diligently litigated these consolidated cases and achieved a favorable settlement not only for the named parties, but also for the absent class members. He says the reasonableness of the settlement is reflected by the lack of any objection to it. He finds that the proposed settlement should be approved, the class certified, and the requested fees and expenses awarded. Therefore, Judge Jordan finally approves the proposed settlement agreement, as fair, reasonable, and adequate under the Federal Rules of Civil Procedure. Its terms will bind all the class members. He finally certifies a class of persons or entities that purchased or otherwise acquired Intrusion, Inc. common stock between Oct. 14, 2020, and Aug. 26, 2021, both dates inclusive, and were damaged thereby. Judge Jordan dismisses with prejudice all claims in the action between the class and the Defendants. He approves the parties' proposed allocation plan as a fair and reasonable method of allocating the settlement fund among class members. He directs the parties to distribute through the claims administer the settlement fund in accordance with the settlement agreement and stipulation. Judge Jordan awards (i) the class counsel $1,083,332 in attorney's fees and $35,216.89 in expenses and (ii) Lead Plaintiff Bronstein $5,000 for expenses. A full-text copy of the Court's Dec. 16, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/3xdma2bp from Leagle.com. LYFT INC: $25-MM Class Deal in Securities Suit Has Prelim. Approval ------------------------------------------------------------------- In the case, IN RE LYFT INC. SECURITIES LITIGATION, Case No. 19-cv-02690-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California grants the parties' motion for preliminary approval of class action settlement. The Plaintiffs purchased shares of Lyft's common stock when Lyft went public through an Initial Public Offering ("IPO") on March 28, 2019. They bring this securities class action against Lyft and certain of its officers and directors regarding representations in Lyft's IPO Registration Statement. The Plaintiffs allege that the Registration Statement misrepresented and failed to disclose (1) the potential for reputational damage and legal liability due to sexual assault allegations against drivers; (2) that Lyft's market share was shrinking because of a price war with Uber; and (3) safety issues with Lyft's bike sharing program. Based on these allegations, they assert causes of action for violations of Sections 11 and 15 of the Securities Act of 1933, 15 U.S.C. Sections 77k, 77o. In August 2021, the Court certified a class of "all persons and entities who purchased or otherwise acquired the common stock of Lyft issued and traceable to the IPO Registration Statement." It appointed Rick Keiner as the Class Representative and Block & Leviton LLP as the Class Counsel. Certain members of the proposed Settlement Class are also the proposed lead plaintiffs ("State Plaintiffs") in a related putative class action ("State Action") pending in California Superior Court, In re Lyft, Inc. Securities Litigation, No. CGC-19-575293 (Cal. Super. Ct., S.F. Cnty.). The State Plaintiffs who had previously opted out of the class sought to intervene in the present case. After the preliminary approval hearing, the parties agreed to allow those who had opted out of the class to opt back in. The State Plaintiffs withdrew their motion to intervene as moot. In November 2021, the parties participated in formal mediation with David Murphy of Phillips ADR. In February 2022, the parties agreed in principle to the mediator's recommendation to settle for $25 million. In June 2022, they executed a settlement agreement. In response to concerns raised by the Court at the preliminary approval hearing in September 2022, the parties executed a revised settlement agreement. The primary changes to the settlement agreement were (1) a revised definition of "Released Claims," (2) a provision allowing those who opted out of the class to opt back in, and (3) a revised allocation plan that allowed class members to receive a minimum of $10. After the court raised additional concerns about the proposed cy pres recipient, the parties submitted a further revised settlement agreement in November 2022. The key terms are as follows: a. Class Definition: The Settlement Class is defined as "all persons and entities who purchased or otherwise acquired the common stock of Lyft issued and traceable to the IPO Registration Statement (between March 28, 2019, and Aug. 19, 2019)." b. Settlement Benefits: Lyft will make a $25 million non-reversionary payment. It will pay into an interest-bearing escrow account in three installments: $500,000 to cover reasonable class notice costs within 10 days of preliminary approval and receipt of instructions from Lead Counsel, half of the remainder at least five days before the final approval hearing, and the rest within ten days of final approval. c. The settlement fund includes notice and administration expenses, taxes and tax expenses, Court-approved attorneys' fees and costs, any award to the Lead Plaintiff as allowed under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), and any other Court-approved fees or expenses. Payments to class members will be distributed per the allocation plan on a pro rata basis. Each class member must submit a proof of claim and release form to the Claims Administrator within 90 days of the notice date to be eligible for payment. Payments will be calculated based on the "recognized loss" for each share, using a method that tracks the statutory formula under Section 11 of the Securities Act. The estimated average recovery per share is 77 cents and authorized claimants will receive a minimum of $10. d. Cy Pres Distribution: The Defendants will not have a reversionary interest in the settlement fund if there is a balance remaining after distribution. Instead, the Lead Counsel will make further distributions to authorized claimants until the balance remaining is de minimis. Any remaining balance will be donated to the Bluhm Legal Clinic Center for Litigation and Investor Protection at Northwestern University Pritzker School of Law. e. Release: Under the Settlement Agreement, the Lead Plaintiff and the Class will release any and all claims and causes of action of every nature and description whatsoever as against the Released Defendant Parties, that have been or could have been asserted in this or any other action. It includes "Unknown Claims" as defined in the Settlement Agreement. f. Class Notice: A third-party settlement administrator will mail class notice and claim forms to all shareholders previously identified by the administrator during the class certification notice period. The notice and proof of claim and release forms will also be posted on the settlement administrator website at www.LyftIPOLitigation.com. The notice will be published once in the national edition of The Wall Street Journal and once over a national newswire service. g. Opt-Out Procedure: The deadlines for a class member to opt out or object to the settlement are twenty-one days and thirty-five days prior to the final approval hearing, respectively. The Defendant retains the right to withdraw if the number of opt-outs reaches an agreed-upon threshold. The threshold is set out in a confidential supplemental agreement, which the parties have filed provisionally under seal for the Court's review. h. Miscellaneous Provisions: The Defendants will, "as soon as reasonably practicable following entry of Judgment, move for the denial with prejudice of class certification in the State Action." i. Service Award: The Lead Plaintiff may apply for reimbursement of reasonable costs and expenses related to representation of the Class, not to exceed $10,000, consistent with the PSLRA and subject to the Court's approval. j. Attorneys' Fees and Costs: The Class Counsel intends to file an application for attorneys' fees not to exceed 25% of the settlement fund, or $6.25 million, and costs not to exceed $550,000 for litigation expenses reasonably incurred while prosecuting the case. The Court previously certified a class under Federal Rule of Civil Procedure 23(b)(3). Judge Gilliam finds that the proposed Settlement Class is identical to the class already certified by the Court. He finds that the added allegations do not alter his Rule 23 analysis. The class members continue to share the same legal claims under the Securities Act. Accordingly, he says there is no need to revisit the Court's prior analysis and he provisionally certifies the Settlement Class. Finding that provisional class certification is appropriate, Judge Gilliam considers whether he should preliminarily approve the parties' class action settlement. Having reviewed the supplemental agreement provisionally filed under seal, he concludes that the termination provision is fair and reasonable; and there is no obvious deficiencies in the settlement agreement. For these reasons, he preliminarily finds that the settlement agreement is fair, reasonable, and adequate, and grants preliminary approval. He directs the parties to include both a joint proposed order and a joint proposed judgment when submitting their motion for final approval. Judge Gilliam also must preliminarily approve the plan of allocation. He says the Plan of Allocation uses a recognized loss value that tailors each class member's recovery to the timing of any sales or purchases of common stock, as well as the number of shares at issue for each class member's claim. The calculations will be made using the damages formula of Section 11(e). The settlement fund will thus be distributed on a pro rata basis according to each class member's recognized loss. He preliminarily approves the allocation plan. Finally, Judge Gilliam has carefully reviewed the proposed class notice, as revised, and is satisfied that it meets the requirements of the PSLRA and the Federal Rule of Civil Procedure 23(c)(2)(B). For the notice plan, the Lead Plaintiff has selected A.B. Data as Claims Administrator. The Court previously approved A.B. Data after the class was certified, and A.B. Data thoroughly carried out a notice plan for class certification. The notice plan this time is substantially similar and includes mailing all shareholders previously identified by A.B. Data, posting the notice on the website, and publishing the notice in The Wall Street Journal and once over a national newswire service. In light of the foregoing, Judge Gilliam grants the motion for preliminary approval. He directs the parties to meet and confer and stipulate to a schedule of dates for each event listed below, which will be submitted to the Court within seven days of the date of his Order: a. Deadline for Settlement Administrator to mail notice to all putative Class Members; b. Filing deadline for attorneys' fees and costs motion Filing deadline for incentive payment motion; c. Deadline for Class Members to opt-out or object to settlement and/or application for attorneys' fees and costs and incentive payment, at least 45 days after the filing of the motion for attorneys' fees and incentive payments; and d. Filing deadline for final approval motion Final fairness hearing and hearing on motions. The parties are further directed to implement the proposed class notice plan. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/4ckfx656 from Leagle.com. MALLINCKRODT PLC: Bid to Dismiss Strougo Securities Suit Denied --------------------------------------------------------------- In the case, BARBARA STROUGO, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. MALLINCKRODT PUBLIC LIMITED COMPANY, et al., Defendants, Civil Action No. 20-10100 (MAS) (TJB) (D.N.J.), Judge Michael A. Shipp of the U.S. District Court for the District of New Jersey denies the Motion to Dismiss Lead Plaintiff Canadian Elevator Industry Pension Trust Fund's Amended Complaint filed by Defendants Mark C. Trudeau, Matthew K. Harbaugh, George A. Kegler, Bryan M. Reasons, Kathleen A. Schaefer, Angus C. Russell, Melvin D. Booth, JoAnn A. Reed, Paul R. Carter, and Mark J. Casey. The lawsuit is a case about the Defendants allegedly underpaying rebates for the product H.P. Acthar Gel, which resulted in a federal securities class action on behalf of all purchasers of the common stock of Mallinckrodt between May 3, 2016 and March 18, 2020. The Lead Plaintiff asserts claims against certain of Mallinckrodt's senior executives and directors for violations of Section10(b) of the Securities Exchange Act of 1934 (the "Exchange Act," 15 U.S.C. Sections 78j(b) and 78t(a)) and Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder (17 C.F.R. Section 240.10b-5), as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"), Section 78u-4 (Count I), and for violations of Section 20(a) of the Exchange Act (Count II). As a remedy, it seeks compensatory damages in favor of the Plaintiff and the Class against all Defendants, jointly and severally, for all damages. Mallinckrodt is a pharmaceutical company whose highest selling product during the Class Period was Acthar, which generated at least 34% of the Company's net sales annually during this time. Acthar was approved by the Food and Drug Administration in 1952 under new drug application ("NDA") 008372 to treat numerous diseases. In June 2006, Questcor Pharmaceuticals, Inc. Acthar's then-owner, submitted a supplemental NDA ("sNDA") to the FDA to obtain approval for Acthar to treat infantile spasms, an indication not included in the FDA's original approval of Acthar. By August 2007, Questcor had raised Acthar's price to $23,000 per five milliliter vial in anticipation of receiving FDA approval to treat infantile spasms. In October 2010, the FDA approved adding infantile spasms to Acthar's label as an additional indication.On April 7, 2014, Trudeau announced that Mallinckrodt was acquiring Questcor for $5.6 billion. At this time, Acthar generated over 92% of Questcor's sales. After purchasing Acthar, Mallinckrodt continued to substantially increase its price. By July 2019, Acthar retailed for over $40,000 per five milliliter vial. This made Acthar the single most expensive drug reimbursed by Medicare and Medicaid. The price of Acthar on a given date is significant because it determines the amount of rebate owed by Mallinckrodt under the Medicaid Drug Rebate Program ("MDRP"). The MDRP requires manufacturers to pay rebates in return for Medicaid guaranteeing coverage for their drugs. The Centers for Medicare and Medicaid Services ("CMS"), which runs the MDRP, requires manufacturers to submit the base date average manufacturer price ("AMP") for drugs so that CMS can calculate the rebates owed by the manufacturer. The rebate at issue is the difference, if any, between the average AMP for the current quarter and the "base date AMP," which is the inflation-adjusted AMP of a drug. Despite Acthar having been approved since 1952 to treat numerous diseases, Mallinckrodt pursued multiple clinical drug trials during the Class Period to expand the number of indications for Acthar to treat, in part to create alternative revenue streams in light of the significant CMS liability that the Company faced. According to a qui tam lawsuit brought by a former Mallinckrodt employee, Acthar was illegally marketed off-label by Mallinckrodt (the "Strunck Litigation"). The United States Department of Justice ("DOJ") moved to intervene in the Strunck Litigation on March 7, 2019. Investors learned about the Strunck Litigation on April 30, 2019. That same day, Mallinckrodt issued a press release admitting that it had "been in advanced settlement talks with the government over the past several months," i.e., around February 2019 or earlier, to resolve the Strunck Litigation. In other words, the Defendants were actively negotiating a resolution when the Company's Form 10-K was filed on February 26, 2019 (the "2018 Form 10-K") without disclosing that the Strunck Litigation was pending. The Strunck Litigation settled for $15.4 million in September 2019. The Lead Plaintiff contends that the Defendants' knowledge or reckless disregard of the improper avoidance of rebates pertaining to Acthar led to false and misleading statements about (1) Acthar's rebates, (2) the Acthar FY19 Guidance, (3) Mallinckrodt's Class Period Forms 10-K and 10-Q, and (4) Mallinckrodt's efforts to find alternative revenue streams for Acthar. It further contends that the Defendants also made incomplete disclosures regarding the Strunck Litigation. The Defendants move to dismiss both of the Plaintiff's counts under Federal Rules of Civil Procedure 9(b) and 12(b)(6) and pursuant to the PSLRA, initially filing their brief in October 2020. One month later, the Plaintiff opposed. Shortly thereafter, the Court stayed all proceedings in the action pending resolution of bankruptcy proceedings involving Mallinckrodt. Following the Court's reinstation of the litigation in the case in March 2022, the Defendants filed their reply. The Defendants' Motion rests on several grounds: that the Plaintiff has failed to state a claim under either Section 10(b) or Section 20(a). First, the Defendants contend that the Plaintiff has failed to state a claim under Section 10(b) of the Exchange Act. In moving to dismiss the Section 10(b) claim, they only contest scienter and whether Defendants made a materially false or misleading statement or omission. Judge Shipp opines that the Plaintiff has sufficiently pled scienter based on the Court's holistic review of the Amended Complaint. He says the Plaintiff does allege particularized facts. It also adequately alleges that part of the Acthar FY19 Guidance referred to present matters for which there is no safe harbor, such as Trudeau's statement of confidence in Acthar's net sales in May 2019 and further alleges specific facts which were known to or recklessly disregarded by the Defendants during this time. As further support of scienter, it alleges that Mallinckrodt's April 30, 2019 press release issued in response to the public disclosure of the Strunck Litigation implicitly admits that the Defendants were actively negotiating a settlement before the 2018 Form 10-K was filed -- yet the 2018 Form 10-K failed to disclose this information. The Defendants also contest whether the Plaintiff has alleged a materially false or misleading statement or omission. Upon review of the allegations and the authorities presented by the parties, Judge Shipp finds that the Defendants' representations on the statements and omissions, with the exclusion of the alleged Acthar clinical trial omissions, support a finding of materiality and falsity. Accordingly, he finds that the Amended Complaint sufficiently pleads actionable statements and omissions and that thus, the Plaintiff has stated a claim under Section 10(b). The Defendants finally contend that the Plaintiff has failed to state a "control person" claim under Section 20(a) of the Exchange Act. Having found that the Plaintiff sufficiently alleges a Section 10(b) claim, Judge Shipp turns to whether the Plaintiff has sufficiently alleged control and finds that it has done so. He says the Plaintiff adequately alleges a primary violation by each individual Defendant, sets forth the specific allegations of misstatements and omissions, and asserts a primary violation of Section 10(b) against Mallinckrodt. While the Defendants contend that the Plaintiff did not plead culpable participation, the overwhelming trend' in the Third Circuit is that culpable participation need not be pled to survive a motion to dismiss. Judge Shipp, accordingly, finds that the Plaintiff has stated a claim under Section 20(a). For the foregoing reasons, the Defendants' Motion to Dismiss is denied as to Count One and Count Two. An appropriate order will follow. A full-text copy of the Court's Dec. 16, 2022 Memorandum Opinion is available at https://tinyurl.com/4bt6bww4 from Leagle.com. MATTERPORT INC: Bid to Dismiss Lynch Class Suit Granted in Part --------------------------------------------------------------- In the case, SHAWN LYNCH, Plaintiff v. MATTERPORT, INC., et al., Defendants, Case No. C 22-03704 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California grants in part and denies in part the Defendants' motion to dismiss the Plaintiff's amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The lawsuit is a false and deceptive advertising putative class action. Defendants Matterport and its directors (together, "Matterport"), market 3D cameras that create 3D models of real-world places, which have many potential applications, including in connection with real estate sales. Supporting these cameras, it also offers services such as software for 3D image manipulation and cloud storage. Relevant in the case, Matterport developed the Matterport Service Partner (MSP) program as a way for individuals who purchased a camera to start their own businesses selling 3D scans they take using it. Lynch alleges that he saw Matterport's ads for the MSP program in March 2018, purchased his first camera on March 28, 2018, and became an MSP on April 25, 2018. According to him, Matterport's ads made several material misrepresentations and omissions regarding how the MSP program could help members build their own "lucrative, self-owned business." After throwing himself into learning to use Matterport's cameras and starting his own 3D scanning enterprise, Lynch allegedly had little to show for the time and money he spent. To add insult to alleged injury, Matterport purportedly launched another program, Matterport Capture Services, that competed against MSPs and took away one of Lynch's regular clients. On March 28, 2022, Lynch filed suit in the Superior Court of California against Matterport and seven members of its board of directors. On April 13, 2022, he amended his complaint, and on June 23, 2022, Matterport removed his action to this federal court. In his amended complaint, Lynch asserts claims on behalf of himself as well as three putative classes of individuals who became MSPs: (i) a multi-state class for claims under California's Seller-Assisted Marketing Plan (SAMP) Act and the cognate laws of 21 other jurisdictions (Count I); (ii) a national class for claims under California's SAMP Act (Count II), Section 17200, et seq., of the California Business and Professions Code (Count III), Section 17500, et seq., of the California Business and Professions Code (Count IV), and the implied covenant of good faith and fair dealing (Count V); and (iii) an injunctive relief class seeking declaratory and injunctive relief untethered to any claim (Count VI). Lynch seeks damages, recission of contract, injunctive relief, declaratory relief, and fees and costs. On June 24, 2020, John Stemmelin -- represented by the same lawyers who are representing Lynch -- filed a class action complaint against Matterport and seven members of its board of directors in the Northern District of California -- Stemmelin v. Matterport, Inc., No. C 20-04168 WHA. Stemmelin based his claims on identical allegations that the Defendants never provided required disclosures, did not comply with registration requirements, engaged in deceptive, unlawful, and unfair trade practices, did not honor any geographic limitations, and saturated ill-defined and non-lucrative markets. What's more, Stemmelin initially filed suit on behalf of putative "multi-state" and "national" classes of individuals who became MSPs and were allegedly injured due to Matterport's misrepresentations and omissions. He also raised very similar claims and sought very similar relief. In the Stemmelin action, this Court granted Matterport's motion to dismiss the putative "multi-state" class claim for lack of standing and the other putative class and individual claims for failure to state a claim. After it granted in part Stemmelin's motion for leave to amend and Stemmelin filed an amended complaint, it denied his motion for class certification and granted in part Matterport's motion for summary judgment. Only a few of Stemmelin's individual claims against Matterport remain, and they are set for trial next month. In the meantime, his lawyers appear to have sought a class action do-over elsewhere. A mere two weeks after Stemmelin's motion for class certification was denied in the Northern District of California, Lynch filed suit in California state court. His lawyers expressly acknowledge that they "seek certification of a narrower class than what was sought in the Stemmelin case" and used California law that this Court "found applied in the related Stemmelin case." Once Matterport removed Lynch's suit, the cases were related, and his lawyers landed before the undersigned once more, they sought to revitalize the Stemmelin action by filing a second class-certification motion with the Lynch action's narrower "national" class definition. But this Court struck that motion, observing it "appeared to constitute a test motion for Lynch." Now Matterport moves to dismiss all of Lynch's claims against the individual defendants, all of Lynch's claims on behalf of the putative "multi-state" and "injunctive" classes, as well as select claims against them. In his opposition to Matterport's motion, Lynch withdraws his claims asserted on behalf of the putative "multi-state" class (Count I) "because the Court has already found that California law applies in the related Stemmelin case." He also withdraws his claim asserted on behalf of the putative "injunctive" class (Count VI) because the Defendants cite authority that injunctive relief is not an independent cause of action, and this relief is available and sought in other counts." Thus, Judge Alsup considers whether Lynch's remaining challenged claims survive: his putative class claims under California's SAMP Act, Section 17200, and Section 17500 (Counts II, III, and IV); and his individual claims under Section 17200 and Section 17500 (Counts III and IV). Judge Alsup begins with the Plaintiff's claims against the Individual Defendants. Lynch brings all of his claims -- putative class and individual claims -- against seven members of Matterport's board of directors because each directly or indirectly controls Matterport. Stemmelin did the same. Because there are no allegations in Lynch's complaint that the individual defendants personally participated in or authorized any wrongdoings, all claims against them are dismissed. He allows Lynch to seek leave to amend the dismissed claims against the Individual Defendants to the extent stated. Judge Alsup turns to the Plaintiff's remaining challenged claims against Matterport. The Defendants argue, inter alia, that the Plaintiff's putative class claims under California's SAMP Act and Section 17500 a/k/a California's False Advertising Law (Counts II and IV) are time-barred. Judge Alsup agrees concluding that the Plaintiff's putative class claims under both statutory provisions are time-barred as pleaded. Again, Lynch may seek leave to amend to properly plead his discovery rule argument as set out. But if he chooses to do so, he must plead his best case. With his putative class claims under the SAMP Act and Section 17500 dismissed as time-barred, the Plaintiff has two remaining putative class claims under Section 17200 and the implied covenant of good faith and fair dealing. Despite the forgoing analysis, Judge Alsup cautions that serious questions remain concerning Lynch's ability to overcome deficiencies that plagued Stemmelin's putative class claims at the certification stage. Finally, Judge Alsup considers the Defendants' "grab bag" of lesser arguments raised to knock out different combinations of the Plaintiff's remaining putative class and individual claims. He finds all unavailing. This starts with the low-hanging fruit, those arguments already foreclosed by prior Stemmelin orders. Note Matterport is represented by the same counsel in the Stemmelin action as well. In sum, Judge Alsup grants in part and denies in part the Defendants' motion to dismiss. He grants the motion as to all claims against the Individual Defendants, as well as to the Plaintiff's SAMP Act and Section 17500 putative class claims (Counts II and IV) against Matterport. But he denies as moot the motion as to the "multi-state" and "injunctive" putative class claims (Counts I and VI). He denies the motion as to all other challenged putative class and individual claims against Matterport. He denies as moot the Defendants' request for judicial notice is not relied upon. The answer is due in 14 calendar days. Judge Alsup denies the Plaintiff's passing request for leave to amend. By Jan. 3, 2023, at noon, he says the Plaintiff may again seek leave to amend the dismissed claims by motion noticed on a normal 35-day calendar. Any motion should affirmatively demonstrate how the proposed complaint corrects the deficiencies identified in his Order, as well as all other deficiencies raised in the Defendants' motion but not addressed therein. Any motion should be accompanied by a redlined copy of any proposed amendment. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/yynsyzrr from Leagle.com. MID AMERICAN: Denial of Bid for Arbitration in Duling Suit Affirmed ------------------------------------------------------------------- In the case, AMANDA DULING, Appellee v. MID AMERICAN CREDIT UNION, Appellant, Case No. 124,971 (Kan. App.), the Court of Appeals of Kansas affirms the denial of the Appellant's motion to compel arbitration. Mid American Credit Union (MACU) appeals the denial of its motion to compel arbitration in a putative class action that Duling, a MACU member, filed against it. MACU argues that it acted according to the "change of term" provision in the parties' contract by unilaterally adding arbitration and class action waiver provisions to Duling's membership agreement and that Duling accepted the arbitration provision by continuing to use her account. Duling opened an account with MACU in 2018. The terms of the contract that she signed to open this account -- her membership agreement -- included an "Amendments and Termination" section. This section outlined MACU's authority to change the terms of the agreement. Her membership agreement included notice requirements for amendments. The membership agreement included no provision mentioning arbitration or class actions. In a cover letter dated Dec. 7, 2020, MACU notified its members that it would be adding a new arbitration provision to their membership agreements. It attached to its cover letter a copy of the arbitration and class action provision. And once effective, the provision would preclude class actions or the joinder of parties to such disputes. MACU's cover letter stated that the arbitration provisions would become effective on Dec. 28, 2020, that members would have until Jan. 6, 2021, to opt out, and that continued use by a member who did not opt out would be treated as consent. The cover letter also stated that instructions on how to opt out are included in the new provision provided with this letter. But those instructions on how to opt out stated a different opt-out date than the cover letter's Jan. 6, 2021 opt-out date. In October 2021, Duling filed a putative class action petition alleging MACU had breached its contract, violated the Kansas Consumer Protection Act, and unjustly enriched itself. Her petition alleged that MACU had improperly assessed or collected insufficient funds fees from her and other MACU members. In addition to filing an answer, MACU moved to stay all legal proceedings and to compel arbitration or, alternatively, to dismiss. MACU attached to its motion a copy of the December 7 cover letter and argued that Duling was contractually required to resolve her dispute through arbitration, since she had not opted out by Jan. 6, 2021. The district court denied MACU's motion to compel arbitration. Although it noted that public policy favored arbitration, it determined that the parties had not entered into a valid arbitration agreement. It also found that MACU's notice indicated the opt-out time had already lapsed. MACU timely appeals. The Court of Appeals notes that Duling also briefs several issues on appeal, as if she had appealed. She challenges the sufficiency of MACU's notice, alleging that MACU failed to prove that it mailed the notice or that she received it. The Court of Appeals opines that Duling's claims are not properly raised here because the district court did not make the factual findings necessary for us to review these arguments and she failed to object to any inadequacy in the district court's factual findings. Nor did Duling cross-appeal from any adverse ruling entered against her in the district court. The Court of Appeals thus declines to reach the issues Duling raises. MACU challenges the district court's findings that, per the terms of the parties' contract, it could not add an arbitration clause to the agreement, and that it failed to prove mutual consent. It contends that it could add the arbitration clause to the agreement under its change of terms provision. Alternatively, MACU claims that the cover letter was a valid offer to modify the terms of the parties' initial agreement "under basic notions of contract law." It adds that in either instance, the undisputed facts establish that Duling affirmatively consented to the change by continuing to use her account after failing to opt out. The Court of Appeals assumes, without deciding, that MACU properly sent notice to Duling of its new arbitration provision. It first examines MACU's argument that its membership agreement with Duling and others permitted it to unilaterally add the arbitration clause. It then examines MACU's alternative argument that its December 7 letter was an offer to modify the initial agreement which Duling accepted by her continued use of her account. The crucial question is whether Duling accepted the arbitration agreement by failing to opt out. Construing the opt-out provisions against MACU, the Court of Appeals finds that MACU failed to show Duling assented to its offer to add an arbitration clause to her membership agreement by her continued use of her account after receiving notice of the ambiguous opt-out date. It says Duling's failure to opt out and her continued use of her account thus did not justify MACU in inferring her assent. Nor was her act of such a character that a reasonable person in her position should have known it was calculated to lead MACU to believe that the offer had been accepted. When a "purported contract is so vague and indefinite that the intentions of the parties cannot be ascertained, it is unenforceable." Such is the case here; the Court of Appeals opines. MACU's new arbitration agreement is unenforceable because its opt-out provisions are too vague and indefinite for the Court of Appeals to find that Duling assented to the new arbitration agreement by continuing to use her account. For these reasons, the Court of Appeals affirms. A full-text copy of the Court's Dec. 16, 2022 Memorandum Opinion is available at https://tinyurl.com/3uejvpzb from Leagle.com. Benjamin A. Ramberg -- bramberg@fsmlawfirm.com -- and John G. Schultz -- jschultz@fsmlawfirm.com -- of Franke Schultz & Mullen, P.C., of Kansas City, Missouri, for the Appellant. Anthony A. Orlandi -- aorlandi@bsjfirm.com -- of Branstetter, Stranch & Jennings, PLLC, of Nashville, Tennessee, pro hac vice, and Richard S. Fisk -- rfisk@bkwflaw.com -- of Beam-Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for the Appellee. MIELE INC: Class Settlement in Alcazar Suit Wins Final Approval --------------------------------------------------------------- In the case, JUAN ALCAZAR, et al., Plaintiffs v. MIELE, INCORPORATED, Defendant, Case No. 20-cv-02890-VC (N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for the Northern District of California grants: a. the joint motion for final approval of class action settlement and conditional certification of settlement class; and b. an award of attorneys' fees to the Lead Class Counsel and a service award to the Named Plaintiffs. The matter came before the Court on the joint motion for final approval of class action settlement and conditional certification of settlement class of Named Plaintiffs Juan Alcazar and Pamela Williams and the Defendant. The Court has considered the briefing and the argument of counsel for the Parties since the initial submission of their preliminary approval papers and at the hearing on this matter. It has also considered the entirety of the record in the action in issuing the ruling. Judge Chhabria finds that the proposed resolution of the matter set forth in the Class Action Settlement Agreement and Release, taken as a whole, is fundamentally fair, adequate, and reasonable to all concerned. The following class is certified as a settlement class under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: The Nationwide Class: All individuals who (a) have a visual disability, as that term is defined under the Americans with Disabilities Act, 42 U.S.C. Section 12102 (ADA) and similar state and local disability laws, (b) have accessed the Website and/or Mobile Applications, and (c) have been denied equal access as a result of their disability. Judge Chhabria grants final approval to the Settlement Agreement. He grants an award of attorneys' fees to Lead Class Counsel, Wilshire Law Firm, PLC, and Class Counsel, Stein Saks, PLLC, in the amount of $53,000, payable as follows: $39,000 to Wilshire Law Firm and $14,000 to Stein Saks PLLC. This payment also encompasses any award of costs that the Class Counsel could seek. Ninety percent of this amount is payable upon entry of this order. The remaining ten percent will be withheld until the Lead Class Counsel files the Post-Distribution Accounting and submits along with it a proposed order releasing the balance of the award. Judge Chhabria grants a service award of $1,000 to each of the Named Plaintiffs -- Juan Alcazar and Pamela Williams. He finds that Mr. Alcazar and Ms. Williams upheld their duties to the class by participating actively in the litigation and being available to their counsel. Within 21 days after entry of the Order, the Lead Class Counsel will file a Post-Distribution Accounting, as described in the Northern District's Procedural Guidance for Class Action Settlements, to inform the Court about the administration of the Settlement. Pursuant to this Court's Standing Order for Civil Cases, the Post-Distribution Accounting will include any significant or recurring concerns communicated by Settlement Class Members to the Claims Administrator and the Lead Class Counsel since final approval, any other issues in settlement administration since final approval, how any concerns or issues were resolved, a description of the changes made to the Defendant's Website and Mobile Applications, and a description of the benefits the injunctive relief has conferred on the class. The Lead Class Counsel will cause the Claims Administrator to post the Post-Distribution Accounting on the Settlement Website. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/4j3p2y5c from Leagle.com. MUNICIPAL HEALTH: Court Affirms Summary Judgment in Hendrix Suit ---------------------------------------------------------------- In the lawsuit captioned RICKY HENDRIX, INDIVIDUALLY AND ON BEHALF OF ALL ARKANSANS SIMILARLY SITUATED, Appellants v. MUNICIPAL HEALTH BENEFIT FUND, Appellee, Case No. CV-22-138 (Ark.), the Supreme Court of Arkansas affirms the summary judgment entered in favor of the Fund. Appellant Hendrix, individually and on behalf of all Arkansans similarly situated, appeals the Pope County Circuit Court's order granting summary judgment in favor of Appellee Municipal Health Benefit Fund. Pursuant to Rule 1-2(a)(7) of the Arkansas Supreme Court Rules, the Supreme Court has jurisdiction over the present appeal because it is a subsequent appeal following an appeal previously decided by this Court (Mun. Health Benefit Fund v. Hendrix, 2020 Ark. 235, 602 S.W.3d 101 (Hendrix I)). Mr. Hendrix presents two arguments on appeal: (1) summary judgment in favor of the Fund was error and should be reversed; and (2) summary judgment in favor of Hendrix should have been granted and the case should be remanded for a damages determination. As set forth in Hendrix I, the Fund is a trust created by the Arkansas Municipal League under authority of the Interlocal Cooperation Act, Arkansas Code Annotated sections 25-20-101 through -108 (Repl. 2014 & Supp. 2021). The Fund provides benefits to employees of its municipal members. The Fund's Policy Booklet sets forth the benefits available and the Fund's rights and obligations with respect to payment of those benefits. Through Hendrix's employment with the Russellville Police Department, he obtained Fund health-benefits coverage. In May 2016, Hendrix's daughter was injured in a car accident, which required treatment from various medical providers. The Fund denied payment for portions of Hendrix's daughter's medical bills based on its interpretation of the uniform, customary, and reasonable charges (UCR) exclusion in the Policy Booklet. Mr. Hendrix filed a class-action complaint against the Fund challenging the enforcement of the UCR term due to the Policy Booklet's subjective and ambiguous standards for determining the UCR rate. He alleged that the Policy Booklet was a contract between the Fund and the class members and that the UCR term's ambiguity rendered it unenforceable. On June 26, 2019, the circuit court granted Hendrix's motion for certification of the following UCR class: All individuals and/or entities located and/or domiciled within the State of Arkansas who filed one or more claims with the Arkansas Municipal Health Benefit Fund on or between September 12, 2012 through the date of entry of this Class Certification Order and who had their claim(s) denied or reduced by the MHBF, in whole or in part, on the stated basis that the charges claimed exceed those that are reasonable and customary. In Hendrix I, the Fund appealed the circuit court's grant of class certification. The Supreme Court affirmed. It affirmed the certification of a second class based on a separate exclusionary term regarding automobile insurance coverage. However, after Hendrix I, this claim was dismissed pursuant to the circuit court's approval of a settlement between the Fund and the class. Therefore, the remaining class is the UCR class. On April 14, 2021, Hendrix filed a motion for summary judgment. He asserted the two remaining questions are as follows: (1) Is the UCR exclusion drafted and employed by the Fund subject to ambiguity or more than one reasonable interpretation, and thus subject to be construed, strictly or otherwise, in favor of the class as unenforceable under Arkansas law? And (2) If yes, what are the amount of damages owed by the Fund to the UCR class for common law breach of its health coverage contract with the UCR class? Hendrix argued that the UCR provisions contained in the Policy Booklet are contradictory because they are based on different standards. On May 24, 2021, the Fund responded to Hendrix's motion for summary judgment and also moved for summary judgment. In support of its motion for summary judgment, the Fund argued that it is indisputable that the Fund is a trust and that there is no cause of action in Hendrix's complaint that seeks to confront the Fund as a trust. Specifically, the Fund argues that Hendrix has made no breach-of-fiduciary-duty claim, no allegation that the Fund wrongfully calculated a claim, failed to pay the UCR amount for any out-of-network claim or engaged in any wrongful or bad faith conduct in the coordination of benefits. On Nov. 10, 2021, the circuit court issued a letter order granting the Fund's motion for summary judgment, denying Hendrix's motion for summary judgment, and dismissing Hendrix's complaint. It found that there were no genuine issues of material fact and that the health benefits offered by the Fund and purchased by Hendrix are not an insurance policy. The circuit court granted the Fund's motion for summary judgment and denied Hendrix's motion for summary judgment. On Nov. 30, 2021, the circuit court entered its final order. The order came to the same conclusions as the letter order but also concluded that there is sufficient consideration from the Fund in the contract between the parties. Therefore, Hendrix received valid consideration from the Fund such that mutuality of obligation was not essential. Hendrix appealed. On appeal, Hendrix argues that the circuit court erred in granting summary judgment in favor of the Fund. The crux of his claim is that while the Fund is a trust, it may enter into contracts, such as the Policy Booklet at issue. The Fund responds that while the circuit court correctly granted summary judgment in its favor, the circuit court did so for the wrong reasons. Associate Justice Karen R. Baker, writing for the Panel, notes that a trustee's duties to the beneficiaries are normally not contractual. However, as explained in the Restatement (Second) of Trusts, a trustee can contractually undertake duties other than those which he undertakes as trustee, and if he does so, he will be liable in an action at law for failure to perform such duties. That is not the case here. Pursuant to Katie Bodenhamer's affidavit and the Declaration of Trust, the trustees are expressly permitted to promulgate rules and regulations as may be proper or necessary for the sound and efficient administration of the Trust. Bodenhamer, general manager and benefits counsel for the Fund, stated that the rules and regulations promulgated by the trustees are set forth in the Policy Booklet. Here, the Declaration of Trust expressly permitted the trustees to promulgate the rules and regulations set forth in the Policy Booklet; thus, they did not undertake other duties as contemplated by the Restatement. Because Hendrix claimed breach of contract rather than breach of trust or breach of fiduciary duty against the trustees, the Supreme Court holds that he failed to state a proper claim. The Supreme Court has said that if a circuit court's grant of summary judgment was not in error, the Supreme Court can affirm the judgment as reaching the right result for the wrong reason. Therefore, the Supreme Court holds that while it did so for the wrong reasons, the circuit court correctly granted summary judgment in favor of the Fund. Having found that the circuit court properly granted summary judgment in favor of the Fund, the Supreme Court need not address Hendrix's second argument on appeal. Affirmed. A full-text copy of the Court's Opinion dated Dec. 8, 2022, is available at https://tinyurl.com/3eyj99jc from Leagle.com. Streett Law Firm, P.A. by: James A. Streett -- James@StreettLaw.com -- and Brian G. Brooks, Attorney at Law, PLLC by: Brian G. Brooks, for the Appellant. Harrington, Miller, Kieklak, Eichmann & Brown, P.A., by: R. Justin Eichmann -- dblake@arkansaslaw.com -- and Thomas N. Kieklak ; and Catlett Law Firm, PLLC by: H. Bradley Walker -- bwalker@catlaw.com -- for the Appellee. PERFORMIX LLC: Gonzalez Must File Class Cert Bid by May 17, 2023 ---------------------------------------------------------------- In the class action lawsuit captioned as VANESSA GONZALEZ, individually and on behalf of all others similarly situated, v. PERFORMIX LLC, Case No. 1:21-cv-01271-AWI-HBK (E.D. Cal.), the Parties ask the Court to enter an order granting their joint stipulation to extend class certification deadlines as follows: -- The Plaintiff shall have through and including May 17, 2023 to file her Class Certification Motion. -- The Defendant shall have through and including July 19, 2023 to file its Class Certification Opposition. -- The Plaintiff shall have through and including August 23, 2023 to file her Class Certification Reply, and the parties would be amenable to participation in a settlement conference with a magistrate judge in approximately 90 days, during which time the parties shall engage in additional discovery. The Plaintiff filed the Complaint in this action on August 20, 2021. The Court telephonically conducted a case management and scheduling conference on April 21, 2022. The Court entered a Case Management and Scheduling Order for this action under Fed. R. Civ. P. 16(b) on April 25, 2022. The parties have met and conferred and hereby stipulate to a revised schedule. PerforMix is a full-service independent pharmacy in Salem, New Hampshire providing a wide variety of services including conventional prescription. A copy of the Parties' motion dated Dec. 16, 2022 is available from PacerMonitor.com at https://bit.ly/3hw3psl at no extra charge.[CC] The Plaintiff is represented by: L. Timothy Fisher, Esq. Joel D. Smith, Esq. Sean L. Litteral, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940, Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com jsmith@bursor.com slitteral@bursor.com The Defendant is represented by: Rick L. Shackelford, Esq. GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700 Facsimile: 310-586-7800 E-mail: shackelfordr@gtlaw.com PRESTIGE CONSUMER: Solak Sues Over Mislabeled Pectin Lozenges ------------------------------------------------------------- JOHN SOLAK, individually and on behalf of all others similarly situated, Plaintiff v. PRESTIGE CONSUMER HEALTHCARE INC., Defendant, Case No. 3:22-cv-01357-BKS-ML (N.D.N.Y., Dec. 16, 2022) alleges that the Defendant manufactures, labels, markets and sells mislabeled "Wild Cherry" pectin lozenges shown with two cherries and a cherry leaf under the Luden's brand ("Product"). The Plaintiff alleges in the complaint that by describing the lozenges as "Wild Cherry" above two ripe picked cherries, consumers will expect its taste comes from cherry ingredients and lacks artificial cherry flavoring. However, the ingredient list reveals the absence of cherry ingredients, with the cherry taste coming from "flavor and malic acid." As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than $2.59 for 30 lozenges, excluding tax and sales, says the suit. PRESTIGE CONSUMER HEALTHCARE INC. manufactures and distributes over-the-counter health care and household cleaning products to retail stores. The Company distributes products for oral, eye and skin care cough, cold, allergy, and sinus, as well as household cleansers, sponges, scrubbers, and cleaning pads. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd. Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 Email: spencer@spencersheehan.com REALPAGE INC: White Suit Alleges Housing Lease Monopoly ------------------------------------------------------- BILLIE JO WHITE, individually and on behalf of all others similarly situated, Plaintiff v. REALPAGE, INC.; GREYSTAR REAL ESTATE PARTNERS, LLC; CUSHMAN & WAKEFIELD, INC.; LINCOLN PROPERTY COMPANY; PEABODY PROPERTIES, INC.; NEW ENGLAND REALTY ASSOCIATES LIMITED PARTNERSHIP; WINNCOMPANIES LLC AND WINNRESIDENTIAL MANAGER CORP.; UDR, INC.; SHP MANAGEMENT CORP.; THE RELATED COMPANIES, INC.; and SIMPSON PROPERTY GROUP, LLLP, Defendants, Case No. 1:22-cv-12134 (D. Mass., Dec. 16, 2022) alleges violation of the Sherman Act. The Plaintiff alleges in the complaint that the Defendants are engaged in the conspiracy to fix, raise, maintain, and stabilize rental housing prices in the Greater Boston Metro Area. As early as January 1, 2016 and continuing through the present, the Defendants and their co-conspirators entered and engaged in a contract, combination, or conspiracy to unreasonably restraint of trade in violation of the Sherman Act. The contract, combination or conspiracy consisted of an agreement among the Defendants and their co-conspirators to fix, raise, stabilize, or maintain at artificially high levels the rents they charge for residential units in the Greater Boston Area and involved the exchange of competitively sensitive information between and among Defendants, causing anticompetitive effects without sufficient procompetitive justifications, says the suit. The Plaintiff and members of the Class have been injured and will continue to be injured in the form of overcharges on rent. REALPAGE, INC. provides products and services to the multifamily real estate industries. The Company offers applicant screening, accounting, budgeting, property management, and compliance reporting solutions. RealPage also develops and delivers proprietary web-based applications that enhance client information management capabilities. [BN] The Plaintiff is represented by: David R. Scott, Esq. Amanda Lawrence, Esq. Patrick McGahan, Esq. Michael Srodoski, Esq. G. Dustin Foster, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 156 South Main Street P.O. Box 192 Colchester, CT 06145 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 Email: david.scott@scott-scott.com alawrence@scott-scott.com pmcgahan@scott-scott.com msrodoski@scott-scott.com gfoster@scott-scott.com - and - Thomas J. Undlin, Esq. Stacey Slaughter, Esq. Geoffrey H. Kozen, Esq. J. Austin Hurt, Esq. ROBINS KAPLAN LLP 800 LaSalle Avenue, Suite 2800 Minneapolis, MN 55402 Telephone: (612) 349-8500 Facsimile: (612) 339-4181 Email: tundlin@robinskaplan.com sslaughter@robinskaplan.com gkozen@robinskaplan.com ahurt@robinskaplan.com - and - Vincent Briganti, Esq. Christian P. Levis, Esq. Peter Demato, Esq. Radhika Gupta, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 Email: vbriganti@lowey.com clevis@lowey.com pdemato@lowey.com rgupta@lowey.com REALPAGE INC: Zhovmiruk Suit Alleges Housing Lease Monopoly ----------------------------------------------------------- YELIZAVETA ZHOVMIRUK, individually and on behalf of all others similarly situated, Plaintiff v. REALPAGE, INC.; THE IRVINE COMPANY, LLC; GREYSTAR REAL ESTATE PARTNERS, LLC; LINCOLN PROPERTY CO.; FPI MANAGEMENT, INC.; MID-AMERICA APARTMENT COMMUNITIES, INC.; AVENUE5 RESIDENTIAL, LLC; EQUITY RESIDENTIAL; ESSEX PROPERTY TRUST, INC.; THRIVE COMMUNITIES MANAGEMENT, LLC; SECURITY PROPERTIES INC.; HIGHMARK RESIDENTIAL, LLC, CORTLAND PARTNERS, LLC, and WINDSOR PROPERTY MANAGEMENT COMPANY, Defendants, Case No. 2:22-cv-01779 (W.D. Wash., Dec. 16, 2022) challenges a cartel among lessors of multifamily residential real estate leases of the Defendants to artificially inflate the prices of multifamily residential real estate in the United States above competitive levels. According to the complaint, beginning in approximately 2016, and potentially earlier, the Defendants replaced their independent pricing and supply decisions with collusion. The Defendants agreed to use a common third party, RealPage, which provides software and data analytics, and collected real-time pricing and supply levels, and then used that data to make unit-specific pricing and supply recommendations. RealPage also serves as the mechanism by which the Defendants collude and avoid competition, increasing lease prices to the Plaintiff and other members of the proposed Class, says the suit. RealPage facilitated an agreement among the Defendants not to compete on price, and allowing them to coordinate both pricing and supply through two mutually reinforcing mechanisms in furtherance of their agreed aim of suppressing price competition for multifamily residential real estate leases. REALPAGE, INC. provides products and services to the multifamily real estate industries. The Company offers applicant screening, accounting, budgeting, property management, and compliance reporting solutions. RealPage also develops and delivers proprietary web-based applications that enhance client information management capabilities. [BN] Steve W. Berman, Esq. Breanna Van Engelen, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0592 Email: steve@hbsslaw.com breannav@hbsslaw.com - and - Joseph J. DePalma, Esq. Steven J. Greenfogel, Esq. LITE DEPALMA GREENBERG & AFANDOR, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 Email: jdepalma@litedepalma.com sgreenfogel@litedepalma.com - and - George Farah, Esq. HANDLEY FARAH & ANDERSON PLLC 33 Irving Place New York, NY 10003 Telephone: (212) 477-8090 Facsimile: (844) 300-1952 Email: gfarah@hfajustice.com - and - William Anderson, Esq. 5353 Manhattan Circle, Suite 204 Boulder, CO 80303 Telephone: (303) 800-9109 Facsimile: (844) 300-1952 Email: wanderson@hfajustice.com ROUNDY'S ILLINOIS: Bids to Dismiss Cunningham & Fuhrmann Suits OK'd ------------------------------------------------------------------- In the case, KEVIN CUNNINGHAM, Plaintiff v. ROUNDY'S ILLINOIS, LLC, d/b/a MARIANO'S Defendant, Case No. 1:21-cv-05368 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants Defendant's motions to dismiss Cunningham and Fuhrmann suits. Plaintiff Cunningham brought suit against Mariano's, alleging that Mariano's did not pay overtime in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1, et seq. Plaintiff Juliana Fuhrmann brought suit against Mariano's based on the same claims. Cunningham and Fuhrmann originally brought their claims as part of a putative class action before Judge Bucklo. Judge Bucklo decertified the putative collective action and dismissed the opt-in plaintiffs, including Fuhrmann and Cunningham -- Haugen v. Roundy's Illinois, LLC, 552 F.Supp.3d 806, 811 (N.D. Ill. 2021). Subsequently, along with 21 other dismissed Plaintiffs, Cunningham and Fuhrmann collectively filed their claims before the Court. The Court granted Mariano's motion to sever the claims into separate actions on July 6, 2022, requiring each plaintiff to refile his or her claims individually. Fuhrmann filed her claims on Aug. 2, 2022. On Aug. 17, 2022, Cunningham filed his First Amended Complaint before the Court, asserting the same claims previously alleged in Haugen and in the initial complaint in the alleged joined action, but only on his own behalf. On Aug. 2, 2022, Fuhrmann filed the same claims on her own behalf. Thirteen other Plaintiffs also filed individual actions, which have been distributed amongst ten different judges in the Northern District of Illinois. Now, the Defendant moved to dismiss each action under the same procedural grounds, arguing that the dismissal of the opt-in Plaintiffs ripened to a dismissal with prejudice when the Plaintiffs missed the filing date set by Judge Bucklo. Judge Kendall explains that dismissal of a party and his or her claims from an FLSA collective action is analogous to dismissal of that party's complaint without prejudice. It is consistent with its broad discretion to manage FLSA collective actions that the district court may, either explicitly or impliedly, impose a conditional timeframe for plaintiffs to reinstate their claims individually. Moreover, following decertification, all opt-in plaintiffs should be on notice that they must take immediate steps in accordance with the court's orders to preserve their respective claims going forward. It follows from these principles and from Otis and its progeny that, once the Court has decertified a class and imposed a timeframe that simultaneously exercises its equitable powers to toll the FLSA statute of limitations and grants leave to re-file individually within that timeframe, the district court need not provide further instruction to dismissed plaintiffs. The court has given each plaintiff a renewed opportunity to pursue his or her claims on their merits. Failure to comply with clear instructions for how to do so may have dire, but not unforeseeable, consequences. Regrettably for the opt-in plaintiffs in the Haugen FLSA collective action, that is what happened here. When each Haugen opt-in plaintiff failed to refile an individual complaint by Oct. 4, 2021, Judge Kendall holds that the order dismissing their respective claims from that collective action converted by operation of law into a dismissal with prejudice as to each plaintiff. She says although the Plaintiffs' delay in filing was only four days, the Plaintiffs did not move to excuse this failure and only ask the Court to retroactively extend the timeline in response to this motion to dismiss, over a year past the missed deadline. Further, the Plaintiffs were well aware of the facts and claims required in filing their complaint as there were no significant changes from the claims asserted in the action they were dismissed from. Surely 60 days was an appropriate period of time to file such complaints. Ignoring deadlines is the surest way to lose a case. Judge Kendall finds no reason of excusable neglect to warrant retroactively extending the deadline. Because she finds that Judge Bucklo's order ripened into a dismissal of each opt-in plaintiff with prejudice on Oct. 5, 2021, Judge Kendall says there is no need to address the Defendant's alternative argument that the statute of limitations was wiped away that same day, such that the Plaintiffs' claims are now time-barred. For these reasons, the Defendant's motions to dismiss in Cunningham and in Fuhrmann are granted. The Plaintiffs' claims are dismissed with prejudice. A full-text copy of the Court's Dec. 16, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/bdfryx5t from Leagle.com. SAN DIEGO CONVENTION: Denial of Allen's Bid to Certify Class Upheld ------------------------------------------------------------------- In the case, SHARLENE ALLEN, Plaintiff and Appellant v. SAN DIEGO CONVENTION CENTER CORPORATION, INC., Defendant and Respondent, Case No. D080045 (Cal. App.), the Court of Appeals of California for the Fourth District, Division One, affirms the denial of motion to certify class. Allen is a former employee of the San Diego Convention Center Corporation (SDCCC). After SDCCC terminated Allen, she filed the present class action lawsuit against SDCCC alleging various violations of the Labor Code. In 2014, SDCCC hired Allen as a guest services representative on an hourly basis. She worked for SDCCC until 2019, when she was terminated. She filed the putative class action complaint initiating this lawsuit in February 2020, and her First Amended Complaint (FAC), the operative complaint, in April. In the FAC, Allen alleged that SDCCC violated various provisions of the Labor Code. The basis for her complaint was that SDCCC failed to pay workers for the time spent walking to and from their meal and rest breaks, and it required workers to work during breaks if they received a call on hand-held radios that they were required to carry at all times. She also alleged SDCCC did not advise workers of their right to take a second meal period when they worked more than 10 hours in one shift, and failed to reimburse workers for the cost of non-slip shoes that were necessary to perform their jobs. Allen asserted eight Labor Code violation claims against SDCCC based on these general allegations. She alleged the corporation (1) failed to provide meal periods (Sections 226.7, 512, 1198, first cause of action); (2) failed to provide rest periods (Sections 226.7, 1198, second cause of action); (3) failed to pay hourly wages for time worked during meal and rest periods (Sections 223, 510, 1194, 1194.2, 1197, 1197.1, 1198, third cause of action); (4) failed to pay vacation wages (Section 227.3, fourth cause of action); (5) failed to pay sick time (Section 246, et seq., fifth cause of action); (6) failed to indemnify Allen and others for the cost of non-slip shoes, which she alleged were necessary to her work (Section 2802, sixth cause of action); (7) failed to provide accurate written wage statements (Section 226, seventh cause of action); and (8) failed to timely pay all final wages (Sections 201, 202, 203, eighth cause of action). Allen also alleged that her first, second, third, fourth, fifth, and sixth causes of action constituted violations of the UCL (ninth cause of action), and sought civil penalties under PAGA as a representative of other current and former SDCCC employees for the alleged Labor Code violations (tenth cause of action). SDCCC demurred, arguing that it was exempt from liability for the alleged Labor Code violations as a public entity and wholly-owned subsidiary and instrumentality of the City of San Diego. The demurrer also argued that the inaccurate wage statement, UCL, and PAGA causes of action failed because they were derivative of the other Labor Code violation claims. Allen opposed the demurrer, arguing, among other things, that SDCCC had not shown it was an "other municipal corporation" under section 220, subdivision (b), as established by case law and, thus, was not exempt from liability. The trial court largely sustained SDCCC's demurrer to the complaint on the grounds that the corporation was exempt from liability as a government entity. It, however, left intact one claim for untimely payment of final wages under Labor Code sections 201, 202, and 203,1 and derivative claims under the Unfair Competition Law (UCL, Bus. & Prof. Code, Section 17200, et seq.) and the Private Attorneys General Act (PAGA, Section 2698, et seq.). Allen then moved for class certification for her surviving causes of action. Allen brought her motion for class certification, seeking to certify a class of "all non-exempt employees who were required to carry a radio during breaks who worked for San Diego Convention Corporation in California between Feb. 11, 2016 and the present," and a class of "all non-exempt employees who worked for San Diego Convention Corporation in California between February 11, 2016 and the present who were not timely paid their final wages." The trial court denied the motion based on Allen's concession that her claim for untimely final payment was not viable because it was derivative of the other claims dismissed at the demurrer stage. Allen now appeals from the denial of the motion for class certification, which she asserts was the death knell of her class claims and thus, the lawsuit. She argues the trial court's ruling on the demurrer was incorrect because SDCCC did not establish as a matter of law that it was exempt from liability. In response, SDCCC asserts that Allen's appeal should be dismissed as taken from a non-appealable order. Alternatively, it contends the trial court's order sustaining its demurrer was correct, and the subsequent denial of class certification should be affirmed. In its brief, SDCCC asks the Court of Appeals to dismiss Allen's appeal as taken from a non-appealable order. It argues that because Allen's PAGA and individual claims remain, the denial of class certification did not constitute the "death knell" of the case and the order is not appealable. Allen responds that the remaining claims are not viable because they are derivative of the claims the court dismissed at the demurrer stage. The Court of Appeals agrees with Allen that the denial of class certification effectively ended her case, and the order is therefore appealable. As Allen asserts, the class certification order left the case without either class or PAGA claims and constituted the death knell of the litigation. Allen's primary contention on appeal is that the court erred by sustaining the demurrer based on the court's finding that SDCCC was a public entity. She argues it improperly relied on federal authority to reach this conclusion. SDCCC responds that it established as a matter of law its status as a public entity, exempt from the Labor Code provisions Allen alleges it violated. Thus, it argues, the trial court properly sustained its demurrer. The Court of Appeals agrees that the class certification was properly denied by the trial court. The SDCCC was formed under the authority of state law, operates solely for the benefit of the municipality, and is defined by the City of San Diego's municipal code as part of the city. While the non-profit corporation may have some independence in its management of the facility, it is an agent of the City of San Diego, which appoints its leadership and must publicly account for its operations. Because of these facts, SDCCC is not an independent corporation. This supports the trial court's determination that SDCCC is a public entity. Accordingly, it is not subject to the Labor Code provisions at issue, which contain no express inclusion of public entities. The Court of Appeals affirms the order. The Respondent is awarded the costs of appeal. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/4pwaksj3 from Leagle.com. Setareh Law Group, Shaun Setareh -- shaun@setarehlaw.com -- Thomas Segal, for the Plaintiff and Appellant. McDougal, Love, Boehmer, Foley, Lyon & Mitchell, Steven E. Boehmer -- sboehmer@mcdougallove.com -- and Matthew A. Thurmer -- mthurmer@mcdougallove.com -- for the Defendant and Respondent. SANTA CLARA, CA: Class Settlement in Camarlinghi Gets Final Nod ---------------------------------------------------------------- In the class action lawsuit captioned as DYLAN CAMARLINGHI, v. SANTA CLARA COUNTY, Case No. 5:21-cv-03020-EJD (N.D. Cal.), the Hon. Judge Edward J. Davila entered an order granting motion for final approval of proposed class action settlement, attorneys' fees and expenses, and service award: -- The motion relating to the allocation of the $395,000.00 for attorneys' fees, costs, and the incentive award is granted. -- Class Counsel is awarded $2,530.52 in litigation costs. -- The Plaintiff Dylan Camarlinghi is granted an incentive award of $20,000.00. -- Following payment of a maximum of $50,000 for settlement administration costs. -- Class Counsel is awarded the remainder as attorneys' fees. The parties shall file a post-distribution accounting in accordance with this District's Procedural Guidance for Class Action Settlements no later than October 2, 2023. Although the Court initially expressed some concern regarding the reasonableness of the $20,000 incentive award, the Court finds that this amount is not so unreasonable as to destroy the adequacy of Mr. Camarlinghi's class representation. Mr. Camarlinghi came forward to represent the interests of 244 others, at significant and likely detriment to himself. Specifically, the Court recognizes that Mr. Camarlinghi had initially declined to act as class representative despite the inevitable attention that would be -- and, in fact, was -- drawn to the only arrest on his otherwise spotless criminal record, an arrest for which he was never criminally charged. However, upon Class Counsel's renewed request, he assumed the role after he learned that Class Counsel could not locate another candidate for class representative and the case likely could not be filed without his involvement. The Court previously granted a motion for preliminary approval of the Class Action Settlement between Plaintiff Dylan Camarlinghi and Defendant Santa Clara County on September 6, 2022. On November 28, 2022, the Plaintiff filed his unopposed Motion for Final Approval of Proposed Class Action Settlement and indicated that no class member had objected to or opted out of the settlement. The Plaintiff filed the putative class action complaint on April 26, 2021, against Defendant Santa Clara County, alleging that Defendant violated his constitutional rights -- and those of others similarly situated -- by failing to release him and others within a reasonable period of time after the district attorney declined to prosecute them. The parties reached an early settlement prior to class certification after multiple settlement conferences with Magistrate Judge Laurel Beeler. The Class Settlement Agreement and General Release defines the class as two Subclasses, as follows: "Settlement Subclass I" means all persons (i) detained at the Jail from 12 to up to 24 hours after the Santa Clara DA declined prosecution; and (ii) for whom no holds, warrants, or other reasons justified their continued detention at the time the DA declined prosecution; and (iii) where such circumstances occurred between April 26, 2018 and April 26, 2021;" and "Settlement Subclass II" means all persons (i) detained at the Jail for 24 hours or longer after the Santa Clara DA declined prosecution; and (ii) for whom no holds, warrants, or other reasons justified their continued detention at the time the DA declined prosecution; and (iii) where such circumstances occurred between April 26, 2018 and April 26, 2021. In its preliminary approval order, the Court conditionally certified the Settlement Class and appointed Akeeb Dami Animashaun, Janet Marie Herold, Lucy Brierly Bansal, and Rachel 20 Lederman as Class Counsel. The Court also appointed American Legal Claim Services, LLC as the Settlement Administrator. Under the terms of the Settlement Agreement, Defendant will pay $2,375,000.00 into a non-reversionary settlement fund without admitting liability. This amount includes the cost of class notice and settlement administration, the class representative's incentive award, attorneys' fees and costs, and valid claims from Settlement Class members. Santa Clara is the most populous county in the San Francisco Bay Area and in Northern California. A copy of the Court's order dated Dec. 16, 2022 is available from PacerMonitor.com at https://bit.ly/3W78Htm at no extra charge.[CC] SCHUETTE INC: Alcione Suit Transferred to E.D. Wisconsin -------------------------------------------------------- The case styled as Armando Alcione, on behalf of himself and all others similarly situated v. SCHUETTE, INC., Case No. 3:22-cv-00393 was transferred from the U.S. District Court for the Western District of Wisconsin, to the U.S. District Court for the Eastern District of Wisconsin on Dec. 15, 2022. The District Court Clerk assigned Case No. 2:22-cv-01514 to the proceeding. The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Schuette, Inc. -- https://www.schuettemetals.com/ -- provides metal fabrication services. The Company offers architectural and custom fabrication, welding, metal machining, and assembling services.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com SENIOR PLANNING: New Jersey Court Grants Bid to Dismiss Cotton Suit ------------------------------------------------------------------- In the lawsuit styled THE ESTATE OF LESTER COTTON, et al., Plaintiffs v. SENIOR PLANNING SERVICES, LLC, et al., Defendants, Case No. 19-8921 (ZNQ) (TJB) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for the District of New Jersey issued an opinion: -- granting Defendant Senior Planning Services, LLC's Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and -- denied as moot Defendant Price & Price, LLC's Motion to Dismiss under Rule 12(b)(6). The matter has a protracted procedural history. On Nov. 30, 2020, the Court issued an Opinion that (1) granted in part Defendant Senior Planning Services, LLC's Motion to Dismiss, (2) denied in part Defendant Price & Price, LLC's Motion to Dismiss, and (3) granted the Plaintiffs leave to file an amended complaint ("Omnibus Opinion"). The matter arises out of the Defendants allegedly defrauding the Plaintiffs and other Members of the Classes out of potential Medicaid benefits. Plaintiff Lester Cotton, who is now deceased, was a resident of New Jersey. Jennifer Cotton acts as Power of Attorney for and as executrix of the Estate of Lester Cotton ("Cotton Plaintiffs"). Plaintiff Raymond J. Wojna, Sr., who is now deceased, was a resident of Connecticut, and Plaintiff Helen Wojna, who is also deceased, was a resident of Connecticut. Raymond J. Wojna, Jr. and David Wojna, act as Power of Attorneys for and as executors of the Estate of Ramond J. Wojna, Sr., and Helen Wojna ("collectively referred to as Wojna Plaintiffs"). Defendant Senior Planning Services, LLC ("SPS") is a limited liability company incorporated under the state laws of New Jersey, with its principal place of business in Lakewood, New Jersey. Defendant Price & Price, LLC ("Price") is a limited liability company incorporated under the state laws of New Jersey, with its principal place of business in Haddonfield, New Jersey. In mid-April, a representative from Genesis contacted Ms. Jennifer Cotton, Mr. Cotton's daughter and power of attorney, to come in for a meeting concerning Mr. Cotton's Medicaid eligibility. On April 26, 2018, Ms. Cotton attended an information meeting with an SPS executive and was told that SPS would help Mr. Cotton obtain Medicaid. The Plaintiffs allege that Ms. Cotton was specifically told that she "did not have to hire an attorney," because, just as SPS says on its website, SPS would take care of "everything." Therefore, Ms. Cotton allegedly understood that "everything" meant any and all financial, legal, and administrative matters associated with applying for Medicaid benefits. Although Ms. Cotton was uncomfortable with the arrangement, she agreed to hire SPS and executed the Fee Agreement. Specifically, the agreement between Ms. Cotton and SPS provides that, SPS "does not provide any legal service or advice," but will guide, assist, oversee, file the application, and to perform related follow-up activities associated with the Medicaid application process. On May 23, 2018, Ms. Cotton received a copy of Price's Spend-Down Analysis and Recommendations Report. As previously argued, the Plaintiffs allege that a review of the spend-down analysis "indicates that little to no legal work was performed on [Mr. Cotton's] case, or his Medicaid application" and that the analysis lacks any "client-specific information or recommendations." The Spend-Down Report instructs Ms. Cotton to act promptly based on the provided recommendations and communicate her decision to SPS. Moreover, Price requested an additional fee of $6,500 to develop and assist with the implementation of a Long-Term Care Strategy. Bothered by SPS's involvement, Ms. Cotton obtained a lawyer and sought to terminate her engagement with SPS. On March 25, 2019, the Plaintiffs filed their initial Complaint. On July 29, 2019, the Plaintiffs filed an Amended Complaint ("First Amended Complaint"), which, inter alia, added the Wojnas as Plaintiffs. Thereafter, Defendant SPS and Defendant Price filed Motions to Dismiss. On Oct. 29, 2019, the Plaintiffs filed their Second Amended Complaint ("SAC"). They assert claims on behalf of two putative classes. Class A, represented by the Cotton Plaintiffs, and Class B, represented by the Wojna Plaintiffs. In the SAC, the Plaintiffs assert violations of the New Jersey Consumer Fraud Act ("NJCFA") and breach of fiduciary duty claims against SPS, only (Counts I, III). The remainder of the Plaintiffs' claims -- unjust enrichment, breach of the implied covenant of good faith and fair dealing, declaratory judgment, and rescission -- are asserted against both SPS and Price (Counts II, IV-VI). On Nov. 12, 2019, the Defendants filed separate Motions to Dismiss, which were resolved in the Court's Nov. 30, 2020 Omnibus Opinion. On Jan. 14, 2021, the Plaintiffs filed the operative Third Amended Complaint ("TAC"). Notably, the Plaintiffs, on behalf of Class A only, re-assert a nearly identical NJCFA claim (Count 1). Further, the Plaintiffs assert two new causes of actions not contained in the SAC: a violation of the Connecticut Unfair Trade Practices Act claim (Count 2), and a breach of contract claim (Count 3). In response to Defendant SPS and Defendant Price's prior Motions to Dismiss, on Nov. 30, 2020, the Court issued an Omnibus Opinion. The Court granted in part SPS's Motion to Dismiss with respect to the Plaintiffs' New Jersey Consumer Fraud Act ("NJCFA")(Count1) claim and permitted the Plaintiffs to file an amended complaint to re-plead as to the Cotton Plaintiffs and putative Class A members. Due to the Plaintiffs' unsuccessfully pled NJCFA claims, the Court declined to address the merits of the Plaintiffs' state law claims for unjust enrichment, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing. Here again, Judge Quraishi notes, there is no other claim in the TAC that provides original jurisdiction, and thus subject matter jurisdiction again rests entirely on the Plaintiffs' NJCFA claim against SPS on behalf of Class A. In the Omnibus Opinion, the Court explained that if the Plaintiffs were to survive dismissal, in any amended filing they would have to satisfy the pleading requirement for unlawful conduct with specific factual allegations demonstrating that SPS did, in fact, perform actions which could be construed as legal work, or specific representations that SPS was qualified to perform legal work, or that the services attendant to the spend-down process could be provided by SPS, or non-lawyers. Although the Plaintiffs have now alleged an oral representation by SPS to Ms. Cotton, the representation fails to provide specificity concerning what legal work SPS said it would perform or actually did perform on Ms. Cotton's behalf, Judge Quraishi opines. In order to satisfy Rule 9(b)'s exacting standards for pleading fraud, a specific factual basis for the Plaintiffs' assertion that SPS performed legal work related to Mr. Cotton's Medicaid eligibility is necessary. The Court finds that the Plaintiffs have failed again to provide specific facts suggesting that SPS either performed legal work on behalf of the Cotton Plaintiffs, or promised that it would provide legal services. Therefore, the Court finds that the Third Amended Complaint fails to plead a requisite element of an NJCFA claim, and that claim must be dismissed. Because the Court's subject matter jurisdiction depends entirely upon the jurisdiction conveyed by CAFA for the NJCFA claim, and the Court declines to exercise supplemental jurisdiction over the remaining state claim claims (Counts II-VII), the Third Amended Complaint will be dismissed in its entirety. The dismissal will be without prejudice and the Plaintiffs will be afforded 30 days to remedy the defects identified here and in the Omnibus Opinion. To be clear, Judge Quraishi says no leave is granted to add further claims. Moreover, given the Plaintiffs' now multiple unsuccessful attempts to plead their claims, the Court cautions that should they seek to replead them in the Court, the next dismissal, should one be necessary, may be with prejudice. A full-text copy of the Court's Opinion dated Dec. 8, 2022, is available at https://tinyurl.com/5329r9um from Leagle.com. SOUTHWEST AIRLINES: Bombin's Bid to Strike Certain Info Denied -------------------------------------------------------------- In the case, ADRIAN BOMBIN, et al., Plaintiffs v. SOUTHWEST AIRLINES CO., Defendant, Civil No. 5:20-cv-01883-JMG (E.D. Pa.), Judge John M. Gallagher of the U.S. District Court for the Eastern District of Pennsylvania denies the Plaintiffs' motion to strike certain information produced by Southwest in support of its Motion in Opposition of Plaintiffs' Motion for Class Certification. Plaintiffs Adrian Bombin and Samantha Rood purchased airline tickets from Southwest. They allege (individually and on behalf of a putative class) Southwest breached its contract with them by providing them with a travel credit -- and failing to give them the option of a monetary refund -- upon modifying its planned flight schedules during the COVID-19 pandemic. The Parties currently dispute whether class certification is appropriate -- and if so, the proper parameters of the class. The Plaintiffs allege Southwest's failure to provide the option of a monetary refund upon flight schedule modifications amounted to a breach of contract. On the issue of class certification, the Court ordered discovery due by March 29, 2022. On April 22, 2022, the Plaintiffs moved for class certification. Southwest then filed a Response in Opposition of Plaintiffs' Motion for Class Certification on June 13, 2022. The Plaintiffs then moved to strike certain information produced by Southwest and relied upon in its Response in Opposition of Class Certification. Upon the filing of the Plaintiffs' Motion to Strike, and upon consideration of the Parties' Joint Motion for Briefing Schedule, the Court held in abeyance class certification briefing deadlines. It has not yet set a trial date in the matter. Now, the Plaintiffs move to strike Southwest's filings related to: (1) the Behrens Declaration and attached exhibits addressing the Plaintiffs' and other customers' alleged assent to Southwest's terms and conditions ("T&Cs") containing a class action waiver clause ("the Behrens Declaration"); (2) call transcripts; and (3) passenger data/list. They contend these materials should be stricken because Southwest failed to properly disclose the subject matter contained in those filings and is unable to show that such failure was harmless or substantially justified. First, the Parties dispute whether Southwest timely and sufficiently identified Ms. Elizabeth Behrens and her knowledge of customers', including the named Plaintiffs, interactions with Southwest's T&Cs when purchasing flights online and through Southwest's mobile application. They also dispute whether Southwest violated the Federal Rules of Civil Procedure and the Court's Order by not producing the Call Transcripts within discovery deadlines. Judge Gallagher does not find striking Southwest's use of the Behrens Declaration, Call Transcripts, and Passenger Data is warranted given the ability of the Parties to cure any prejudice to the Plaintiffs, the minimal disruption to the matter's pre-trial and trial proceedings, and the importance of the evidence to Southwest. Accordingly, he denies the Plaintiffs' Motion to Strike concerning these matters. The Court intends to conference with the Parties to discuss the scope -- and related deadlines -- of any limited discovery necessary to cure the alleged deficiencies raised by the Plaintiffs. An appropriate Order follows. A full-text copy of the Court's Dec. 16, 2022 Memorandum Opinion is available at https://tinyurl.com/28x6sexh from Leagle.com. STATE FARM: Fails to Pay Full Vehicle Insurance, Sullivan Says -------------------------------------------------------------- RICHARD SULLIVAN, individually and on behalf of all others similarly situated, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant, Case No. 4:22-cv-00833-FJG (W.D. Mo., Dec. 16, 2022) is a class action claim arising from the Defendant's breach of contract, in that it fails to honor the terms of its policy by refusing to pay the applicable sales tax and fees when paying out a total loss on a vehicle. The Plaintiff alleges in the complaint that the Defendant refuses to provide the full replacement cost when it offered to pay the actual cash value of Plaintiff's car. The Defendant refuses to pay the vehicle title transfer fee, the registration fees, and sales tax applicable to replacing the car. These fees and the sales tax are part of the replacement cost and by refusing to pay them the Defendant is breaching its obligations under its policy with the Plaintiff, says the suit. STATE FARM FIRE AND CASUALTY COMPANY operates as an insurance company. The Company offers automobile, property, casualty, health, disability, and life insurance services. [BN] The Plaintiff is represented by: Kenneth B. McClain, Esq. Jonathan M. Soper, Esq. Chelsea Mcclain Pierce, Esq. HUMPHREY FARRINGTON & McCLAIN, P.C. 221 W. Lexington, Suite 400 Independence, MO 64050 Telephone: (816) 836-5050 Facsimile: (816) 836-8966 Email: kbm@hfmlegal.com jms@hfmlegal.com cmp@hfmlegal.com STERLING CREDIT: Taylor-Brokenbough Files FDCPA Suit in D. Delaware ------------------------------------------------------------------- A class action lawsuit has been filed against Sterling Credit Corporation. The case is styled as Christina Taylor-Brokenbough, individually and on behalf of all others similarly situated v. Sterling Credit Corporation, Case No. 1:22-cv-01601-UNA (D. Del., Dec. 16, 2022). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Sterling Credit Corp. -- https://www.sterlingcreditcorporation.com/ -- is committed to providing capital and collection services to our customers.[BN] The Plaintiff is represented by: Antranig N. Garibian, Esq. GARIBIAN LAW OFFICES, P.C. 1523 Brandywine Plaza East 1523 Concord Pike, Suite 400 Wilmington, DE 19803 Phone: (215) 326-9179 Email: ag@garibianlaw.com STORM SMART: Barbosa Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------ Angel Barbosa and Anthony Fontana, on behalf of themselves and those similarly situated v. STORM SMART HOLDINGS LLC, THE SMART COMPANIES, LLC, and STORM SMART BUILDING SYSTEMS LLC, Case No. 2:22-cv-00800-JLB-NPM (M.D. Fla., Dec. 15, 2022), is brought under the Fair Labor Standards Act of 1938 for the Defendants failure to pay overtime wages. During the relevant time frame, the Plaintiffs and the other installer helpers worked approximately eleven hours per day, six days per week. The Plaintiffs and the other installer helpers regularly worked more than 40 hours per week. Before May 2021, the Defendants did not pay overtime wages to the Plaintiffs or the other installer helpers. After May 2021, the Defendants paid overtime wages to Plaintiffs and the other installer helpers. This common policy or practice resulting in overtime violations uniformly applied to the Plaintiffs and the similarly situated installer helpers, says the complaint. The Plaintiffs were employed by the Defendants as shutter installer helpers. STORM SMART sells, manufactures, and installs hurricane protection products, including shutters.[BN] The Plaintiffs are represented by: Jason L. Gunter, Esq. Conor P. Foley, Esq. GUNTERFIRM 1514 Broadway, Suite 101 Fort Myers, FL 33901 Phone: 239.334.7017 Email: Jason@GunterFirm.com Conor@GunterFirm.com STRAND BOOK STORE: Hanyzkiewicz Files ADA Suit in E.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Strand Book Store, Inc. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. Strand Book Store, Inc., Case No. 1:22-cv-07709 (E.D.N.Y., Dec. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Strand Book Store, Inc. -- https://www.strandbooks.com/ -- is a bookstore and landmark shop in New York City specializing in new, used & rare books from philosophy to finance, plus bookish gifts.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com STRATEGIC DELIVERY: Bernard Sues Over Unpaid Compensation --------------------------------------------------------- Ariel Bernard, Dean J. Schemanski, Thom M. Gray, and Jalonne Rice individually and on behalf of all others similarly situated v. Strategic Delivery Solutions, LLC, Case No. 1:22-cv-07396 (D.N.J., Dec. 19, 2022), is brought against the Defendant who denied the Plaintiffs of overtime and minimum wage and to seek all available relief under the New Jersey Wage Payment Law, and the New Jersey Wage and Hour Law. The Defendant has misclassified the Plaintiffs and all other courtier drivers in New Jersey as independent contractors, and as a result, the Plaintiffs and the class that they seek to represent have suffered improper deductions from their pay, have been denied overtime pay, and have not been paid the full statutory minimum wage for all hours worked. SDS has also relied on the independent contractor label to avoid paying overtime compensation of one-and-one-half times drivers’ regular rate of pay for hours worked greater than 40 hours in a work week and have also failed to reimburse the work-related expenses of Plaintiff and similarly situated delivery drivers. Defendant never paid any Drivers an overtime premium for hours worked above 40 hours in a given week. Defendant also regularly made improper deductions from Plaintiffs’ pay These significant deductions from their paychecks further reduced Plaintiffs’ payrate below the applicable statutory minimum, says the complaint. The Plaintiffs worked performing courier services for SDS in New Jersey. The Defendant operates a same-day delivery service of medical prescriptions and other pharmaceutical products.[BN] The Plaintiff is represented by: Zachary L. Rubin, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (617) 994-5800 Email: zrubin@llrlaw.com - and - Harold L. Lichten, Esq. Matthew W. Thomson, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (617) 994-5800 Email: hlichten@llrlaw.com mthomson@llrlaw.com SURF STYLE: Has Made Unsolicited Calls, Garcia Suit Alleges ----------------------------------------------------------- JOHN GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. SURF STYLE RETAIL MANAGEMENT INC., doing business as SURFSTYLE, Defendant, Case No. CACE-22-018406 (Fla. Cir., Broward Cty., Dec. 16, 2022) seeks to stop the Defendants' practice of making unsolicited calls. The complaint is an action for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the alleged illegal actions of the Defendants in negligently contacting the Plaintiff on the Plaintiff's cellular telephone, without any express consent, in violation of the Florida Telephone Solicitation Act ("FTSA"). SURF STYLE RETAIL MANAGEMENT INC. operates as a clothing store. The Company specializes in retail sales of clothing, furnishings, and accessories for men, women, and children. [BN] The Plaintiff is represented by: Joshua A. Glickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave. Dunedin, FL 34698 Telephone: (202) 709-5744 Facsimile: (866) 893-0416 Email: josh@sjlawcollective.com shawn@sjlawcollective.com SYMRISE INC: Cotton Suit Removed to S.D. Georgia ------------------------------------------------ The case captioned as Richard Cotton, Lenora Cotton, Shannon Spell, and Cherokee Spell, individually and on behalf of all others similarly situated v. SYMRISE, INC., VINCENT NOBLE, and JOHN DOE 1-3, Case No. CV20220307 was removed from the State Court of Glynn County, Georgia, to the United States District Court for the Southern District of Georgia on Dec. 19, 2022, and assigned Case No. 2:22-cv-00145-LGW-BWC. The Plaintiffs brought a single claim of negligence against Vincent Noble under the Georgia law.[BN] The Defendants are represented by: David E. Kawala, Esq. Jonathan W. Powell, Esq. SWANSON, MARTIN & BELL, LLP 330 North Wabash Avenue, Suite 3300 Chicago, Illinois 60611 Phone: (312) 321-9100 Fax: (312) 321-9100 Email: dkawala@smbtrials.com jpowell@smbtrials.com SYNGENTA CROP: Milam Files Suit in S.D. Indiana ----------------------------------------------- A class action lawsuit has been filed against Syngenta Crop Protection, et al. The case is styled as Jefferson Milam, on behalf of all others similarly situated v. Syngenta Crop Protection, Syngenta Corporation, Syngenta Crop Protection LLC, Corteva, Inc., Nutrien AG Solutions Inc., Case No. 1:22-cv-02410-RLY-MG (S.D.N.Y., Dec. 15, 2022). The nature of suit is stated as Anti-Trust. Syngenta AG -- https://www.syngenta.com/en -- is a provider of agricultural science and technology, in particular seeds and pesticides with its management headquarters in Basel, Switzerland.[BN] The Plaintiff is represented by: John P. Young, Esq. YOUNG & YOUNG 128 North Delaware Street, Third Floor Indianapolis, IN 46204 Phone: (317) 639-5161 Fax: (317) 639-4978 Email: john@youngandyoungin.com TAILWINDS INC: Fagnani Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Tailwinds, Inc. The case is styled as Mykayla Fagnani, on behalf of herself and all other persons similarly situated v. Tailwinds, Inc., Case No. 1:22-cv-10651 (S.D.N.Y., Dec. 16, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tailwinds -- https://www.tailwinds.com/ -- is a trusted source for pilot gifts.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: michael@gottlieb.legal TD BANK: Bid for Class Cert. Due June 2, 2023 in Nelipa Suit ------------------------------------------------------------ In the class action lawsuit captioned as Nelipa v. TD Bank, N.A., Case No. 1:21-cv-01092 (E.D.N.Y.), the Hon. Magistrate Judge Ramon E. Reyes entered an order setting deadlines/hearings: -- Motion for Class Certification is due on June 2, 2023. The nature of suit states Banks and Banking involving Breach of Contract. TD Bank is an American national bank and the United States subsidiary of the multinational TD Bank Group.[CC] TD BANK: District of New Jersey Narrows Claims in Burns Class Suit ------------------------------------------------------------------ Judge Karen M. Williams of the U.S. District Court for the District of New Jersey, Camden Vicinage, grants in part and denies in part the Defendant's motion to dismiss the lawsuit styled KYLE BURNS, et al., Plaintiffs v. TD BANK, N.A., Defendant, Case No. 1:21-CV-18194-KMW-AMD (D.N.J.). The matter comes before the Court by way of the Motion of Defendant TD to Dismiss the Consolidated Amended Class Action Complaint of Plaintiffs Kyle Burns, Ruby Hayes, Jasmine Norville, and Lisa Rodriguez, pursuant to Fed. R. Civ. P. 12(b)(6). The putative class action consolidates four separate lawsuits previously commenced against TD in other state and federal courts. On Aug. 13, 2021, Plaintiff Kyle Burns filed a class action complaint against TD in New Jersey state court; TD subsequently removed Plaintiff Burns' action to this Court. Specifically, Plaintiff Burns initiated his lawsuit against TD in the Superior Court of New Jersey, Law Division (Camden County), under the caption Burns v. TD Bank, N.A., No. CAM-L-002478-21. On Nov. 12, 2021, TD filed a motion to dismiss Plaintiff Burns' complaint. In response, Plaintiff Burns filed an Amended Class Action Complaint, which added Plaintiff Ruby Hayes as a second plaintiff (the "Burns-Hayes Action"). Separate from the Burns-Hayes Action, Plaintiff Lisa Rodriguez filed her own putative class action complaint against TD in New Jersey state court alleging similar facts and claims. The Rodriguez Action was initiated on Jan. 3, 2022, in the Superior Court of New Jersey, Law Division (Middlesex County), and was captioned Rodriguez v. TD Bank, N.A., No. MID-L-000031-22. Plaintiff Jasmine Norville also filed a similar class action complaint against TD in for the Southern District of New York (No. 1:21-CV-09167-LJL (S.D.N.Y.)). On Jan. 27, 2022, and on joint motion of Plaintiff Norville and TD, the Norville Action was transferred to and docketed in this Court, where the Burns-Hayes Action was taking place (No. 1:22-CV-00416-KMW-AMD (D.N.J.)). Thereafter, on Feb. 11, 2022, the Burns-Hayes and Norville Actions were consolidated for all purposes (the "Consolidated Class Action") (No. 1:21-CV-18194-KMW-AMD (D.N.J.)). This same day, Plaintiff Rodriguez voluntarily dismissed her complaint, without prejudice, in New Jersey state court with the intent to join in the Consolidated Class Action. On Feb. 18, 2022, all Plaintiffs, together and on behalf of themselves and others similarly situated, filed a stipulated Consolidated Amended Class Action Complaint pursuant to Fed. R. Civ. P. 15(a)(2). On March 31, 2022, TD filed a Motion to Dismiss Plaintiffs' Amended Complaint, which is the subject of the instant Opinion. The Plaintiffs have submitted an Opposition to TD's Motion, and TD has filed a Reply thereto. On Nov. 2, 2022, the Court heard the arguments of counsel on TD's Motion. The case arises out of TD's alleged practice of charging overdraft fees on certain debit card transactions, even though the Plaintiffs had sufficient funds in their accounts at the time of these purchases. TD, a subsidiary of Toronto-Dominion Bank, is national bank headquartered in Cherry Hill, New Jersey. The Plaintiffs either presently have or have previously maintained checking accounts with TD. Like all of TD's checking-account customers, the Plaintiffs were issued debit cards, which enabled them to electronically access their accounts for purchases, payments, withdrawals, and other electronic debit transactions. The Plaintiffs' checking accounts are governed by a consumer banking agreement (the "Account Agreement"). Checking accounts are also governed by a one-page overdraft-fee disclosure (the "Overdraft Fee Disclosure"), which the Account Agreement expressly references and incorporates. In their Amended Complaint, the Plaintiffs challenge TD's overdraft-fee practices with respect to a specific subset of debit-card transactions, which they call "Authorize Positive, Purportedly Settle Negative" transactions ("APPSN transactions"). The Plaintiffs allege that they and others like them have suffered overdraft fees for the same APPSN transactions. This practice, the Plaintiffs submit, is not only fraudulent and deceptive, but is also a breach of the underlying Account Agreement governing their checking accounts. In addition, the Plaintiffs claim that TD's assessment of overdraft fees is unlawful because APPSN transactions technically do not overdraft their accounts at all. The Plaintiffs explain that, at the moment TD authorizes purchases on positive balances, TD simultaneously sets those funds aside and makes them off-limits to the accountholder. In the Plaintiff's view, this means that TD always has in its hands the exact amount of money it needs to settle those purchases later, making impossible any notion of an "overdraft" at the settlement stage of these specific transactions. Based on these alleged facts, the Plaintiffs assert four claims, for which they seek monetary damages, restitution, and declaratory relief: (1) breach of contract (Count I); (2) breach of the covenant of good faith and fair dealing (Count I); (3) violation of the New Jersey Consumer Fraud Act; and (4) violation of the New York General Business Law. As a threshold matter, the Court observes that the Account Agreement contains a choice-of-law provision providing that the law of the jurisdiction where an accountholder opens their account governs any dispute with respect to the same. Here, Plaintiffs Burns and Norville opened their accounts in New York (the "New York Plaintiffs"), and, thus, represent putative members of the "New York Subclass." Plaintiffs Hayes and Rodriguez, as accountholders in New Jersey (the "New Jersey Plaintiffs"), represent putative members of the "New Jersey Subclass." The presence of two citizenship-based subclasses, thus, implicates the laws of both New Jersey and New York. The parties appear to stipulate that the Account Agreement's choice-of-law provision does not violate New Jersey public policy; the Court agrees. Barring any differences in citizenship, the Plaintiffs' claims against TD are premised on the same factual allegations and demands for relief. Thus, the Court will apply New York law to the claims of the New York Plaintiffs, and New Jersey law to those of the New Jersey Plaintiffs. The Amended Complaint alleges that the Plaintiffs' APPSN transactions did not actually overdraw their accounts; that TD charged them overdraft fees anyway constituted a breach of the Account Agreement. In its Motion, TD argues that the Account Agreement unambiguously permits its overdraft-fee practices, and that the Plaintiffs breach of contract claim should, thus, be dismissed. The Amended Complaint appears to articulate two theories of breach, which the Court addresses and refers to in turn as the "timing theory" and the "sufficient-funds theory." With respect to the timing theory of breach, the Court finds that the Plaintiffs have offered an alternative, reasonable interpretation of the Account Agreement as to when precisely TD promises to make its overdraft determinations. Judge Williams notes that key terms and phrases purporting to define "overdraft" are ambiguous. But it is not unreasonable for the Plaintiffs to read them to mean that TD covers overdrafts--or that it "pays" for and advances the funds to "cover" overdrafts--at the authorization stage. Judge Williams also notes that it is equally reasonable to believe that TD will determine whether an overdraft "exceeds" a customer's available account balance--or whether the account is "not sufficient" to cover an overdraft--at the authorization stage. On this basis, TD's Motion to Dismiss is denied. Having thoroughly reviewed the Amended Complaint, the Account Agreement, the Overdraft Fee Disclosure, and the parties' submissions--and having also heard and considered the parties' arguments on the record--the Court finds that the Plaintiffs have articulated sufficiently reasonable interpretations of the Account Agreement such that their breach of contract claim may proceed under both theories of breach. Accordingly, TD's Motion to Dismiss the Plaintiff's breach of contract claim is denied. In addition to breach of contract, Count I of the Amended Complaint also asserts a claim for breach of the covenant of good faith and fair dealing. The Plaintiffs' allegations supporting their claim for breach of an implied covenant rely on and incorporate the same facts pled in support of their breach of contract claim. Judge Williams holds that the Plaintiffs cannot merely recite the same conduct it alleges for TD's breach of contract and transform such conduct into a breach of the implied duty of good faith and fair dealing. Accordingly, Count I of the Amended Complaint is dismissed, without prejudice, but only to the extent that it asserts a claim for breach of the implied covenant of good faith and fair dealing; the Plaintiffs' breach of contract claim under Count I remains. Because the Plaintiffs' implied covenant claim is dismissed as duplicitous, the Court declines to address TD's other arguments for dismissal. Counts II and III of the Amended Complaint set forth claims under the New Jersey Consumer Fraud Act (the "CFA") and the New York General Business Law (the "GBL"). TD presents three independent bases for dismissal. Specifically, TD argues that these claims should be dismissed because (1) the Account Agreement expressly permits TD's overdraft practices; (2) the claims are duplicative of the Plaintiffs' claim for breach of contract; and (3) the claims are preempted by federal law. At the outset, the Court rejects TD's first argument that the Plaintiffs' consumer fraud claims should be dismissed because the Account Agreement unambiguously permits the overdraft practices at issue. Dismissal on this basis is unwarranted because the Court has already found that the Account Agreement is ambiguous. Consequently, the Court only considers TD's remaining two arguments. Here, the New Jersey Plaintiffs allege that TD, as the sole author of the Account Agreement, deceptively misrepresented the true nature of its overdraft practices; employed overdraft practices that were contrary to the overall net impressions the Account Agreement worked to create; and did so for the purpose of increasing its overdraft-fee revenue. Judge Williams finds these allegations sufficient to plead substantial and aggravating circumstances, citing Hughes v. TD Bank, N.A., 856 F.Supp.2d 673, 681 (D.N.J. 2012). Whether TD's overdraft practices are "unconscionable" is a consideration reserved for a factfinder, Judge Williams says. The Court next addresses whether the New York Plaintiffs' Section 349 claim is duplicative of their breach of contract claim. The New York Plaintiffs allege that TD used deception and misrepresented the true nature of its overdraft practices; employed overdraft practices that were contrary to the overall net impressions the Account Agreement worked to create; and did so for the purpose of increasing its overdraft-fee revenue. Judge Williams holds that these alleged acts are sufficiently distinct from the allegations that TD violated the terms of the Account Agreement. Lastly, the Court addresses TD's argument that the Plaintiffs' claims under the CFA and GBL Section 349 should be dismissed because they are preempted by the National Bank Act ("NBA"). Because these matters implicate matters of federal law, the Court will address TD's argument with respect to both Counts II and III. The Court finds that the NBA does not expressly preempt the Plaintiffs' state consumer fraud claims. The Court also considers whether the Plaintiffs' CFA and Section 349 claims "forbid" or "impair significantly" TD's powers under the NBA. The Court concludes that they do not. Having already found that the Plaintiffs' state consumer fraud claims are not expressly preempted by the NBA, here too the Court finds that they are likewise not conflict-preempted. The Plaintiffs' claims arise out of state laws of general application, and can hardly be said to implicate, much less significantly impair, TD's deposit-taking powers under the NBA, Judge Williams explains. TD's Motion to Dismiss Counts II and III of the Amended Complaint is, accordingly, denied. For all of the reasons set forth, TD's Motion to Dismiss the Amended Complaint is granted, in part, and denied in part. TD's Motion to Dismiss Count I of the Amended Complaint is granted, but only to the extent that it asserts a claim for breach of covenant of good faith and fair dealing. As to all other claims, TD's Motion is denied. A full-text copy of the Court's Opinion dated Dec. 8, 2022, is available at https://tinyurl.com/4ky5pevu from Leagle.com. Kenneth J. Grunfeld, Esquire -- kgrunfeld@golomblegal.com -- Philip L. Fraietta, Esquire -- pfraietta@bursor.com -- E. Adam Webb, Esquire -- Adam@WebbLLC.com -- Matthew Girardi, Esquire -- mgirardi@bursor.com -- Julian Diamond, Esquire -- jdiamond@bursor.com -- Jeffrey D. Kaliel, Esquire -- jkaliel@kalielpllc.com -- Counsel for Plaintiffs Kyle Burns, Ruby Hayes, Lisa Rodriguez, and Jasmine Norville. Susan M. Leming, Esquire -- sleming@brownconnery.com -- Lucus A. Ritchie, Esquire -- lritchie@pierceatwood.com -- Cameron R. Goodwin, Esquire -- cgoodwin@pierceatwood.com -- Joshua D. Dunlap, Esquire -- jdunlap@pierceatwood.com -- Counsel for Defendant TD Bank, N.A. TEVA BRANDED: Morrison Suit Transferred to D. New Jersey -------------------------------------------------------- The case styled as Melissa Morrison, an individual; Kellie Valencia, an individual; and Karie Kuehl, an individual, and other similarly situated individuals v. TEVA BRANDED PHARMACEUTICAL PRODUCTS R&D, INC., f/k/a Teva Global Respiratory Research, LLC.; TEVA PHARMACEUTICALS USA, INC.; ALZA CORPORATION; JANSSEN RESEARCH & DEVELOPMENT LLC f/k/a Johnson & Johnson Research & Development, LLC; ORTHO-MCNEIL PHARMACEUTICAL, LLC; JANSSEN PHARMACEUTICALS, INC. d/k/a Ortho-McNeil-Janssen Pharmaceuticals, Inc. f/k/a Janssen Pharmaceutica Inc.; JANSSEN ORTHO LLC; JOHNSON & JOHNSON; DR. C. LOWELL PARSONS, MD, an individual; and DOES 1-20, Case No. 3:22-cv-01074 was transferred from the United States District Court for the Southern District of California, to the United States District Court for the District of New Jersey on Dec. 15, 2022. The District Court Clerk assigned Case No. 2:22-cv-07285 to the proceeding. The nature of suit is stated as Personal Injury: Health Care/Pharmaceutical Personal Injury Product Liability. Teva Branded Pharmaceutical Products R&d, Inc. -- https://www.tevapharm.com/ -- was founded in 2008. The company's line of business includes the manufacturing, fabricating, or processing of drugs in pharmaceutical preparations for human or veterinary use.[BN] The Defendants are represented by: Matthew K. Ashby, Esq. Julia E. Romano, Esq. Stacy L. Foster, Esq. KING & SPALDING LLP 633 West Fifth Street, Suite 1600 Los Angeles, CA 90071 Phone: +1 213 443 4355 Facsimile: +1 213 443 4310 Email: mashby@kslaw.com jromano@kslaw.com stacy.foster@kslaw.com TMS MANAGEMENT: Lopez Sues Over Unpaid Minimum and Overtimes Wages ------------------------------------------------------------------ Gelson Alcantara Lopez and Ramon Arias, individually and on behalf of others similarly situated v. TMS MANAGEMENT, T-STONE CORP., SACCHETTI REALTY, VITO SACCHETTI, MICHAEL SACCHETTI, and any other related individuals and/or entities, Case No. 1:22-cv-10714-JGK (S.D.N.Y., Dec. 20, 2022), is brought to seek redress against the Defendants for the systematic failure by the Defendants to provide the required minimum wage and overtimes wages and spread of hour wages and for the failure to provide wage payment statements and wage theft prevention act notifications in violation of the Fair Labor Standards Act and the New York Labor Law. The Defendant failed to pay the Plaintiffs at a rate of one- and one-half times their regular rate for all hours he worked over forty in a week. Plaintiffs were entitled to be paid at least one and one-half times the minimum wage rate and/or the regular hourly rate of pay for each hour in excess of 40 hours that the Plaintiff worked in any workweek pursuant to the FLSA and NYCRR. Throughout the Plaintiff's employment, the Plaintiff worked in excess of 40 hours per workweek and was entitled to receive overtime wages. The Defendant regularly failed to pay the Plaintiff overtime wages of one and one-half times the minimum wage rate and/or the regular hourly work rate of pay for all hours that the Plaintiff worked in excess of 40 per workweek in violation of the FLSA and NYLL, says the complaint. The Plaintiffs worked for the Defendants. TMS Management, Inc. manages residential buildings, including the buildings where Plaintiffs worked.[BN] The Plaintiff is represented by: Frank J. Tantone, Esq. BELL LAW GROUP, PLLC 116 Jackson Ave. Syosset, NY 11791 Phone: (516) 280-3008 Email: ft@Belllg.com TRIBECA ENTERPRISES: Hanyzkiewicz Files ADA Suit in E.D. New York ----------------------------------------------------------------- A class action lawsuit has been filed against Tribeca Enterprises, LLC. The case is styled as Marta Hanyzkiewicz, on behalf of herself and all others similarly situated v. Tribeca Enterprises, LLC, Case No. 1:22-cv-07714 (E.D.N.Y., Dec. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tribeca Enterprises -- https://tribecafilm.com/ -- is a media outlet that offers news and updates of different entertainment industries.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com TRIPLE EIGHT: Iskhakova Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Triple Eight Distribution, Inc. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Triple Eight Distribution, Inc., Case No. 1:22-cv-07752 (E.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Triple Eight Distribution -- https://triple8.com/ -- is a designer and distributor of protective gears including pads and helmets for wheeled sporting activities.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com TRU KIDS INC: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against TRU Kids, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. TRU Kids, Inc., Case No. 1:22-cv-10718 (S.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tru Kids, Inc. -- https://www.trukidsbrands.com/ -- is an American retail and licensing company that operates the Toys "R" Us locations in the United States.[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 UMPQUA BANK: Camenisch Wins Class Status Bid -------------------------------------------- In the class action lawsuit captioned as SHELA CAMENISCH, et al., v. UMPQUA BANK,Case No. 3:20-cv-05905-RS (N.D. Cal.),the Hon. Judge Richard Seeborg entered an order denying the defendant's summary judgment bid and granting class certification as follows: "All persons who invested money with Professional Financial Investors, Inc. or Professional Investors Security Fund, Inc. (PISF) through secured or unsecured debt instruments or an LLC membership purchase agreement; who did not recover the principal amount of their investment prior to July 14, 2020; and who have a valid, allowed claim in In re Professional Financial Investors, Inc., Case No. 20-bk-30604 (Bankr.N.D. Cal.) or any of its affiliated debtor bankruptcy cases, jointly administered under Case No. 20-bk-30604." -- Umpqua's motion for summary judgment and its motion to exclude the report of Dan Salah are denied. -- The Plaintiffs' motion for class certification is granted. -- The pending sealing motions 14 are denied without prejudice to the parties' submission of a proposed sealing orde.r A large number of sealing motions have been filed in connection with the present matters. The foundation of Umpqua's opposition to class certification is its view that the members of the proposed class hold "fundamentally different claims," based on distinctions in the various types of investments they made, profitability differences among the various projects, and the different points in time in which class members made investments. The Plaintiffs in this putative class action are victims of an alleged Ponzi scheme carried out by Kenneth Casey through two companies he founded and controlled-Professional Investors Security Fund, Inc. and Professional Financial Investors, Inc. ("PFI"). Casey is deceased, and PISF and PFI are in bankruptcy. The Plaintiffs seek to recover damages from Umpqua Bank, the financial institution that handled all of the accounts of PISF and PFI. In May of 2020 Casey died. His former wife, apparently the beneficiary of his estate, asked an attorney to help transition ownership of the business. The attorney immediately recognized PFI was insolvent and could not legitimately meet its monthly obligations to investors. Further investor payments were frozen, the SEC was alerted, and the companies were forced into bankruptcy. All of the companies' officers resigned. Umpqua Bank offers banking, lending, and wealth management services. A copy of the Court's order dated Dec. 16, 2022 is available from PacerMonitor.com at https://bit.ly/3hCq4Di at no extra charge.[CC] UMPQUA BANK: Summary Judgment Bid in Camenisch Class Suit Denied ---------------------------------------------------------------- In the case, SHELA CAMENISCH, et al., Plaintiffs v. UMPQUA BANK, Defendant, Case No. 20-cv-05905-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California: a. denies Umpqua's motion for summary judgment and its motion to exclude the report of Dan Salah; b. grants the Plaintiffs' motion for class certification; and c. denies the pending sealing motions without prejudice to the parties' submission of a proposed sealing order. The Plaintiffs in this putative class action are victims of an alleged Ponzi scheme carried out by Kenneth Casey through two companies he founded and controlled -- Professional Investors Security Fund, Inc. ("PISF") and Professional Financial Investors, Inc. ("PFI"). Casey is deceased, and PISF and PFI are in bankruptcy. The Plaintiffs, therefore, seek to recover damages from Umpqua Bank, the financial institution that handled all of the accounts of PISF and PFI. They now move to certify the class, and Umpqua moves for summary judgment. There is no dispute that PISF and PFI started out as legitimate, profitable, businesses that focused on acquiring and operating commercial real estate in Marin and Sonoma Counties. PISF was founded by Casey in 1983. PFI was incorporated in 1990. Around that same time, Casey hired Lewis Wallach, who later became PFI's President and began handling its day-to-day operations. Although it was originally contemplated that PFI would take over PISF's business, the entities instead began operating together. Hereinafter, the two entities will be referred to collectively as PFI, unless otherwise specified. PFI's model was to use investor-sourced funds to purchase and operate properties, with the ultimate goal of selling them after they had appreciated. PFI ultimately acquired 71 properties, estimated to be worth $550 million when it eventually filed for bankruptcy. PFI offered five different forms of investment vehicles over the years. Initially, PFI gave investors the opportunity to become limited partners in partnerships that acquired and managed specific properties. Later PFI offered second deeds of trust on properties it acquired in its own name, with commercial financing. PFI eventually also offered unsecured promissory notes, with higher interest rates than provided by the deeds of trust. In 2012, PFI began offering membership interests in limited liability companies, which like the earlier limited partnerships, were formed for specific properties. Finally, PFI offered interests in tenancies-in-common, which enabled investors who were selling their own investment properties to acquire title directly and thereby take advantage of the IRS's "1031 exchange" rules. Although PFI began as a legitimate enterprise, at some point its revenues became insufficient to pay its debts and it began relying on new investments to help pay expenses. At that point, in the Plaintiffs' view, it became a Ponzi scheme. The Plaintiffs assert Wallach has admitted those conditions arose in the mid-2000s. PFI offered its investment vehicles primarily to Bay Area locals. Over the past 15 years, it raised hundreds of millions of dollars from more than a thousand investors. The Plaintiffs complain that none of them were told the truth that PFI was raising money from new investors to pay existing investors and that Casey and Wallach were diverting funds to themselves. They admit the real estate investments were genuine, but contend they generated far less rental income than necessary to pay investors as promised, and were so heavily encumbered as to make the supposed collateral worthless or nearly worthless. In May of 2020, Casey died. His former wife, apparently the beneficiary of his estate, asked an attorney to help transition ownership of the business. The attorney immediately recognized PFI was insolvent and could not legitimately meet its monthly obligations to investors. Further investor payments were frozen, the SEC was alerted, and the companies were forced into bankruptcy. All of the companies' officers resigned. June Weaver, who was the Umpqua employee with primary responsibility for PFI's accounts -- its so-called "private banker" -- retired. Wallach later pled guilty to defrauding investors and embezzling over $26 million of investor money from the companies' bank accounts and is currently serving a 12-year prison sentence. A subsequent financial review commissioned by PFI's newly appointed independent director confirmed that new investor funds had been transferred to existing investors and to Casey and Wallach's personal bank accounts since at least 2007. The Plaintiffs contend that as result of PFI's fraud, the 1,267 investors in the proposed class contributed $454 million they otherwise would not have invested with the entities. The investors are expected to recover only $100 to $120 million from the bankruptcy proceedings, leaving them with uncompensated losses in excess of $300 million. As they did at the motion to dismiss stage, the parties agree that Umpqua cannot be liable for aiding and abetting PFI's fraud unless it had actual knowledge of the wrongdoing -- constructive knowledge will not suffice. Therefore, even the existence of "red flags" that arguably should have put Umpqua on notice that something "fishy" was taking place is insufficient to create a triable issue of fact. As Umpqua correctly acknowledges, however, in some instance the same kinds of evidence that could be used to argue the bank should have known (were constructive knowledge sufficient), may support an inference that the bank must have known. Although the Plaintiffs are sometimes imprecise and use the term "red flags" or other language more applicable to a constructive knowledge standard, they concede they will be required to show at trial that the bank had actual knowledge. The question at this juncture, therefore, is whether the evidence to which the Plaintiffs point, whether described as "red flags" or otherwise, is sufficient to permit a reasonable jury to infer that Umpqua must have known -- i.e., had actual knowledge -- of the fraud. Taking this factual record as a whole, Judge Seeborg finds that Umpqua is not entitled to summary judgment. Umpqua correctly characterizes California case law as setting a high bar for bank liability. In Casey v. U.S. Bank Nat. Ass'n, 127 Cal.App.4th 1138, 1151 (2005), for example, the trustee of a bankrupt corporation sued the bank defendants for aiding and abetting alleged embezzlement by the former officers and directors of the bankrupt corporation. Nevertheless, the complaint did not survive demurrer. In the present case, while there are no allegations as dramatic as cash removed in unmarked duffel bags, Judge Seeborg finds evidence of direct participation by bank employees, and in particular Weaver, in some of the mechanics of the scheme. While Umpqua stresses that performing ordinary banking transactions at the customer's request does not suffice, he says the evidence includes instances where Weaver went well outside the bounds of ordinary banking transactions, including times where she did so on her own initiative. Casey and the other case precedents on which Umpqua relies did not involve similar affirmative conduct by bank employees, and therefore do not preclude liability as a matter of law in these circumstances. For these reasons, the motion for summary judgment therefore must be denied. The Plaintiffs seek to certify a class of: All persons who invested money with Professional Financial Investors, Inc. (PFI) or Professional Investors Security Fund, Inc. (PISF) through secured or unsecured debt instruments or an LLC membership purchase agreement; who did not recover the principal amount of their investment prior to July 14, 2020; and who have a valid, allowed claim in In re Professional Financial Investors, Inc., Case No. 20-bk-30604 (Bankr.N.D. Cal.) or any of its affiliated debtor bankruptcy cases, jointly administered under Case No. 20-bk-30604. In response to Umpqua's objection that this class definition includes corporate entities, the Plaintiffs express a willingness to modify the definition to clarify that it applies only to individual investors. Such a modification is appropriate and will be required, according to Judge Seeborg. He finds that both the evidence to which the Plaintiff points and Umpqua's evidence offered in rebuttal on the knowledge issue apply to the entire class, and involve no individualized inquiries. He also finds that while Umpqua challenges the propriety of the measure of damages the Plaintiffs seek, it has not shown that legal dispute is a basis to preclude class certification. Further, Umpqua has failed to show that out-of-state Plaintiffs cannot pursue claims under California law. Finally, a large number of sealing motions have been filed in connection with the present matters. Although some designations of material as confidential have been withdrawn, Judge Seeborg finds that the portions of briefing, declarations, and exhibits still proposed to remain under seal are grossly excessive. Some very narrow categories of information, such as personal financial information of proposed class members, may warrant sealing. Upon a sufficiently strong showing of a need for confidentiality, Umpqua might be entitled to seal particularly sensitive details of its internal operations. The broad swaths of material presently proposed for sealing as relating to the bank's business and procedures, however, is wholly inappropriate. The parties are directed to meet and confer within the next 60 days to negotiate a joint proposed omnibus sealing order that addresses all of the sealing motions and that is narrowly tailored to seal only the properly sealable material. The proposed order should clearly identify the limited material one or both parties still contend is appropriately sealed. To the extent Umpqua seeks sealing of information regarding its operations or conduct, it must establish cause with adequate explanation and non-conclusory declarations. In view of the foregoing, Judge Seeborg denies Umpqua's motion for summary judgment and its motion to exclude the report of Dan Salah. He grants the Plaintiffs' motion for class certification. He denies the pending sealing motions without prejudice to the parties' submission of a proposed sealing order, as set out. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/58yvp7kk from Leagle.com. UNITED AIRLINES: Hughes Suit Removed to N.D. California ------------------------------------------------------- The case captioned as Darrell Hughes, individually and on behalf of all others similarly situated v. UNITED AIRLINES, INC.; and DOES 1 through 20, inclusive, Case No. 22CV020677 was removed from the Superior Court of the State of California for the County of Alameda, to the United States District Court for the Northern District of California on Dec. 19, 2022, and assigned Case No. 3:22-cv-08967-LB. In the Complaint, the Plaintiff asserts claims for: failure to pay reporting time pay; failure to provide meal periods; failure to permit rest breaks; failure to reimburse all business expenses; failure to keep accurate payroll records; failure to pay waiting time penalties; and violation of Business and Professions Code.[BN] The Defendants are represented by: Amanda C Sommerfeld, Esq. JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2452 Phone: +1.213.489.3939 Facsimile: +1.213.243.2539 Email: asommerfeld@jonesday.com - and - Aracely Abarca, Esq. JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2452 Phone: +1.213.489.3939 Facsimile: +1.213.243.2539 Email: aabarca@jonesday.com - and - Renee Pauline T. Perez, Esq. JONES DAY 555 California Street Twenty-Sixth Floor San Francisco, CA 94104.1503 Phone: +1.415.626.3939 Facsimile: +1.415.875.5700 Email: rpperez@jonesday.com UNITED TACTICAL: Toro Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against United Tactical Systems, LLC. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. United Tactical Systems, LLC, Case No. 1:22-cv-10717 (S.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. United Tactical provides mission support materials for the military.[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 UPRISE ART LLC: Iskhakova Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Uprise Art, LLC. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Uprise Art, LLC, Case No. 1:22-cv-07715 (E.D.N.Y., Dec. 19, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Uprise Art -- https://www.upriseart.com/ -- is an online art gallery that helps you discover original contemporary artwork by emerging artists for the spaces where you live and work.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com URBAN ANGLER: Iskhakova Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Urban Angler, LLC. The case is styled as Marina Iskhakova, on behalf of herself and all others similarly situated v. Urban Angler, LLC, Case No. 1:22-cv-07762 (E.D.N.Y., Dec. 20, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Urban Angler -- http://staging.urbanangler.com/-- is a high-end fly-fishing specialist offering rods, tackle & apparel plus guides & travel services.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com VISION SOLAR: Bid to Remand Calta Class Suit to State Court Granted ------------------------------------------------------------------- Judge Charlene Edwards Honeywell of the U.S. District Court for the Middle District of Florida, Tampa Division, grants the Plaintiff's motion to remand the case, MICHAEL CALTA, Plaintiff v. VISION SOLAR FL, LLC, Defendant, Case No. 8:22-cv-897-CEH-MRM (M.D. Fla.), to the state court. Vision Solar removed the class action from state court pursuant to 28 U.S.C. Section 1332 and the Class Action Fairness Act ("CAFA"), alleging that the parties are minimally diverse, the action involves a class greater than 100 persons, and the amount in controversy exceeds five million dollars. Calta now moves to remand the action, arguing that the Defendant has not established the amount in controversy. Vision Solar has responded in opposition, and Calta has replied. Calta initiated the class action in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida on March 28, 2022, on behalf of himself individually and all similarly situated persons. He alleges that Vision Solar violated the Florida Telephone Solicitation Act ("FTSA"), Fla. Stat. Section 501.059, by using an automatic system to solicit Floridians with calls and texts messages without their express written consent. Calta seeks to represent two different classes, one for the receipt of texts from Vision Solar and one for phone calls, but otherwise identical in description. The putative classes are defined as follows: "All persons in Florida who: (1) were sent a text message/received solicitation telephone calls regarding Defendant's goods and/or services, (2) without his or her prior, express written consent, (3) using the same equipment or type of equipment utilized to send text messages to/call Plaintiff, (4) on or after June 1, 2021." On April 15, 2022, Vision Solar removed this action to federal court. In its Amended Notice of Removal and subsequent Response in Opposition to Remand, Vision Solar asserts that it is facially apparent and readily deducible from the allegations in the Complaint that CAFA's jurisdictional requirements have more likely than not been satisfied. In contending that the amount in controversy threshold is met, Vision Solar relies on deductions from the Plaintiff's allegations that it believes the Class members number in the several thousands, and upon information and belief, the Defendant has sent offending communications to telephone numbers belonging to thousands of Florida consumers. It further asserts that Calta's own factual circumstances of receiving five allegedly violative calls or texts should be considered "typical" of each class member in calculating the amount in controversy. Finally, it argues that because the Complaint alleges "knowing" violations of the FTSA, which carry a discretionary penalty of up to $1,500, the amount in controversy should be calculated with this maximum penalty for each claim. As such, the amount in controversy easily surpasses the CAFA threshold of five million dollars. Calta now moves to remand thieaction to state court for lack of subject matter jurisdiction, arguing that Vision Solar has failed to establish the requisite amount in controversy. First, he asserts that the five FTSA violations he experienced should not be applied to every member of the putative class for the purpose of the amount in controversy. Vision Solar has also failed to establish that the statutory maximum of $1,500 should be applied as to each class member. Finally, Calta argues that Vision Solar cannot rely on the Complaint's allegations of "several thousands" and "thousands" of class members because they are explicitly premised on his "knowledge and belief," while emphasizing that the "exact number is unknown at this time and can only be ascertained through discovery." The Complaint's allegations, on their own, are too speculative to establish the number of class members for the purpose of calculating the amount in controversy. In its response, Vision Solar states that it has not engaged in unwarranted speculation and the Complaint's allegations show that the amount in controversy exceeds $5 million dollars. It calculates that there are at least 3,000 members for each of the two class categories, for a total of 6,000. Because each class member alleges five violations and each violation carries a statutory penalty of up to $1,500, the amount in controversy is $45 million. Of CAFA's four jurisdictional requirements, Calta challenges only the amount in controversy. Vision Solar has not supplemented its Notice of Removal with any evidence beyond the initial Complaint. Judge Honeywell must therefore consider whether it is facially apparent from the Complaint that the amount in controversy exceeds the jurisdictional threshold of five million dollars. Determining the amount in controversy in the action requires knowing the damages at issue for each alleged violation of the FTSA, the number of violations per class member, and the total number of class members. Judge Honeywell finds there is insufficient evidence to find that the amount in controversy more likely than not exceeds the $5 million threshold. The Complaint supports reasonable inferences that each class plaintiff will allege at least one or two claims, with a maximum of $1,500 in damages per claim. To exceed the jurisdictional threshold, then, Vision Solar must establish by a preponderance of the evidence that there will be more than 3,334 total class members. Vision Solar has chosen to rely solely on the Complaint rather than offering any extrinsic evidence as to the number of class members. But the Complaint's allegation that "upon information and belief" there are "thousands" of class members is too speculative for the Court to credit blindly without engaging in judicial stargazing. Therefore, Vision Solar has not satisfied its burden of proof of demonstrating that the amount in controversy threshold is met. The motion for remand is due to be granted. Judge Honeywell notes that Vision Solar is not barred from seeking federal jurisdiction for this action in the future. Under CAFA, class actions may be removed at any point during the pendency of litigation in state court, so long as removal is initiated within thirty days after the defendant is put on notice that a case which was not removable based on the face of the complaint has become removable. In other words, a CAFA defendant who fails to meet its burden for removal at the early stages of litigation may re-remove to the federal courts later, after a fuller record has been developed in discovery in state court. On the current record, however, subject matter jurisdiction does not exist. Accordingly, Calta's Motion for Remand is granted. The action is remanded to the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The Clerk is directed to send a certified copy of the Order to the Clerk of Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The Clerk is further directed to terminate all pending motions and close the case. A full-text copy of the Court's Dec. 16, 2022 Order is available at https://tinyurl.com/mstrdw68 from Leagle.com. WING FINANCIAL SERVICES: Deevers Files Suit in N.D. Oklahoma ------------------------------------------------------------ A class action lawsuit has been filed against Wing Financial Services LLC. The case is styled as Kathy Deevers, individually and on behalf of all others similarly situated v. Wing Financial Services LLC, Case No. 4:22-cv-00550-CVE-JFJ (N.D. Okla., Dec. 19, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Wing Financial Services -- https://www.wingsfinancial.com/ -- offers everyday money management to affordable loans.[BN] The Plaintiff is represented by: William Bernard Federman, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Ave. Oklahoma City, OK 73120 Phone: (405) 235-1560 Fax: (405) 239-2112 Email: wbf@federmanlaw.com WIRECARD AG: EY Germany's Bid to Dismiss Securities Suit Granted ---------------------------------------------------------------- In the lawsuit titled IN RE WIRECARD AG SECURITIES LITIGATION. THIS DOCUMENT RELATES TO ALL CASES, Case No. 2:20-cv-03326-AB (E.D. Pa.), Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania, grants EY Germany's motion to dismiss for lack of personal jurisdiction. Plaintiffs Thanh Sam and Lawrence Gallagher bring this securities class action against Defendant Wirecard AG, Defendant Ernst & Young GmbH Wirtschaftspruefungsgesellschaft ("EY Germany"), and Individual Defendants Markus Braun, Burkhard Ley, Alexander von Knoop, Jan Marsalek, Susanne Steidl, and Wulf Matthias for violations of Section 10(b) of the 1934 Securities Exchange Act ("1934 Act"). The Plaintiffs bring this action on behalf of themselves and similarly situated purchasers of unsponsored American Depositary Receipts ("ADRs") under the symbol WCAGY and F-shares of Wirecard common stock under the symbol WRCDF on the over-the-counter ("OTC") market from Aug. 17, 2015, to June 26, 2020. An entry of default was requested and entered as to Defendant Markus Braun. Individual Defendants Jan Marsalek, Burkhard Ley, Susanne Steidl, Alexander Von Knoop, and Wulf Matthias were dismissed by this Court for lack of service. The Plaintiffs claim that Wirecard and EY Germany made false and misleading statements in connection with OTC stock transactions, and that the Plaintiffs relied upon those statements as investors. EY Germany moves to dismiss for lack of personal jurisdiction. In the alternative, EY Germany moves to dismiss for insufficient service of process, failure to state a claim, and forum non conveniens. EY Germany is a German accounting firm incorporated and operating in Germany. It is a member firm of Ernst & Young Global Limited, which is structured so that member firms are legally distinct from other member firms. EY Germany has no offices or employees in the United States. EY Germany was responsible for auditing the Group financial statements of Wirecard for over ten years; these financial statements were used in Wirecard's annual reports. The Plaintiffs filed this class action on behalf of purchasers of Wirecard unsponsored ADRs and F-shares from Aug. 17, 2015, through June 26, 2020. They allege that EY Germany's audits of Wirecard constituted misrepresentations in violation of federal securities laws, that American investors relied upon these representations when purchasing Wirecard shares on the OTC market, and that those shares dropped significantly in value after Wirecard's allegedly fraudulent representations of its financial health came to light. The Plaintiffs allege that Wirecard was only able to successfully perpetrate its massive accounting scheme because of EY Germany's knowing complicity or egregious refusal to see the obvious or to investigate the doubtful. The Wirecard scandal and EY Germany's alleged connection to it gave rise to this lawsuit. Wirecard was a company headquartered in Aschheim, Germany, that processed credit card payments as an "acquirer," meaning that it collected money from an "issuer" of a credit card and distributed those funds to the merchant, who charged the credit card. In 2021, Wirecard filed a notice of bankruptcy, and the case has been placed in suspense as to Wirecard alone since that filing. Wirecard's securities are traded in Germany on the Frankfurt Stock Exchange, the Borse Stuttgart and the Tradegate Exchange under the ticker symbol WDI, unsponsored ADRs based on Wirecard common stock are traded in the United States on the OTC market under the symbol "WCAGY," and F-shares of Wirecard common stock are traded in the United States under the symbol "WRCDF." Wirecard's subsidiary Wirecard North America was headquartered in Conshohocken, Pennsylvania. Wirecard went public in 2005 on the Frankfurt Stock Exchange and its stock price subsequently increased following a series of acquisitions of "11 companies and numerous portfolios of customers from other payment companies." At the same time, Financial Times reporting revealed mischaracterizations of Wirecard's finances in its annual reports, fueling investor concerns that Wirecard's success was too good to be true. Amidst those growing concerns, EY Germany, as Wirecard's auditor, issued audits that Wirecard relied upon during this period to claim its business was healthy and growing. Each of EY Germany's audit opinions were published with Wirecard's annual reports. As Wirecard's primary auditor, EY Germany interacted with Ernst & Young US LLP ("EY U.S.") by instructing EY US through Interoffice Instructions to conduct audit work for Wirecard Group reporting purposes on the reporting packages of Wirecard North America Inc. in the United States. This was one of those procedures required for the primary auditor in the course of a Group audit, i.e. critical review of the interoffice reporting to EY Germany. In 2019, whistleblowers told the Financial Times that Wirecard Singapore's reported revenues for 2018 likely reflected sham financial transactions; afterwards, EY Germany issued an "unqualified audit that said there was no evidence that the FY18 annual results needed correction due to the whistleblower allegations regarding Singapore." Defendant Braun, the former CEO of Wirecard, pointed to the unqualified audit by EY Germany in a conference call with investors to quell fears that Wirecard did not have the funds it claimed to have in its annual reports. During this period, the Plaintiffs purchased unsponsored ADRs and F-shares; these instruments were set at prices that largely mirrored market prices of the Wirecard stock listed on German stock exchanges. In the wake of reporting beginning in 2019 by the Financial Times about Wirecard's suspected faulty accounting practices, Wirecard's share prices dropped steadily. In October 2019, Wirecard hired KMPG, another accounting firm, to conduct an independent audit in response to the reporting. In its independent investigation, KPMG determined that EY Germany's handling of the whistleblower complaint would have warranted a range of responses, including further investigation by a third party. But EY Germany did not pursue any of them. Finally, the Financial Times also reported that EY Germany issued an unqualified audit opinion covering Wirecard's 2016 finances even after expressing concern about accounting malpractice in India and originally stating it would publish a qualified audit opinion due to these concerns. In June 2020, Wirecard admitted that EUR1.9 billion that it claimed was deposited in escrow accounts in the Philippines does not exist. It announced on June 18, 2020, that EY Germany was not able to gather "sufficient audit evidence" for the EUR1.9 billion said to be held as "cash balances on trust accounts." After that announcement, Wirecard's shares fell significantly and the two Philippines banks verified that the trust accounts did not exist. In response, EY Germany publicly stated: "There are clear indications that this was an elaborate and sophisticated fraud involving multiple parties around the world in different institutions with a deliberate aim of deception." By the end of the month, Wirecard was insolvent and the price of its shares fell by over 99 percent. Defendant Braun was arrested and Wirecard's former Chief Operating Officer, Defendant Marsalek, fled Germany. Ultimately, German prosecutors charged former Wirecard officials with aggravated fraud. The Plaintiffs allege that EY Germany's auditing of Wirecard "failed to comply with numerous applicable accounting standards" and enabled Wirecard to dupe investors. They claim that the Defendants, including EY Germany, violated Section 10(b) of the 1934 Act & Rule 10b-5 because they: (a) employed devices, schemes, and artifices to defraud; (b) made untrue statements of material fact or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (c) engaged in acts, practices, and a course of business that operated as a fraud or deceit upon the Plaintiffs and other similarly situated in connection with their purchases of Wirecard securities during the Class Period. EY Germany moves to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). In the alternative, it moves to dismiss for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and forum non conveniens. The Plaintiffs advance two theories to support its claim of specific jurisdiction: (1) that Wirecard's usage of EY Germany's audits constitutes purposeful availment simply because those audits reached American investors; and (2) that EY Germany's relationship with EY U.S. eventually reached into the U.S. Both theories fail, Judge Brody holds. The first theory fails to establish that EY Germany purposefully availed itself of the United States because EY Germany's auditing activities were not directed toward the forum, Judge Brody states. As in Leasco Data Processing Equipment Co. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972), Judge Brody says EY Germany auditors could not have known about the use of their audits by American investors simply because their audits were later placed on Wirecard's website in English, where they might be read by American investors making purchases of unsponsored Wirecard ADRs and F-shares on the OTC market. Finding otherwise would mean that any accounting firm around the world could expect to be haled into any jurisdiction in which a company audited by the firm might direct its financial products. As for the second theory, the Plaintiffs argue that EY Germany was involved in auditing financial statements of Wirecard subsidiaries, including Pennsylvania-based Wirecard North America. But EY Germany, a German entity separate from other EY firms and EY Global, was not involved in the direct auditing of Wirecard North America--that was the work of EY U.S., which EY Germany assisted in reviewing one step further removed, Judge Brody notes. Though the "Group" had an American subsidiary, EY Germany was not directly involved in auditing Wirecard North America, Judge Brody holds. Therefore, under either theory, Judge Brody holds EY Germany did not purposefully avail itself of the privileges of conducting activities within the United States and this Court cannot exercise specific jurisdiction over EY Germany. A full-text copy of the Court's Memorandum dated Dec. 8, 2022, is available at https://tinyurl.com/22yutkx9 from Leagle.com. A full-text copy of the Court's Order dated Dec. 8, 2022, is available at https://tinyurl.com/rcv4xvk7 from Leagle.com. XPO LAST MILE: Mejia Suit Removed to N.D. California ---------------------------------------------------- The case captioned as Maynor Mejia, an individual; individually and on behalf of all similarly situated individuals v. XPO LAST MILE, INC., A Georgia Corporation, and DOES 1 through 25, Inclusive, Case No. 22-CV-020443 was removed from the Superior Court of the State of California for the County of Alameda, to the United States District Court for the Northern District of California on Dec. 19, 2022, and assigned Case No. 3:22-cv-08976. The Plaintiff asserts nine causes of action against RXO LM including claims of failure to pay minimum wage, overtime compensation, meal and rest periods, and business expense reimbursement under California Labor Code. Plaintiff also asserts causes of action for wage deductions, failure to furnish accurate wage statements, waiting time penalties, under Labor Code, and unfair competition under California Business and Professions Code.[BN] The Defendants are represented by: Benjamin J. Schnayerson, Esq. Julie Y. Zong, Esq. JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111-4615 Phone: (415) 394-9400 Facsimile: (415) 394-9401 Email: Ben.Schnayerson@jacksonlewis.com Julie.Zong@jacksonlewis.com YERBA MATE CO: Reyes Files Suit in Cal. Super. Ct. -------------------------------------------------- A class action lawsuit has been filed against The Yerba Mate Co., LLC, et al. The case is styled as Jeffrey Reyes, as an individual on behalf of himself and on behalf of all others similarly situated v. The Yerba Mate Co., LLC, Guayaki Sustainable Rainforest Products, Inc., Does 1-100, Case No. 34-2022-00331592-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec. 19, 2022). The case type is stated as "Other Employment - Civil Unlimited." The Yerba Mate Co., LLC doing business as Guayaki Sustainable Rainforest Products, Inc., more commonly known as Guayakí -- https://guayaki.com/ -- is an organic beverage company specializing in yerba mate products based in Sebastopol, California.[BN] The Plaintiff is represented by: Zachary Crosner, Esq. CROSNER LEGAL, P.C. 9440 Santa Monica Blvd. Suite 301 Beverly Hills, CA 90210 Phone: (310) 496-5818 Fax: (310) 510-6429 Email: zach@crosnerlegal.com ********* 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. 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