/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230104.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 4, 2023, Vol. 25, No. 4 Headlines 3M COMPANY: Denial of Bid to Toss Nuisance Abatement Claim Upheld ANHEUSER-BUSCH LLC: Denial of Dhillon's Bid for Class Cert. Flipped AT HOME: Sadullaev Appeals Wage Suit Ruling to N.Y. Appellate Div. AVANTI INSTALL: Bainbridge Files Suit in Cal. Super. Ct. BANK OF AMERICA: Nelson Sues Over Failure to Provide Notice BRIAN SAHD: Muniz Sues to Recover Unpaid Overtime Wages CARDONE CAPITAL: 9th Cir. Affirms in Part Dismissal of Pino Claims CHRISTUS HEALTH: Rodriguez Sues Over Failure to Secure PII DAKOTA PLAINS: $5.7M in Attys.' Fees, Costs Awarded in Grauber Suit DAMHORST TOYS: Toro Files ADA Suit in S.D. New York DIAGEO NORTH AMERICA: Mao Sues Over False Labeling and Advertising DUDE PRODUCTS: Partial Judgment on Pleadings in Harleysville Okayed E&R SERVICES INC: Cano Sues to Recover Unpaid Wages & Overtime Pay EHPLABS LLC: Santana Files ADA Suit in N.D. New York ELITE STRENGTH: Zarzuela Files ADA Suit in S.D. New York ETHOS GROUP: Gorman Sues Over Failure to Secure and Safeguard PII FAMILY HOME: Teshabaeva Files Appeal in Wage-and-Hour Suit FANTASIA TRADING: Blodgett Sues Over False Advertisements FINGERHUT ADVANTAGE: Gross Sues Over Inaccurate Reporting of Credit GATEWAY REHABILITATION: Coast Files Suit in W.D. Pennsylvania GREATFOODS IT'S VEGAN: Zarzuela Files ADA Suit in S.D. New York HANOVER DIRECT: Jackson Files ADA Suit in S.D. New York HARVARD MAINTENANCE: Baez Suit Removed to D. Massachusetts HOMELAND SECURITY: $2.75M in Attys.' Fees & Costs Given in Nio Suit HOPE COLLEGE: Devries Sues Over Failure to Safeguard PII HUB HOBBY CENTER: Toro Files ADA Suit in S.D. New York HUNGRY SQUIRREL: Batista Sues Over Blind-Inaccessible Website KAHALA FRANCHISING: Duncan Files Suit in E.D. New York KITCHEN STADIUM: Zarzuela Files ADA Suit in S.D. New York LOAN DEPOT: Sawicki Files TCPA Suit in S.D. Florida MDL 3052: 16 Suits Consolidated in Kia Hyundai Auto-security Row MDL 3053: Transfer of 17 Actions to Nelnet Data Breach Row Denied MDL 3054: Transfer of 2 Suits to Acupuncture Medicare Dispute Nixed META PIXEL: Simmons and Cohen Appointed as Interim Co-Lead Counsel NESTLE PURINA: Fontanez Sues Over Blind-Inaccessible Website PERGOLA 36: Bids to Compel Discovery in Smith Suit Granted in Part PET PRODUCT: Fontanez Sues Over Blind-Inaccessible Website PETER ANDREWS ONLINE: Tenzer-Fuchs Files ADA Suit in E.D. New York PREFERRED FINANCIAL: Bid to Certify Class in Jordan Suit Granted RESIDENTIAL CAPITAL: Court Rules on Judgment Bids in Drennen Suit SAMSUNG ELECTRONICS: Lewis Sues Over Misleading Advertising SHARP HEALTHCARE: Cousin Suit Removed to S.D. California SOHO ART MATERIAL: Sanchez Files ADA Suit in E.D. New York SYNERGY COMPANY: Pena Sues Over Blind-Inaccessible Website SYNGENTA CROP: Meadows Sues Over Unlawful Anticompetitive Scheme SYNGENTA CROP: R N D Hillside Sues Over Sherman Act Violation TATTOOED CHEF: Mihaylov Sues Over False and Misleading Statements TOYNK TOYS: Zarzuela Files ADA Suit in S.D. New York TRAVEL GUARD GROUP: Allen Sues Over Deceptive Online Marketing TROY A. SAMSON, SR: Bid for Sentence Reduction in Suit v. BOP Nixed TUYA INC: Lead Plaintiff and Counsel Named in Lian Securities Suit UBER TECHNOLOGIES: Bid to Compel Arbitration in Golightly Suit OK'd USV OPTICAL: Morgan Files Suit in D. New Jersey WEGMANS FOOD: Loeper Sues Over Unpaid Overtime Compensation WEST COAST DINER: Cal. App. Flips Dismissal of Flores Class Suit ********* 3M COMPANY: Denial of Bid to Toss Nuisance Abatement Claim Upheld ----------------------------------------------------------------- In the case, JARROD JOHNSON, Individually, and on Behalf of a Class of persons similarly situated, Plaintiff-Appellee v. 3M COMPANY, et al., Defendants. WATER, LIGHT, AND SINKING FUND COMMISSION OF CITY OF DALTON, Defendant-Appellant, Case No. 21-13663 (11th Cir.), the Court of Appeals for the Eleventh Circuit: a. denies Johnson's motion to dismiss Dalton Utilities' appeal for lack of jurisdiction; and b. affirms the district court's order denying Dalton Utilities' motion to dismiss Johnson's nuisance abatement claim on municipal immunity grounds. Dalton, Georgia, which has been called the "carpet capital of the world," boasts on its website that the city is "unrivaled in its production of carpet." Since more than ninety percent of the world's carpet comes from manufacturers in and around Dalton, it would be hard to argue with that. But the title and boast say nothing about any pollution resulting from all of that carpet production. The allegations in this lawsuit do. Johnson alleges that toxic chemicals used during the carpet manufacturing process have been allowed to seep into the rivers that supply drinking water to communities near Dalton, including Rome, Georgia, and the rest of Floyd County. On behalf of himself and a proposed class of water subscribers and ratepayers, he sued Dalton Utilities, a municipal corporation that operates Dalton's wastewater treatment system, for violating the Clean Water Act and for creating a public nuisance. His lawsuit claims that Dalton Utilities has caused the City of Rome's domestic water supply to be contaminated with dangerously high levels of toxic chemicals. Johnson, a Rome resident, filed the action in the Superior Court of Floyd County in 2019 on behalf of himself and a proposed class of water subscribers and ratepayers who are harmed by the contamination of their drinking water and the payment of surcharges. He named as Defendants various chemical suppliers and carpet manufacturers and alleged state law claims for tortious conduct, public nuisance, and nuisance abatement. The case was later removed to the Northern District of Georgia under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). Johnson brought Dalton Utilities into the case with his first amended complaint, which alleged a Clean Water Act claim against it. That first amended complaint also alleged a Clean Water Act claim against the Dalton/Whitfield Regional Solid Waste Authority and reorganized the state law tort claims, adding a negligence per se claim against the carpet manufacturers and chemical suppliers. Then Johnson amended his complaint a second time to correct misnomers and clarify which chemical supplier defendants are subject to his negligence per se claim. That was followed by a third amended complaint, which added some defendants, substituted others, and updated the Clean Water Act allegations. He also asserted in it public nuisance and nuisance abatement claims against Dalton Utilities. His third amended complaint generally alleges that the contamination of Rome's drinking water endangers his health, damages his property, interferes with his use and enjoyment of his property, and increases the price of his water. It seeks compensatory and punitive damages and injunctive relief. Dalton Utilities moved to dismiss the third amended complaint for failure to state a claim. Relevant to this appeal, the motion asserted that Dalton Utilities is entitled to municipal immunity from Johnson's nuisance abatement claim. Relying on the Georgia Supreme Court's Sustainable Coast decision, the motion contended that municipalities are immune from a nuisance claim unless the claim seeks monetary relief for the taking or damaging of private property, citing Ga. Dep't of Nat. Res. v. Ctr. for a Sustainable Coast, Inc., 755 S.E.2d 184 (Ga. 2014). Dalton Utilities asserted that Johnson's nuisance claim sought only injunctive relief for personal injury, and as a result municipal immunity applied to that claim against Dalton Utilities. After a hearing, the district court denied Dalton Utilities' motion to dismiss Johnson's nuisance abatement claim on municipal immunity grounds. Relying on Gatto v. City of Statesboro, 860 S.E.2d 713 (Ga. 2021), the court found that "as it stands now, Georgia law allows for a nuisance claim against a municipality for injury to property (or the use and enjoyment thereof) or personal injury." And the court expressed its view that Johnson had adequately alleged a nuisance claim against Dalton Utilities both for injury to property and for personal injury. This is Dalton Utilities' interlocutory appeal of the district court's order. While this appeal was pending, Johnson filed with Dalton Utilities' consent a fourth amended complaint in the district court. This latest amended complaint makes two changes to the claims against Dalton Utilities: it adds another Clean Water Act claim, and it withdraws the public nuisance claim that sought damages. But it leaves the nuisance abatement claim seeking injunctive relief intact, and that's the only claim at issue in this appeal. Johnson has moved to dismiss this appeal, contending that we lack jurisdiction because the district court's order denying Dalton Utilities' motion to dismiss the nuisance abatement claim is not a final order. As the case comes to the Eleventh Circuit, the question is whether Dalton Utilities is entitled to municipal immunity from Johnson's nuisance abatement (injunctive relief) claim. The Eleventh Circuit answers that it is not. The Eleventh Circuit holds that the key point is that Johnson's fourth amended complaint does not change the nuisance abatement allegations on which Dalton Utilities' municipal immunity defense is based. It leaves the status of this appeal of the immunity order unaffected. The notice of appeal divested the district court of jurisdiction over only one claim in a single count, and that is the nuisance abatement (injunction relief) claim against Dalton Utilities. Having determined that it has jurisdiction to decide Dalton Utilities' appeal, the Eleventh Circuit turns to the remaining issue: whether under Georgia law a municipality has immunity from a nuisance claim for personal injury. Relying on Sustainable Coast, Dalton Utilities contends that municipalities may be liable for only one kind of nuisance claim: the kind that involves a taking of private property. And according to Dalton Utilities, that's not the kind of nuisance claim Johnson has asserted. The Eleventh Circuit holds that municipal immunity does not shield Dalton Utilities from Johnson's nuisance abatement claim. As the Georgia Supreme Court stressed in Gatto, the "nuisance exception" is not an exception at all but instead a "doctrine" that is still used to "evaluate whether municipal liability may be imposed in a given case." It is bound to follow, and does follow, the Georgia Supreme Court's holding in Gatto about Georgia law on municipal immunity. The Georgia Supreme Court's latest word in Gatto controls the Eleventh Circuit when it comes to Georgia law. In view of the foregoing, the Eleventh Circuit denies Johnson's motion to dismiss Dalton Utilities' appeal for lack of jurisdiction. It affirms the district court's order denying Dalton Utilities' motion to dismiss Johnson's nuisance abatement claim on municipal immunity grounds. A full-text copy of the Court's Dec. 21, 2022 Order is available at https://tinyurl.com/55axkyp2 from Leagle.com. ANHEUSER-BUSCH LLC: Denial of Dhillon's Bid for Class Cert. Flipped ------------------------------------------------------------------- In the case, MANMOHAN DHILLON, et al., Plaintiffs and Appellants v. ANHEUSER-BUSCH, LLC, et al., Defendants and Respondents, Case No. F082763 (Cal. App.), the Court of Appeals of California for the Fifth District, reversed the trial court's second denial of the Plaintiffs' motion for class certification. Five named Plaintiffs filed the action on behalf of themselves and a class of persons similarly situated. The operative pleading, the second amended complaint, alleges the following: the Plaintiffs and the class they seek to represent own and operate retail convenience stores in Fresno and Madera Counties; they sell beer manufactured by Anheuser-Busch and distributed by Donaghy Sales, LLC. California law requires wholesalers of beer to sell to retailers on a nondiscriminatory basis and to charge only the prices they have filed with the Department of Alcoholic Beverage Control (ABC). A wholesaler may not charge a different price to a special customer. The wholesaler's prices may be modified by filing a new or amended schedule of prices with the ABC. The Plaintiffs allege that, in violation of the wholesale beer pricing and unfair competition laws, during the class period, Donaghy sold beer to certain favored retailers at effective wholesale prices that were lower than the prices it filed with the ABC. It did this by providing the favored retailers with disproportionate numbers and amounts of consumer coupons for discounts off the retail price of beer. Instead of providing the coupons to consumers, however, the favored retailers redeemed the coupons themselves, not related to a particular sale of beer to a consumer as required by the coupons. The favored retailers redeemed the coupons by presenting them to Donaghy for credit against a subsequent purchase of beer, by redeeming them through a third party redemption center, or, if in the form of a check, by depositing the check in the retailer's bank account. As a result of this scheme, favored retailers who received and redeemed coupons effectively paid wholesale prices below the prices filed with the ABC and below the prices paid by disfavored retailers, who are the members of the proposed class. The Plaintiffs allege Vinay Vohra and Vikram Vohra, as well as others to be identified later, were favored retailers and co-conspirators with Anheuser-Busch and Donaghy. The second amended complaint contains four causes of action: (1) unfair competition by means of unlawful business practices (Bus. & Prof. Code, Section 17200 et seq.); (2) unfair competition by means of unfair business practices, including allegations of incipient violation of antitrust laws (Section 17200 et seq.); (3) secret payment or allowance of rebates (Section 17045); and (4) soliciting or participating in the secret payment or allowance of rebates in violation of section 17045 (Section 17047, 17048). The Plaintiffs filed a motion for class certification, redefining the class and adding Hardeep Singh as an additional favored retailer and alleged coconspirator; the class definition expressly excluded the favored retailers from the class. The Plaintiffs appeal from the second denial of their motion for class certification. Initially, their motion was denied by the trial court on the ground the proposed class was not ascertainable. The Plaintiffs appealed that order, and the Court of Appeals affirmed. The Supreme Court granted review, then transferred the matter back to the Court of Appeals for reconsideration in light of its decision in Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955. Applying the rules governing ascertainability, as clarified by the Supreme Court in that case, it concluded that class certification was not properly denied on that basis. The Court of Appeals reversed the trial court's order and remanded for a redetermination of the class certification motion. The trial court again denied the motion. It concluded the Plaintiffs met their burden of demonstrating ascertainability and numerosity but failed to demonstrate that common issues of law or fact predominate, that the named Plaintiffs have claims typical of the claims of the proposed class, that they can adequately represent the proposed class, and that a class action would provide a superior procedure for litigating the case. The Plaintiffs again appeal. They contend the trial court misapprehended the theory of their case and misapplied the law governing class certification. The Court of Appeals explains that Code of Civil Procedure section 382 authorizes class actions when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. The trial court found the Plaintiffs met their burden of demonstrating the putative class is ascertainable and sufficiently numerous to support class certification. It concluded the Plaintiffs did not meet their burden of establishing a well-defined community of interest. The trial court observed that the second amended complaint alleges the putative class suffered at least two types of harm: (1) overcharges for the purchase of beer from Donaghy because the putative class allegedly paid an effective wholesale price higher than the effective wholesale price paid by the favored retailers, who were given an illegal secret rebate; and (2) damages from an illegal price-fixing scheme in which defendants coerced the putative class members to price the beer they sold above, or not below, the prices charged by the favored retailers, which allowed the favored retailers to compete unfairly and illegally with the putative class members by allowing the favored retailers to charge retail prices below those of the putative class members. The Court of Appeals examines each cause of action separately and attempts to relate the trial court's conclusions to the cause or causes of action that include the element to which the conclusion is relevant. The Plaintiffs' first and second causes of action allege violations of California's unfair competition law (UCL) (Section 17200 et seq.). In their motion, the Plaintiffs argued that the central issues presented by their claims can be determined on a class-wide basis. The trial court concluded that, to the extent the Plaintiffs and the putative class are seeking recovery of overcharges for the purchase of beer products from Donaghy, DeMario's expert opinion satisfied the Plaintiffs' burden "of showing that there are common issues of law and fact regarding the injuries suffered by the proposed class." As alleged in this case, a violation of section 17045 requires a (1) secret (2) payment or allowance of rebates that (3) injures a competitor and (4) tends to destroy competition. The Court of Appeals states that a violation of this section requires proof of elements beyond those required for a violation of sections 25000, 25001, and 25004. It finds that the trial court did not analyze the issues raised by the section 17045 claim along with those raised by sections 25000, 25001, and 25004, or determine whether, as to the first cause of action as a whole, common issues predominate. Consequently, the trial court's analysis of the first cause of action to determine whether common issues of law or fact predominate is incomplete. It did not identify the issues raised by all the elements of the cause of action, consider all the proper criteria related to those issues, or reach a conclusion on the proper legal question: predominance of common issues. The second cause of action of the Plaintiffs' second amended complaint alleges that the same couponing conduct alleged in the first cause of action also constitutes a violation of the "unfair" business practices prong of the UCL. They argue that with the exception of the element of harm to competition, the elements of the second cause of action are substantially similar to the elements of the first cause of action. The Court of Appeals finds that the Plaintiffs' second cause of action alleges that price fixing at the retail level and selective discounting of wholesale prices through the use of coupons threatened an incipient violation of antitrust law. The trial court did not consider whether the Plaintiffs made a sufficient showing, through Zona's declaration or other evidence, that these allegations raise common issues regarding a significant threat to competition or a threat of an incipient antitrust violation that could be addressed on a class-wide basis. It also failed to weigh the common issues that may be jointly tried against those issues that require individual adjudication to determine which predominate. The Court of Appeals concludes the trial court applied an incorrect standard, requiring a showing of actual harm to competition, rather than presentation of evidence that a significant threat to competition or a threat of an incipient antitrust violation could be demonstrated on a class-wide basis. It also failed to weigh the common issues against the issues requiring separate adjudication to determine whether the common issues predominate. Thus, the decision regarding the second cause of action rests on improper criteria and erroneous legal assumptions. The Plaintiffs' third cause of action alleges a violation of section 17045, which requires a (1) secret (2) payment or allowance of rebates that (3) injures a competitor and (4) tends to destroy competition. The fourth cause of action alleges violation of sections 17047 and 17048, which make it unlawful for any manufacturer or wholesaler to solicit or participate in a violation of section 17045 or to collude with another in a violation of section 17045. The Plaintiffs broadly claim these causes of action present common questions regarding whether the Defendants violated these sections by "not filing and posting, and selectively implementing, coupon rebates." They contend the trial court abused its discretion by failing to address and analyze these causes of action in its ruling. The Court of Appeals opines that the trial court did not apply the proper criteria in its analysis of the element of damage to competition. Consequently, to the extent the trial court intended to deny certification of these causes of action based on the Plaintiffs' failure to demonstrate that damage to competition could be proven on a class-wide basis, that denial would be based on improper criteria and erroneous legal assumptions. Additionally, the trial court did not analyze all of the elements of these causes of action, identify the common or individual issues raised by them, or determine whether plaintiffs showed that common issues predominate. The trial court also concluded the evidence did not support a finding that the named Plaintiffs had claims typical of the class. However, the Court of Appeals finds that the trial court misconstrued the nature of the Plaintiffs' claims and misapplied the standards for determining the typicality of a class representative's claims. A class representative is not required to have identical interests with all of the class members. In the case, the class representatives claim the same type of injury, arising from the same conduct by the Defendants, as the putative class. Thus, the trial court erred in determining that the named Plaintiffs do not have claims typical of the class. Because the trial court did not separately consider whether the named Plaintiffs would adequately represent the class and did not analyze potentially conflicting or antagonistic interests in making that determination, the Court of Appeals also concludes that the trial court's analysis of the adequacy of representation is incomplete. In determining the adequacy of the named plaintiffs' representation of the class as a whole, however, it appears the status of the named plaintiffs, who in this case all appear to have redeemed coupons, and the potential for a conflict of interest caused by the difference in status, are valid considerations. Finally, the trial court did not consider the appropriate factors in determining whether proceeding by class action would be superior to proceeding by individual actions. It did not analyze, for any cause of action, whether the Plaintiffs demonstrated that the type of harm or threatened harm to competition required for each cause of action can be proven on a class-wide basis by common evidence. In sum, the Court of Appeals concludes the trial court abused its discretion by denying the Plaintiffs' motion for class certification. Accordingly, it reverses and remands to the trial court for further consideration of the motion for class certification consistent with the views expressed in its Opinion. The Plaintiffs are awarded their costs on appeal. A full-text copy of the Court's Dec. 21, 2022 Opinion is available at https://tinyurl.com/y27wpc8h from Leagle.com. Gustafson Gluek, Dennis Stewart -- dstewart@gustafsongluek.com -- Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Michelle J. Looby -- mlooby@gustafsongluek.com -- Joshua J. Rissman -- jrissman@gustafsongluek.com ; Coleman & Horowitt, Darryl J. Horowitt , Sherrie M. Flynn -- sflynn@ch-law.com; Freedman Boyd Hollander Goldberg Urias & Ward, Joseph Goldberg and Frank T. Davis, Jr., for the Plaintiffs and Appellants. Wanger Jones Helsley, Oliver W. Wanger -- owanger@wjhattorneys.com -- Patrick D. Toole -- ptoole@wjhattorneys.com; Cadwalader, Wickersham & Taft, Brian D. Wallach and Gregory W. Langsdale for Defendant and Respondent Anheuser-Busch, LLC. Chielpegian Cobb -- lee@chielpegian.com -- and Mark E. Chielpegian -- mark@chielpegian.com -- for Defendant and Respondent Donaghy Sales, LLC. AT HOME: Sadullaev Appeals Wage Suit Ruling to N.Y. Appellate Div. ------------------------------------------------------------------ ISLOM SADULLAEV, et al. are taking an appeal from a court order in the lawsuit entitled Islom Sadullaev, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. At Home Solutions, LLC, Defendant, Case No. 154673/2017 (N.Y. Sup. Ct., May 19, 2017). At Home Solutions, LLC provides nursing and home health aide services at the residences of its clients. As previously reported in the Class Action Reporter, Mr. Sadullaev brought this complaint against the Defendant for failure to provide employees the proper hourly compensation for all hours worked, overtime compensation for all hours worked in excess of 40 hours in any given week, and spread of hours pay. The appellate case is captioned Islom Sadullaev, et al. v. At Home Solutions, LLC, Case No. 22-05712, in the First Judicial Department of New York Appellate Division, filed on December 21, 2022. [BN] AVANTI INSTALL: Bainbridge Files Suit in Cal. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against Avanti Install California, LLC, et al. The case is styled as Charles Bainbridge, and on behalf of others members of the general public similarly situated v. Avanti Install California, LLC, Avanti Windows & Doors, LLC, Does 1-10, Case No. 34-2022-00331897-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Dec. 23, 2022). The case type is stated as "Other Employment - Civil Unlimited." Avanti Industries -- https://www.avantiwindow.com/ -- opened in Glendale, Arizona as a manufacturer, distributor and installation company of vinyl windows and patio doors.[BN] The Plaintiff is represented by: Robert J. Drexler, Jr., Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 BANK OF AMERICA: Nelson Sues Over Failure to Provide Notice ----------------------------------------------------------- Gary Nelson, Kayleigh Potter, individually and on behalf of all others similarly situated v. BANK OF AMERICA, NATIONAL ASSOCIATION, Case No. 221202205 (Pa. Ct. of Common Pleas, Philadelphia Cty., Dec. 23, 2022), is brought against an auto lender to redress systemic violations of Pennsylvania's Uniform Commercial Code ("UCC") as a result of the Defendant's failure to provide proper notice of repossession of consumer goods. The UCC requires secured parties who utilize self-help repossession to provide consumers with proper notice when repossessing and reselling a financed vehicle. When the Bank believes that a consumer has defaulted on a motor vehicle installment sale contract secured by a vehicle, it repossesses and then makes preparations to auction the vehicle. In the course of so doing, the Bank failed to provide the Plaintiffs and the class with the proper notice of repossession and disposition of collateral required by Pennsylvania Law, including Pennsylvania's Uniform Commercial Code ("UCC"). Because self-help repossession is effected without judicial authorization or oversight, the UCC requires secured creditors like the Bank to adhere strictly to the Code's notice requirements. Failure to provide proper notice of repossession of consumer goods is a violation of the Code that yields statutory minimum damages without evidence of harm for the Plaintiffs and the class they seek to represent, says the complaint. The Plaintiffs' automobile was repossessed or ordered that it be repossessed by the Defendant. Bank of America, National Association regularly finances the purchase of automobiles for consumer use in Pennsylvania.[BN] The Plaintiffs are represented by: Cary L. Flitter, Esq. Andrew M. Milz, Esq. Jody Thomas Lopez-Jacobs, Esq. FLITTER MILZ, P.C. 450 N. Narberth Avenue, Suite 101 Narberth, PA 19072 Phone: (610) 822-0782 BRIAN SAHD: Muniz Sues to Recover Unpaid Overtime Wages ------------------------------------------------------- Raymundo Muniz, on behalf of himself and others similarly situated v. Brian Sahd, and Banana Kelly Community Improvement Association, Inc., Case No. 1:22-cv-10876 (S.D.N.Y., Dec. 26, 2022), is brought to recover unpaid overtime wages, liquidated and statutory damages, pre- and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act, and the New York State Labor Law their supporting New York State Department of Labor regulations. The Plaintiff was required to work in excess of 40 hours per week, but never received an overtime premium of one and one-half times his regular rate of pay for those hours. The Defendants never granted the Plaintiff with meal breaks or rest periods of any length. The Plaintiff was not required to keep track of Plaintiff's time, nor to the Plaintiff's knowledge, did the Defendants utilize any time tracking device, such as sign in sheets or punch cards, that accurately reflected Plaintiff's actual hours worked. the Defendants did not pay Plaintiff at the rate of one and one-half times their hourly wage rate for hours worked in excess of forty per workweek, says the complaint. The Plaintiff was employed as a superintendent at the Defendants' residential Property. The Defendants own, operate and/or control the property, located in Bronx, New York.[BN] The Plaintiff is represented by: Jason Mizrahi, Esq. Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4700 New York, NY 10165 Phone: (212) 792-0046 Email: Jason@levinepstein.com CARDONE CAPITAL: 9th Cir. Affirms in Part Dismissal of Pino Claims ------------------------------------------------------------------ In the case, LUIS PINO, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. CARDONE CAPITAL, LLC; GRANT CARDONE; CARDONE EQUITY FUND V, LLC; CARDONE EQUITY FUND VI, LLC, Defendants-Appellees, Case No. 21-55564 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms in part and reverses in part the district court's dismissal of Pino's claims. Pino filed suit against the Defendants-Appellees, alleging violations of the Securities Act of 1933 based on material misstatements or omissions in certain real estate investment offering materials. Specifically, Pino brought claims under Section 12(a)(2) of the Securities Act against all the Defendants, and a claim pursuant to Section 15 of the Securities Act against Cardone and Cardone Capital. Cardone founded Cardone Capital in 2017, and is its CEO and sole Manager. Cardone Capital is a real estate property management company that invests in property by pooling money from many other investors. It manages Fund V and Fund VI, which invest in real estate assets throughout the United States. Funds V and VI (the "Funds") are categorized as emerging growth companies under the 2015 U.S. JOBS Act, a law that reduces reporting and accounting requirements for emerging companies, and that enables the sale of securities using crowdfunding techniques. Investments in Funds V and VI were subject to Regulation A, which exempts offerings from registration with the Securities and Exchange Commission, but are subject to certain requirements. Fund V began receiving subscriptions on Dec. 12, 2018, and raised $50 million as of Sept. 20, 2019. The First Amended Complaint alleges that when Fund V closed, Cardone posted on the Cardone Capital Instagram account that Fund V is "the first Regulation A of its kind to raise $50 Million in crowdfunding using social media, and that by accessing social media, I am offering investment opportunities to the everyday investor, like you!" Fund VI began receiving subscriptions on Oct. 16, 2019, and raised $50 million as of June 25, 2020. Pino alleges he invested a total of $10,000 in Funds V and VI. Pino further alleges that he invested in Fund V two days after attending a marketing presentation hosted by Cardone in Anaheim, California, titled the "Breakthrough Wealth Summit." In 2020, Pino filed this putative class action, asserting claims under Section 12(a)(2) of the Securities Act against all the Defendants, and a claim pursuant to Section 15 of the Securities Act against Cardone and Cardone Capital. In the FAC, Pino alleges that in soliciting investments in Funds V and VI, the Defendants made untrue statements of material fact or concealed or failed to disclose material facts in Instagram posts and a YouTube video posted between Feb. 5, 2019, and Dec. 24, 2019. Pino alleges that these statements were materially misleading. Further, he alleges that none of the communications contained cautionary language either indicating that the promises were speculative, or identifying the risk associated with investing in Funds V and V, but instead contained only a generic legend required under SEC Rule 255. The Defendants moved to dismiss the FAC for failure to state a claim under Rule 12(b)(6). The district court granted the motion, concluding in part that Cardone and Cardone Capital did not qualify as statutory sellers, warranting dismissal of the Section 12(a)(2) and Section 15 claims against them. Pino appeals, arguing that the district court erred in holding that Cardone and Cardone Capital are not "sellers" under Section 12(a)(2). The Ninth Circuit concludes that Section 12 contains no requirement that a solicitation be directed or targeted to a particular plaintiff, and accordingly, joins the Eleventh Circuit in holding that a person can solicit a purchase, within the meaning of the Securities Act, by promoting the sale of a security in a mass communication. In the present case, the FAC sufficiently alleges that Cardone and Cardone Capital were engaged in solicitation of investments in Funds V and VI. The FAC contends that Cardone and Cardone Capital engaged in extensive solicitation efforts, including through the "Breakthrough Wealth Summit," a conference hosted by Cardone, and the Defendants' extensive social media posts. Moreover, the FAC alleges that both Cardone and Cardone Capital had a financial interest in the sale of the securities; the Fund V and VI offering statements describe compensation tethered to contributed capital and distributions received by the Funds' manager, Cardone Capital, which is controlled by Cardone. To state a claim under Section 12(a)(2), Pino need not have alleged that he specifically relied on any of the alleged misstatements identified in the FAC. Because the district court erred in dismissing Pino's claim against Cardone and Cardone Capital under Section 12(a)(2), it also erred in dismissing Pino's Section 15 claim for lack of a predicate primary violation of the Securities Act. For the foregoing reasons and those set forth in its accompanying memorandum disposition, the Ninth Circuit affirms in part and reverses in part the district court's dismissal of Pino's claims under Section 12(a)(2) and Section 15. A full-text copy of the Court's Dec. 21, 2022 Opinion is available at https://tinyurl.com/yhy4n99w from Leagle.com. Raj Mathur -- rmathur@susmangodfrey.com -- (argued), Susman Godfrey LLP, New York, New York; Marc M. Seltzer -- mseltzer@susmangodfrey.com -- Steven G. Sklaver -- ssklaver@susmangodfrey.com -- and Krysta K. Pachman -- kpachman@susmangodfrey.com -- Susman Godfrey LLP, Los Angeles, California, for the Plaintiff-Appellant. Anne M. Voigts -- avoigts@kslaw.com -- (argued), King & Spalding LLP, Palo Alto, California; David P. Mattern -- dmattern@kslaw.com -- King & Spalding LLP, Washington, D.C.; Joseph N. Akrotirianakis -- jakro@kslaw.com -- King & Spalding LLP, Los Angeles, California; Lisa R. Bugni -- lbugni@kslaw.com -- King & Spalding LLP, San Francisco, California, for the Defendants-Appellees. CHRISTUS HEALTH: Rodriguez Sues Over Failure to Secure PII ---------------------------------------------------------- Hesiquio Rodriguez, on behalf of herself and all others similarly situated v. CHRISTUS HEALTH and CHRISTUS SPOHN HEALTH SYSTEM CORPORATION, Case No. 3:22-cv-02899-M (N.D. Tex., Dec. 23, 2022), is brought against the Defendants for their failure to properly secure and safeguard personally identifiable information including, but not limited to, Plaintiff's and Class Members' names, addresses, dates of birth, medical record numbers, Social Security numbers, health insurance information, and some limited clinical data (collectively, "Private Information" or "PII and PHI"). A hacker group known as Avoslocker has claimed credit for the cybersecurity attack, demanded a ransom, and posted a portion of it on the dark web. Thus, Plaintiff's and Class Members' information is already being misused by cybercriminals. During the course of their business operations, Defendants acquired, collected, utilized, and derived a benefit from Plaintiff's and Class Members' Private Information. Therefore, Defendants owed and otherwise assumed statutory, regulatory, contractual, and common law duties and obligations, including to keep Plaintiff's and Class Members' PII confidential, safe, secure, and protected from the type of unauthorized access, disclosure, and theft that occurred in the Data Breach. Furthermore, Defendants through their privacy policy, both expressly and impliedly understood their obligations and promised to safeguard Plaintiff's and Class Members' Private Information. Plaintiff and Class Members relied on these express and implied promises when seeking out and paying for Defendants' services. But for this mutual understanding, Plaintiff and Class Members would not have provided Defendants with their Private Information. Defendants, however, did not meet these reasonable expectations, causing Plaintiff and Class Members to suffer injury. Defendants, however, did not meet these reasonable expectations, causing Plaintiff and Class Members to suffer injury. Despite learning of the Data Breach on May 4, 2022, Defendants did not begin sending notices of the Data Breach (the "Notice of Data Breach Letter") until July 1, 2022. Based on the Notice of Data Breach Letter, Defendants admit that Plaintiff's and Class Members' Private Information was unlawfully accessed and exfiltrated. Moreover, Plaintiff's and Class Members' Private Information was then posted on the dark web, meaning their Private Information is exposed and has or likely will be used by cybercriminals for unlawful purposes. The Plaintiff brings this class action lawsuit on behalf of those similarly situated to address Defendants' inadequate safeguarding of Class Members' Private Information that it collected and maintained, and for failing to provide adequate notice to Plaintiff and other Class Members that their information had been subject to the unauthorized access of an unknown third party and precisely what specific type of information was accessed, says the complaint. The Plaintiff received a letter dated November 11, 2022, from Defendant Christus Spohn notifying the Plaintiff that its network had been accessed and the Plaintiff's Private Information may have been involved in the Data Breach. The Defendants are non-profit health systems, which operates a network of hospitals and medical centers, throughout Texas and in other states.[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Phone: 214-744-3000 Facsimile: 214-744-3015 Email: jkendall@kendalllawgroup.com - and - Joseph M. Lyon, Esq. THE LYON FIRM, LLC 2754 Erie Ave. Cincinnati, OH 45208 Phone: (513) 381-2333 Fax: (513) 766-9011 Email: jlyon@thelyonfirm.com - and - Bryan L. Bleichner, Esq. CHESTNUT CAMBRONNE PA 100 Washington Avenue South, Suite 1700 Minneapolis, MN 55401 Phone: (612) 339-7300 Fax: (612) 336-2940 Email: bbleichner@chestnutcambronne.com DAKOTA PLAINS: $5.7M in Attys.' Fees, Costs Awarded in Grauber Suit ------------------------------------------------------------------- In the case, JON D. GRUBER, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. RYAN R. GILBERTSON, ET AL., Defendants, Case No. 16-cv-9727 (JSR) (S.D.N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York: a. directs that the judgment against Reger be offset for both Gilbertson's 50% share of responsibility and the amount of the officers and directors ("O&D") settlement; b. grants final approval to both the O&D and Gilbertson settlements, and also grants the Plaintiff's counsel's application for an award of 1/3 the D& O settlement as fees, and for reimbursement of $1,062,373.62 in out-of-pocket costs and expenses. After six years, one pandemic, two judges, two proposed class settlements, and one jury trial, the case finally nears completion. What remains are various damages issues pertaining to non-settling defendant Michael Reger, whom a jury found liable for securities fraud following a seven-day trial; the final approval of two proposed class action settlements, including the award of attorneys' fees; and, ultimately, the distribution of damages to class members. Judge Rakoff's Opinion and Order addresses these remaining issues. First, Judge Rakoff examines the damages award against Reger. A jury found Reger liable for intentionally defrauding investors in Dakota Plains Holdings, Inc. by concealing his substantial ownership of the company. Prior to trial, Reger and the Plaintiffs agreed that any apportionment of responsibility required under the Private Securities Litigation Reform Act ("PSLRA") would be made by the Court, rather than by the jury. Certain other issues regarding how to calculate damages and whether to award prejudgment interest also remain open. The most significant remaining damages issue is whether the PSRLA requires that the judgment against Reger be offset to take into account the percentage of responsibility of his co-defendant, Gilbertson, with whom Reger founded Dakota Plains and who earlier in 2022 reached a proposed cashless settlement with the plaintiff class in exchange for his testimony against Reger. The Plaintiffs agree that the judgment against Reger should be reduced by at least the amount of the $13.95 million settlement they reached with Dakota Plains former officers and directors (the "O&D defendants"). But as to Gilbertson, who settled for $0, the Plaintiffs dispute the need for any offset. First, they contend that, when read in its statutory context, the settlement offset provision does not actually require offset where a defendant knowingly violated the securities laws. Second, they argue that Reger waived any right to an offset. Judge Rakoff holds that both arguments fail because the statute plainly requires an offset for Gilbertson's percentage of responsibility and Reger did not waive his statutory entitlement to a judgment offset. For these reasons, he easily concludes that Reger may claim the full benefit of the settlement offset provision: an offset for both the $13.95 million O&D settlement and for Gilbertson's share of responsibility. And although Judge Rakoff grants final approval to both the O&D and Gilbertson settlements, he does so only after striking the "unless" clause from the settlements. Regarding the apportionment of responsibility under the PSLRA, Judge Rakoff holds that the only person whose percentage of responsibility the Court must calculate is Gilbertson and Gilbertson's personal share of responsibility for the Plaintiffs' loss is 50%. He sees no basis upon which to assign Sankovitz responsibility for the Plaintiffs' loss and there is clear evidence that Gilberston knowingly violated the securities laws. As to how the Claims Administrator should calculate class members' damages, the parties disagree on two issues regarding the calculation of damages: how to match class members' share purchases to sales, and whether and how the PSLRA's "bounce back" provision applies. Since the ordinary rationale against a FIFO approach does not apply and since Reger himself concedes that the selection of FIFO versus LIFO matters far less than a requirement that class members' losses and gains be aggregated across all transactions, administrative convenience counsels in favor of applying a consistent FIFO approach to both the D&O settlement and the judgment against Reger. Moreover, the Plaintiffs are right that the relevant date for purpose of the PSLRA's look back period is the end of the class period, when all the risks concealed by Reger's fraud had been fully exposed and no fraudulent inflation was left in the stock. At that point, Dakota Plains' stock price was down to $0.03, and it never rebounded over the next 90 days. As such, the PSLRA's bounce back provision has no relevance here for the simple reason that Dakota Plains' stock never bounced back. The Plaintiffs finally ask the Court to award prejudgment interest -- and to do so at exceptionally high rates. Judge Rakoff concludes that neither "fairness and the relative equities" or the remedial purpose of the securities laws support an award of prejudgment interest in this case. Here, much of the relevant fraudulent conduct was committed by Gilbertson, not Reger, and Reger has already disgorged any Dakota Plains-related profits to the Securities and Exchange Commission in a separate proceeding. Given those facts, prejudgment interest is not necessary to disincentivize similar conduct, or to ensure that Reger does not reap a windfall by being allowed to profit at investors' expense from an essentially zero-interest loan. Accordingly, JUdge Rakoff declines to award prejudgment interest. Reger finally contends that "substantial work remains" because the Plaintiff must provide actual proposals as to its method for calculating damages as well as transparency as to how it is applying that method to individual claimants, and Reger must have the opportunity to object on both fronts. Judge Rakoff holds that the Plaintiffs adequately proved reliance on a classwide basis against Reger at trial, according to jury instructions to which Reger consented. And, notwithstanding close to two years of time to take fact discovery, Reger has failed to present any evidence that any individual class member was in fact aware of the actual omission plaintiffs proved at trial. Absent some more particular showing that the class-wide proof of reliance at trial was actually insufficient as to particular class members, Judge Rakoff will not reopen discovery and approve further relitigation of a previously settled issue. Second, Judge Rakoff examines that class settlements and award of attorneys' fees. He grants final approval to both the D&O settlement and the Gilbertson settlement as embodied in the stipulations of settlement previously filed with the Court, except that he strikes from both settlement agreements the clause "unless any such person is found to have knowingly violated the securities laws, in which case such judgment reduction provisions will not apply." Likewise, Judge Rakoff approves the application by the Plaintiffs' counsel (which includes Class Counsel, Cera LLP, together with MoloLamken LLP, and Abraham Fruchter & Twersky, LLP) for fees amounting to one-third of the D&O settlement fund, or $4,649,535, plus interest thereon since deposit, as well as for reimbursement of $1,062,373.62 in out-of-pocket costs and expenses incurred in the prosecution of this action through May 31, 2022. He finds the attorneys' fee award and expense reimbursement are justified. For the foregoing reasons, Judge Rakoff directs that the judgment against Reger be offset for both Gilbertson's 50% share of responsibility and the amount of the O&D settlement. The claims administrator should calculate class members' damages and evaluate claims against Reger in accordance with the Opinion. Judge Rakoff grants final approval to both the O&D and Gilbertson settlements, and also grants the Plaintiff's counsel's application for an award of 1/3 the D& O settlement as fees, and for reimbursement of $1,062,373.62 in out-of-pocket costs and expenses. A full-text copy of the Court's Dec. 21, 2022 Opinion & Order is available at https://tinyurl.com/37atbup4 from Leagle.com. DAMHORST TOYS: Toro Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Damhorst Toys and Puzzles, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Damhorst Toys and Puzzles, Inc., Case No. 1:22-cv-10879 (S.D.N.Y., Dec. 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Damhorst Toys and Puzzles, Inc. -- https://www.damhorsttoys.com/ -- make personalized wooden baby gifts and toys.[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 DIAGEO NORTH AMERICA: Mao Sues Over False Labeling and Advertising ------------------------------------------------------------------ Scott Mao, individually and on behalf of all others similarly situated v. Diageo North America, Inc., Case No. 1:22-cv-10847 (S.D. Ill., Dec. 23, 2022), is brought seeking damages and an injunction to stop the Defendant's false and misleading advertising practices with regard to its "Ranch Water" "Made With 100% Agave & Natural Lime Juice" under the Lone River brand ("Product"). The other relevant representations includes images of Texas, a "longhorn," the agave plant, the source crop for tequila, and two squiggly lines, an allusion to the "worm" people associate with tequila, "Original," "Hard Seltzer," "4 % Alc. Vol." ("ABV" or alcohol by volume) and "Roots In Far West Texas." Though the Product contains carbonated water and lime, the labeling misleads consumers because it lacks tequila and adds a sweetener in the form of agave nectar, shown through the small print on the back of the can and case. First, "Hard Seltzer" beneath "Ranch Water" contributes to the expectation the Product will contain tequila because "hard" in the context of alcohol refers to distilled spirits or "hard liquor." The one exception applies to the fermented apple beverage of "hard cider." Various theories exist about how the term "hard" became associated with cider. One contends that "hard" was implicit in the Middle English definition of cider as a "strong drink." Another posits that "hard" distinguished fermented apple juice with alcohol from non-fermented and non-alcoholic fresh pressed apple juice. Second, consumers understand the bold faced statement of "Original" consistent with its dictionary definition, as the source from which a copy is made or earliest form of something. In the context of an alcoholic beverage, "Ranch Water – Original" tells consumers the Product's characteristics will be the same as when this drink was first sloshed into existence in ice-filled thermoses on the West Texas plains, containing tequila and lacking any sweeteners. Third, Defendant "does nothing to dissuade the consumer from assuming that there's actual tequila in their drink, and actually appears to be reinforcing the deception with their choices in marketing language" by describing it as "Made With 100% Agave." Fourth, companies "take advantage of the consumer's lack of knowledge about both 'ranch water' and hard seltzer itself to sell them a drink full of fake tequila flavors." The Product "can't genuinely reproduce the actual flavor profile of ranch water, because 'alcohol from sugar' is just neutrally flavored booze that doesn't taste like tequila." Nor does agave nectar taste like tequila, even though both are from the agave plant. The Product contains other representations and omissions which are false and misleading. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than $12.99 for a six-pack of 12 oz cans, excluding tax and sales, says the complaint. The Plaintiff purchased the Product at locations including but not necessarily limited to Jewel-Osco, at its Beer, Wine & Spirit annex. The Defendant is one of the world's largest sellers of distilled spirits under dozens of the most highly-acclaimed and popular brands.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Phone: (516) 268-7080 Email: spencer@spencersheehan.com DUDE PRODUCTS: Partial Judgment on Pleadings in Harleysville Okayed ------------------------------------------------------------------- In the case, HARLEYSVILLE PREFERRED INS. CO. and HARLEYSVILLE LAKE STATES INS. CO., Plaintiffs v. DUDE PRODUCTS, INC., ARLENE WYATT; DEXTER COBB; and JOSEFINA DARNELL, Defendants, Case No. 21 C 5249 (N.D. Ill.), Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois, Eastern Division: a. grants Dude Products' motion for partial judgment on the pleadings; and b. denies Harleysville's cross-motion for judgment on the pleadings. Harleysville Preferred and Harleysville Lake States seek a declaratory judgment that they have no duty to defend or indemnify Dude Products in connection with a pending class action lawsuit. Dude Products moved for partial judgment on the pleadings on the duty to defend claim, and Harleysville moved for judgment on the pleadings on both the duty to defend and the duty to indemnify claims. Harleysville is an insurance company organized under the laws of Ohio with authorization to issue insurance policies in Illinois. Dude Products is a corporation organized under the laws of Delaware with its principal place of business in Chicago, Illinois. It marketed and sold a line of "flushable" toilet paper alternatives known as Dude Wipes. Arlene Wyant is a citizen of New York, Dexter Cobb is a citizen of California, and Josefina Darnell is a citizen of Illinois. Wyant, Cobb, and Darnell purchased Dude Wipes in 2020 or 2021. Wyant and Cobb sued Dude Products in February 2021 on behalf of a putative class. They added Darnell as a named plaintiff in May 2021, and they allege that Dude Products falsely markets Dude Wipes as "flushable" even though the product does not break apart or disperse in a reasonable period of time after flushing and result in clogs or other sewage damage. They also claim that they "suffered injury in fact and lost money or property" and request relief against Dude Products. Harleysville issued Dude Products two separate insurance policies covering the period from April 21, 2014 to April 21, 2015: a commercial general liability policy and a commercial umbrella liability policy. The terms of the two policies are identical as they relate to the present dispute. They provide that Harleysville will pay those sums that the insured becomes legally obligated to pay as damages because of property damage. Both parties have limited their arguments to alleged "property damage" under a term that provides coverage for property damage caused by an "occurrence" during the policy period. The insurance policies define an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policies contain exclusions for "expected or intended injury," that is, property damage that is expected or intended from the standpoint of the insured. They also exclude "damage to impaired property or property not physically injured" that arises from a "defect, deficiency, inadequacy, or dangerous condition" in the insured's product. In its complaint in the present case, Harleysville seeks a declaratory judgment stating that it has no duty to defend or indemnify Dude Products under either the CGL or the umbrella policies. It has moved for judgment on the pleadings, contending that (1) the harm alleged in the Wyant action did not arise from an "occurrence"; (2) the "expected and intended injury" and "impaired property" exclusions preclude coverage for the Wyant action; and (3) the Wyant action arises out of conduct that occurred after Harleysville's policies expired. Dude Products counterclaimed for a declaratory judgment to the effect that Harleysville Preferred has a duty to defend and both insurers have a duty to indemnify. It also argues that Harleysville Preferred breached its obligations under the CGL policy by failing to provide Dude Products with a defense and failing to reimburse it for its defense of the Wyant action. Dude Products has moved for partial judgment on the pleadings, seeking a declaration regarding the duty to defend as well as actual damages. It contends that Harleysville has a duty to defend because the Wyant action alleges covered property damage that arose from an "occurrence"; the policy exclusions do not preclude Harleysville's duty to defend; and the property damage alleged in the Wyant action potentially falls within the policy period. Judge Kennelly finds that the complaint in the Wyant case does not specifically use the term "property damage," but it includes factual allegations encompassing that, specifically its allegations of injury in the form of "clogs or other sewage damage." Harleysville contends that there is no claim involving covered property damage, arguing that clogging does not amount to a physical injury to tangible property. The Court need not address that particular coverage issue, however, because it disregards the underlying plaintiffs' allegation of "other sewage damage," which is a sufficient allegation of a physical injury to tangible property. Judge Kennelly thus concludes that the allegations in the Wyant action are sufficient to trigger Harleysville's duty to defend. First, Judge Kennelly holds that the underlying complaint triggers Harleysville's duty to defend because it sufficiently pled an "occurrence." Second, because the underlying complaint does not allege, directly or inferentially, that Dude Products expected or intended the injury at issue in this case -- rather than just the acts that resulted in the injury -- he finds that the expected or intended injury exclusion does not apply to preclude coverage. Third, the exclusion also does not apply. Fourth, Judge Kennelly finds that Harleysville has a duty to defend Dude Products that extends to the underlying litigation. Consequently, he grants Dude Product's partial motion for judgment on the pleadings and denies Harleysville's motion for judgment on the pleadings on the duty to defend claim. Because the underlying litigation is still pending, he dismisses Harleysville's duty to indemnify claim as unripe. For the foregoing reasons, Judge Kennelly grants Dude Products' motion for partial judgment on the pleadings with regard to liability on the duty to defend claims in Count 1 of Harleysville's complaint and Counts 1 and 4 of Dude Products' counterclaim. Dude Products is thus entitled to recover actual damages for Harleysville Preferred's breach of the Harleysville Primary Policy. He denies Harleysville's cross-motion for judgment on the pleadings because Harleysville has a duty to defend Dude Products in the Wyant lawsuit and its duty to indemnify claim is unripe. The parties are directed to confer regarding any necessary further proceedings and were to submit a joint status report in this regard by Jan. 3, 2023. The case is set for a telephonic status hearing on Jan. 6, 2023, at 8:40 a.m., using call-in number 888-684-8852, access code 746-1053. A full-text copy of the Court's Dec. 21, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/ycx7sate from Leagle.com. E&R SERVICES INC: Cano Sues to Recover Unpaid Wages & Overtime Pay ------------------------------------------------------------------ Juan Cruz Cano, Jose Ivan Cruz Cano and Daniel Cruz Cano, on behalf of themselves and all others similarly situated v. E&R SERVICES, INC., EMILIO RODRIGUEZ JR., Case No. 8:22-cv-03330-AAQ (D. Md., Dec. 23, 2022), is brought to recover unpaid back wages, overtime pay, liquidated damages, treble damages, reasonable attorney's fees and costs under the federal Fair Labor Standards Act of 1938 ("FLSA"); and Plaintiffs further state a putative class action, pursuant to Rule 23, against Defendants alleging supplemental state law claims under the Maryland Wage and Hour Law, Labor and Employment, the Maryland Wage Payment and Collection Law ("MWPCL"), Maryland Code, Labor and Employment, and the Maryland Workplace Fraud Act. Esau Reyes Martinez worked for defendants as an hourly paid foreman from March 2019 to May 2022. During his entire tenure of employment, Mr. Reyes Martinez's crew met at E&R's shop at 6 a.m. Once at the shop, Mr. Reyes Martinez and his crew loaded the tools and equipment they needed for the day. E&R's Construction Superintendent, Emlio Rodriguez Sr. directed the foreman to start recording the workers' working time a 7 a.m. When Mr. Reyes Martinez argued this practice of shaving one hour worked from each worker, Mr. Rodriguez Sr. would not relent. All or nearly all of the time sheets Mr. Reyes Martinez filled out follow the Defendants' requirements and show start times of 7 AM or later. The Plaintiffs all worked on Mr. Reyes Martinez's crew and had their time shaved by defendants nearly every working day. In other words, Defendants required the Plaintiffs and those similarly situated to work "off the clock," or, alternatively, the Defendants shaved their hours. The Defendants often round down worker time to the nearest hour. This occurred for the Plaintiffs and similarly situated employees in Defendants' commercial construction division. In addition, defendants maintain a common policy or practice, which applies to all, or nearly all of its construction workers in which Defendants do not pay the required overtime premium for all hours worked over 40 in a week. The Defendants sometimes treat their construction workers as employees and withhold payroll taxes. But, on other occasions, Defendants misclassify their construction workers as independent contractors and do not withhold payroll taxes. The Defendants knowingly misclassified plaintiffs as independent contractors. The Defendants were required by law to record the hours worked by the Plaintiffs. The Defendants have, or should have, records sufficient to permit a calculation of the hours worked, and the overtime underpayments, for the Plaintiffs, and others similarly situated. The Defendants' conduct was knowing and willful as they knew of their obligations to accurately record and pay for employee time worked and pay time and a half for hours worked over forty in a week, says the complaint. The Plaintiffs worked for the Defendants as laborers/finishers in Prince George's County, Maryland. E&R is a Maryland corporation doing regular business in Prince George's County, Maryland with its primary business in commercial and residential construction.[BN] The Plaintiffs are represented by: James E. Rubin, Esq. RUBIN EMPLOYMENT LAW FIRM, PC 600 Jefferson Plaza, Suite 204 Rockville, MD 208502 Phone: (301) 760-7914 Email: jrubin@rubinemploymentlaw.com - and - Aaron Z. Uslan, Esq. Law Office of Aaron Z. Uslan LLC 5034 Wisconsin Ave. NW, Ste. 250 Washington, DC 20016 Phone: (202) 350-2900 EHPLABS LLC: Santana Files ADA Suit in N.D. New York ---------------------------------------------------- A class action lawsuit has been filed against EHPlabs, LLC. The case is styled as Juan Santana, individually, and on behalf of all others similarly situated v. EHPlabs, LLC, Case No. 1:22-cv-01382-GLS-CFH (N.D.N.Y., Dec. 23, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. EHPlabs -- https://ehplabs.com/ -- is a global, leading fitness supplement company helping millions of people worldwide reach their weight loss & fitness goals.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com ELITE STRENGTH: Zarzuela Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Elite Strength Equipment, LLC. The case is styled as Jose Zarzuela, individually, and on behalf of all others similarly situated v. Elite Strength Equipment, LLC, Case No. 1:22-cv-10844 (S.D.N.Y., Dec. 23, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Elite Strength Equipment -- https://www.elitefts.com/ -- offers high quality strength equipment from a wide range of competitively priced pieces trusted by worldwide experts.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com ETHOS GROUP: Gorman Sues Over Failure to Secure and Safeguard PII ----------------------------------------------------------------- Nicholas Gorman, on behalf of himself and all others similarly situated v. Ethos Group, Inc., Case No. 3:22-cv-02898-K (N.D. Tex., Dec. 23, 2022), is brought against Defendant for its failure to properly secure and safeguard the personally identifiable information that it collected and maintained as part of its regular business practices including, but not limited to, names and driver's license numbers (collectively defined herein as "PII" or "Private Information"). On August 1, 2022, Defendant became aware of suspicious activity on its networks. Defendant proceeded to investigate the nature and scope of the suspicious activity and subsequently concluded that "some consumer information was accessed between July 30, 2022 and July 31, 2022", including Plaintiff's and Class Members' PII (the "Data Breach"). According to Defendant's Notice of Security Incident letter (the "Notice Letter"), the compromised information included individuals' names and driver's license numbers. By obtaining, collecting, using, and deriving a benefit from the PII of the Plaintiff and Class Members, the Defendant assumed legal and equitable duties to those individuals to protect and safeguard that information from unauthorized access and intrusion. The Defendant failed to adequately protect Plaintiff's and Class Members PII––and failed to even encrypt or redact this highly sensitive information. This unencrypted, unredacted PII was compromised due to Defendant's negligent and/or careless acts and omissions and its utter failure to protect customers' sensitive data. Hackers targeted and obtained Plaintiff's and Class Members' PII because of its value in exploiting and stealing the identities of Plaintiff and Class Members. The present and continuing risk to victims of the Data Breach will remain for their respective lifetimes. The Defendant disregarded the rights of Plaintiff and Class Members by intentionally, willfully, recklessly, or negligently failing to implement and maintain adequate and reasonable measures to ensure that the PII of Plaintiff and Class Members was safeguarded, failing to take available steps to prevent an unauthorized disclosure of data, and failing to follow applicable, required, and appropriate protocols, policies, and procedures regarding the encryption of data, even for internal use. As a result, the PII of Plaintiff and Class Members was compromised through disclosure to an unknown and unauthorized third party. Plaintiff and Class Members have a continuing interest in ensuring that their information is and remains safe, and they should be entitled to injunctive and other equitable relief, says the complaint. The Plaintiff obtained an automobile-related service and/or products from the Defendant. Ethos is a Texas-based company that provides a variety of services to its partnered automobile dealership including consulting, recruiting, training, compliance solutions, as well as "financing and servicing automobiles."[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Phone: 214-744-3000 Facsimile: 214-744-3015 Email: jkendall@kendalllawgroup.com - and - Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Email: gklinger@milberg.com FAMILY HOME: Teshabaeva Files Appeal in Wage-and-Hour Suit ----------------------------------------------------------- MAKTUMMA TESHABAEVA, et al. are taking an appeal from a court order in their lawsuit entitled Maktumma Teshabaeva, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Family Home Care Services of Brooklyn and Queens, Inc., et al., Defendants, Case No. 158949/2017, in the Supreme Court of the State of New York, New York County. The Plaintiffs brought this class action complaint against the Defendants for unpaid minimum wages, overtime wages, spread of hours compensation, and prevailing wages and benefits in violation of the New York Labor Law. The appellate case is captioned Maktumma Teshabaeva, et al. v. Family Home Care Services of Brooklyn and Queens, Inc., et al., Case No. 22-05482, in the First Judicial Department of New York Appellate Division, filed on December 6, 2022. [BN] Plaintiffs-Petitioners MAKTUMMA TESHABAEVA, et al., on behalf of themselves and all others similarly situated, are represented by: LaDonna M. Lusher, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, Seventh Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: llusher@vandallp.com Defendants-Respondents FAMILY HOME CARE SERVICES OF BROOKLYN AND QUEENS, INC., et al. are represented by: Richard Bahrenburg, Esq. FORDHARRISON LLP 366 Madison Avenue, 7th floor New York, NY 10017 Telephone: (212) 453-5900 Facsimile: (212) 453-5959 E-mail: rbahrenburg@fordharrison.com FANTASIA TRADING: Blodgett Sues Over False Advertisements --------------------------------------------------------- Ryan Blodgett, on behalf of himself and a class of all others similarly situated v. FANTASIA TRADING LLC, and ANKER INNOVATIONS, Case No. 2:22-cv-01816 (W.D. Wash., Dec. 23, 2022), is brought against Defendants regarding the manufacture, distribution, and sale of its eufy-branded security camera products ("the "Affected Products") which has been falsely represented on the product packaging and in advertisements. Eufy claims that the video footage taken by the Affected Products is stored locally and encrypted on the user's device. Several of these representations appear on the product and packaging label of the Affected Products. Defendants advertised that video and pictures would be stored locally and without fees. As a result of Defendants prominently advertising and labeling the Affected Products with "No Clouds" and local handling of data representations (the "Local Data Claims"), Plaintiff and absent Class members were led to believe that the Affected Products do not share their data with third parties. However, a report by cybersecurity investigator Paul Moore uncovered that the Affected Products actually upload video thumbnails and facial recognition data to Defendants' cloud servers. Using a simple internet browser, he was able to monitor signal transmissions from the eufy security app to cloud storage which included data such as ai recognized facial information from people in the photos captures by the Affected Products, thumbnails from any video captured by the Affected Products, and that it was possible to stream live video from the Affected Products using a simple media player as a result of incredibly weak encryption. The Defendants' use of cloud services in the Affected Products were also confirmed by security firm SEC Consult. SEC Consult found that the transmissions to the cloud servers included unencrypted traffic, making the device's username, account ID, and sent commands publicly visible. SEC Consult also identified that hard-coded encryption/decryption keys common to all "Homebase" devices were made visible. Accordingly, Defendants falsely represented on product packaging and in advertisements that the Affected Products stored all data locally and securely through use of military-grade encryption. The Defendants omitted the following facts when selling the Affected Products to Plaintiff and absent Class members: The Affected Products stored Plaintiff and absent Class members' data in the cloud and not locally on devices; The Affected Products transmitted Plaintiff and absent Class members' data without encryption; The Affected Products allow for unencrypted access to Plaintiff and absent Class members' cameras; and The Affected Products shared Plaintiff and absent Class members' data with third parties. The Plaintiff and Class members purchased the Affected Products with the expectation that the video footage taken by the Affected Products would be stored locally and encrypted on their devices. Because Defendants sold the Affected Products to consumers which transmitted data to third-party cloud servers and otherwise had inadequate security measures in place, Plaintiff and the Classes were deprived of the benefit of their bargain. Prior to revelations made in November of 2022, Defendants alone knew that the Affected Products sent information to cloud servers and provided inadequate security for the Affected Products. Had Plaintiff known the information that Defendants omitted to disclose, Plaintiff would not have purchased the Affected Products, or would have paid less for them, says the complaint. The Plaintiff purchased several of the Affected Products – e.g., eufyCam2, eufyCam 2 Pro, Video Doorbell 2k, IndoorCam 2k, and Floodlight Camera from Amazon.com and Best Buy. The Defendants manufacture, distribute, market, and sell the eufy branded Affected Products.[BN] The Plaintiff is represented by: Kim D. Stephens, Esq. Jason T. Dennett, Esq. Rebecca L. Solomon, Esq. TOUSLEY BRAIN STEPHENS PLLC 1200 Fifth Avenue, Suite 1700 Seattle, WA 98101 Phone: (206) 682-5600 Facsimile: (206) 682-2992 Email: kstephens@tousley.com jdennett@tousley.com rsolomon@tousley.com - and - Mark S. Reich, Esq. Courtney E. Maccarone, Esq. Gary I. Ishimoto, Esq. LEVI & KORSINSKY, LLP 55 Broadway, 10th Floor New York, NY 10006 Phone: 212-363-7500 Facsimile: 212-363-7171 Email: mreich@zlk.com cmaccarone@zlk.com gishimoto@zlk.com FINGERHUT ADVANTAGE: Gross Sues Over Inaccurate Reporting of Credit ------------------------------------------------------------------- Brian Gross, individually and on behalf of those similarly situated v. BLST Operating Company, LLC d/b/a Fingerhut, Case No. 27-CV-22-18839 (Minn. 4th Judicial Dist. Ct., Hennepin Cty., Dec. 23, 2022), is brought under the Fair Credit Reporting Act and the Minnesota state law against the Defendant's inaccurate reporting of credit scores. Fingerhut encourages its customers to buy products from Fingerhut with Fingerhut's credit accounts in order to build a credit history. Fingerhut tells its customers that using Fingerhut will allow a consumer to "build your credit history when you make a purchase and pay your monthly bill" and "build a better credit future." In March 2022, however, Fingerhut opened thousands of new accounts for consumers without permission, damaging the credit ratings of its customers in the process. Without permission from its customers, Fingerhut closed its customers' "Fingerhut Advantage" accounts and opened new "Fingerhut Fetti" accounts in their names, without their permission. For the most part, the Fingerhut Fetti accounts had the same credit line amounts as the prior Fingerhut Advantage accounts. Starting in April 2022, new purchases could not be made with the Fingerhut Advantage accounts and the accounts were closed or left open only for collections purposes. Fingerhut opened Fingerhut Fetti accounts for people who had not made a transaction with Fingerhut in many years, and even for people who never made a transaction with Fingerhut. Despite the fact that the Fingerhut Fetti accounts were essentially continuations of the Fingerhut Advantage accounts, Fingerhut reported the Fingerhut Fetti accounts as new and separate tradelines from the Fingerhut Advantage accounts to the credit bureaus. The Fingerhut Fetti accounts had open dates of March or April 2022. These actions harmed consumers' credit. Credit scores are determined in part by how many open accounts a consumer may have and how long active credit accounts have been open. By reporting the Fingerhut Advantage accounts as closed (some of which had been open for more than a decade), Fingerhut shortened the length of time that consumers had had credit with open accounts thereby decreasing the average credit length for consumers and damaging their credit scores. To make matters worse, by opening new accounts (without permission) and reporting such to the credit bureaus, Fingerhut further damaged credit scores as opening a new line of credit also causes credit scores to drop. On May 15, 2022, the Plaintiff received a credit alert that a new "Fingerhut Fetti Account" was reporting on his credit report. On the same date, the Plaintiff received another alert that his FICO score had dropped by 25 points. Plaintiff was alarmed because he never opened a Fingerhut Fetti account. He disputed this account multiple times with the Big Three credit bureaus (Experian, Equifax, and Trans Union). The Plaintiff has disputed with Experian, Trans Union, Equifax, and Fingerhut stating that he never authorized the opening of any new account and asking Fingerhut to correct the date the account was opened. In response to Plaintiff's dispute, Fingerhut admitted that the "closure of the old account and opening of the new account can temporarily lower your credit score." Despite Plaintiff's disputes, Fingerhut has done nothing to prevent or correct the inaccurate reporting of the Fingerhut Fetti accounts. Nor has Fingerhut closed the account it opened without Plaintiff's permission. Instead, Fingerhut inexplicably claims that its hands are tied because "we cannot revise the information we are reporting to the credit bureaus as we are required to furnish accurate reporting." The Plaintiff is not alone. Fingerhut unlawfully opened thousands of Fingerhut Fetti accounts and there are many people complaining that their credit scores dropped because of Defendant's actions. The Plaintiff, on behalf of himself, and those similarly situated, thus brings this class action complaint against Fingerhut seeking damages and other relief, says the complaint. The Plaintiff first opened a Fingerhut account in October 2011 and has not used the account in years. Fingerhut provides credit to consumers to buy goods "from a broad selection of national brands" and markets itself to consumers "looking to establish, build or rebuild credit."[BN] The Plaintiff is represented by: E. Michelle Drake, Esq. John G. Albanese, Esq. BERGER MONTAGUE PC 1229 Tyler Street NE, Suite 205 Minneapolis, MN 55413 Phone: 612-594-5999 Facsimile: 612-584-4470 Email: emdrake@bm.net jalbanese@bm.net GATEWAY REHABILITATION: Coast Files Suit in W.D. Pennsylvania ------------------------------------------------------------- A class action lawsuit has been filed against Gateway Rehabilitation Center. The case is styled as Candace Coast, individually and on behalf of all others similarly situated v. Gateway Rehabilitation Center doing business as: Gateway Rehab, Case No. 2:22-cv-01863-LPL (W.D. Pa., Dec. 23, 2022). The nature of suit is stated as Other P.I. for Personal Injury. Gateway -- https://www.gatewayrehab.org/ -- is the country's largest nonprofit treatment provider specializing in substance use disorder treatment & co-occurring disorders.[BN] The Plaintiff is represented by: Randi Kassan, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (212) 594-5300 Email: rkassan@milberg.com GREATFOODS IT'S VEGAN: Zarzuela Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Greatfoods, It's Vegan LLC. The case is styled as Jose Zarzuela, individually, and on behalf of all others similarly situated v. Greatfoods, It's Vegan LLC, Case No. 1:22-cv-10873 (S.D.N.Y., Dec. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GTFO It's Vegan -- https://gtfoitsvegan.com/ -- is a the largest online retailer, wholesaler, and distributor of curated vegan foods.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com HANOVER DIRECT: Jackson Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Hanover Direct, Inc. case is styled as Sylinia Jackson, on behalf of herself and all other persons similarly situated v. Hanover Direct, Inc. d/b/a The Company Store, Inc., Case No. 1:22-cv-10848 (S.D.N.Y., Dec. 23, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hanover Direct -- http://www.hanoverdirect.com/-- is an e-commerce retail services company that presents domestic fashions and regularly occurring merchandise.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com HARVARD MAINTENANCE: Baez Suit Removed to D. Massachusetts ---------------------------------------------------------- The case captioned as Christian Baez, individually, and on behalf of all others similarly situated v. HARVARD MAINTENANCE, INC., Case No. 2082-cv-01048 was removed from the Superior Court for the Commonwealth of Massachusetts, Norfolk County, to the United States District Court for the District of Massachusetts on Dec. 26, 2022, and assigned Case No. 1:22-cv-12199. In his Complaint, the Plaintiff claims that Defendant violated the Massachusetts General Laws by allegedly misclassifying Plaintiff as an independent contractor and allegedly failing to pay Plaintiff minimum wage and overtime. Plaintiff claims he is entitled to $100,000 as a result of the alleged "failure pay proper wages."[BN] The Defendant is represented by: Joshua D. Nadreau, Esq. FISHER & PHILLIPS LLP 200 State Street, 7th Floor Boston, MS 02109 Phone: (617) 722-0044 Fax: (617) 532-5899 Email: jnadreau@fisherphillips.com HOMELAND SECURITY: $2.75M in Attys.' Fees & Costs Given in Nio Suit ------------------------------------------------------------------- In the case, KUSUMA NIO, et al., Plaintiffs v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants, Civil Action No. 17-0998 (PLF) (D.D.C.), Judge Paul L. Friedman of the U.S. District Court for the District of Columbia: a. grants the parties' Joint Motion for Approval of Settlement Regarding Plaintiffs' Claims for Equal Access to Justice Act Attorneys' Fees and Costs; b. approves the parties' Settlement Agreement; and c. awards attorneys' fees and costs in the amount of $2.75 million. Plaintiff Kusuma Nio, et al., and Defendants the United States Department of Homeland Security, et al., have filed the Joint Motion for Attorneys' Fees. The Secretary of Defense authorized the creation of the Military Accessions Vital to the National Interest ("MAVNI") program in 2008. The MAVNI program permits non-citizens who are not lawful permanent residents to enlist in the U.S. military if it is determined to be vital to the national interest. Certain individuals who enlist in the Selected Reserve of the Ready Reserve of the U.S. military through the MAVNI program are eligible for naturalization under 8 U.S.C. Section 1440. That statute permits non-citizens who have honorably served as members in the Selected Reserve or in an active-duty status in the military during a designated period of military hostilities (i.e., "qualifying military service") to become U.S. citizens. To determine eligibility for naturalization, U.S. Citizenship and Immigration Services ("USCIS") requires an applicant to submit, along with a Form N-400 application for naturalization, a Form N-426 completed by an official within the U.S. Department of Defense ("DOD") certifying the applicant's qualifying military service. Starting in early 2017, USCIS began to delay the processing of Form N-400s from MAVNI enlistees who were serving in the Selected Reserve but, pending the results of the DOD's enhanced security screening, had not yet been shipped to basic training. On May 24, 2017, the Plaintiffs filed a class action complaint in this Court alleging that USCIS and DOD were unlawfully delaying the processing of MAVNI naturalization applications due to improper interference in the process by DOD. They sought declaratory relief, preliminary and permanent injunctive relief, relief pursuant to the Administrative Procedure Act, and issuance of a writ of mandamus. On Sept. 6, 2017, the Court denied the Plaintiffs' motion for preliminary injunctive relief. On Oct. 13, 2017, DOD issued guidance (the "October 13 Guidance") that would delay the certification of a Form N-426 until a MAVNI's applicable screening and suitability requirements had been completed. Following issuance of the October 13 Guidance, the Court granted the Plaintiffs leave to file an amended complaint, an amended motion for class certification, and a motion for preliminary injunctive relief confined to the narrow issue of DOD's position regarding Form N-426 outlined in the October 13 Guidance. On Oct. 27, 2017, the Court certified a class consisting of all persons who, before Oct. 13, 2017, enlisted in the Selected Reserve through the MAVNI program; served honorably in the Selected Reserve or in an active-duty status, received from the U.S. military executed Form N-426s certifying their honorable service; submitted N-400 Applications for Naturalization to USCIS; and had the processing or final adjudication of their naturalization applications withheld or delayed. The same day, the Court also granted the Plaintiffs' renewed motion for preliminary injunctive relief and barred the Defendants from implementing a portion of the DOD's Oct. 13, 2017 guidance. On May 22, 2019, the Court granted in part the Plaintiffs' motion for summary judgment and denied the Defendants' cross-motion for summary judgment. On Aug. 20, 2020, it converted the preliminary injunction issued on Oct. 27, 2017 into a permanent injunction and entered judgment for the Plaintiffs. The injunction prohibits the Defendants from implementing "Section III of DOD's October 13, 2017 Guidance" and from decertifying, rescinding, recalling, revoking, or otherwise invalidating the Plaintiffs' or the class' existing and duly issued Form N-426s, except as related to the conduct of a class member and based on sufficient grounds generally applicable to members of the military for re-characterization of service. On April 9, 2021, the Plaintiffs filed a Motion for Attorneys' Fees, Costs, and Expenses Pursuant to the Equal Access to Justice Act ("Motion for Attorneys' Fees"). The Defendants filed a response on May 29, 2021, and the Plaintiffs filed a reply on July 1, 2021. On March 25, 2022, the Court referred the case to mediation, and thereafter, the parties participated in two mediation session conducted by Magistrate Judge G. Michael Harvey. On Oct. 18, 2022, the parties jointly filed the motion currently before the Court for approval of a settlement regarding attorneys' fees. The Plaintiffs seek an award of attorneys' fees and costs under the Equal Access to Justice Act ("EAJA" or the "Act"), 28 U.S.C. Section 2412. They maintain that there is no statutory ceiling on the hourly rate used to calculate fees under Section 2412(b) if there is a finding of bad faith. The Defendants do not address this issue in the Joint Motion for Attorneys' Fees. The Settlement Agreement itself references the EAJA and cites 28 U.S.C. Section 2412 without mentioning any particular subsection of the Act. Judge Friedman sees no need to address the issue of bad faith. Judge Friedman also finds that the class counsel has provided notice to class members sufficient to satisfy the demands of Rule 23(h)(1). Upon filing the Joint Motion for Attorneys' Fees, the class counsel published the joint motion and the Settlement Agreement on the website used to communicate with class members throughout the litigation: https://dcfederalcourtmavniclasslitigation.org/. Furthermore, the Plaintiffs filed a supplemental memorandum reporting that, as of Nov. 7, 2022, no class members had commented on or objected to the motion for attorneys' fees. With regard to a "reasonable hourly rate," the Plaintiffs request fees based on the hourly rates set out in the Legal Services Index Laffey Matrix. Applying the Laffey Matrix to the number of hours reasonably expended on the litigation by the Plaintiffs' counsel yields a lodestar amount of $9,757,453 in attorneys' fees. Judge Friedman opines that the proposed settlement amount of $2.75 million in attorneys' fees and costs agreed upon by the parties adequately reflects the Plaintiffs' sterling success and is a reasonable and fair award. For the foregoing reasons, Judge Friedman grants the parties' Joint Motion for Attorneys' Fees and awards $2.75 million in attorneys' fees and costs to the Plaintiffs. He approves the parties' Settlement Agreement. The United States will pay the counsel for the Plaintiffs $2.75 million in attorneys' fees and costs. He denies as moot the Plaintiffs' Motion for Attorneys' Fees, Costs, and Expenses Pursuant to the Equal Access to Justice Act. A full-text copy of the Court's Dec. 21, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/y8hrcz8k from Leagle.com. HOPE COLLEGE: Devries Sues Over Failure to Safeguard PII -------------------------------------------------------- Jennie Devries, individually and on behalf of all others similarly situated v. HOPE COLLEGE, Case No. 1:22-cv-01224 (E.D. Mich., Dec. 26, 2022), is brought arising out of the recent data breach (the "Data Breach") involving Hope College, which collected and stored certain personally identifiable information ("PII") of the Plaintiff and the putative Class Members, all of whom have PII on Hope College servers. According to Hope College, the PII that was subject to "unauthorized access" in the Data Breach included highly-sensitive information: first and last names, date of birth, Social Security numbers, driver's license numbers, and student ID numbers. The Data Breach was a direct result of Hope College's failure to implement adequate and reasonable cybersecurity procedures and protocols necessary to protect consumers' PII. Hope College itself has acknowledged that it first discovered the cybersecurity attack on or around September 27, 2022, but it has only recently begun contacting Class Members. According to the Office of the Maine Attorney General, whom Hope College was required to notify, the Data Breach has affected 156,783 individuals. The Plaintiff brings this class action lawsuit individually as well as on behalf of all those similarly situated to address Hope College's inadequate safeguarding of Class Members' PII that it collected and maintained, and for failing to provide timely and adequate notice to the Plaintiff and other Class Members that their information was unsecured and left open to the unauthorized access of any unknown third party, says the complaint. The Plaintiff was notified by Defendant via letter of the Data Breach and of the impact to her PII on December 15, 2022. Hope College is a private Christian liberal arts college in Holland, Michigan.[BN] The Plaintiff is represented by: E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Emily E. Hughes, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Phone: 248-841-2200 Email: epm@millerlawpc.com ssa@millerlawpc.com eeh@millerlawpc.com - and - Jonathan Shub, Esq. Benjamin F. Johns, Esq. SHUB LAW FIRM 134 Kings Highway E. 2nd Floor Haddonfield, NJ 08033 Phone: (856) 772-7200 Fax: (856) 210-9088 Email: jshub@shublawyers.com bjohns@shublawyers.com HUB HOBBY CENTER: Toro Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Hub Hobby Center, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Hub Hobby Center, Inc., Case No. 1:22-cv-10880-AT (S.D.N.Y., Dec. 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Damhorst Toys and Puzzles, Inc. -- https://www.damhorsttoys.com/ -- make personalized wooden baby gifts and toys.[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 HUNGRY SQUIRREL: Batista Sues Over Blind-Inaccessible Website ------------------------------------------------------------- Juan Batista, individually, and on behalf of all others similarly situated v. HUNGRY SQUIRREL, LLC, Case No. 727068/2022 (N.Y. Sup. Ct., Queens Cty., Dec. 26, 2022), is brought challenging the Defendant's discriminatory business practices with regards to the Defendant's Website which contained access barriers that prevented the Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon. The Defendant is an online retail company, who owns and/or operates Hungrysquirrel.com ("Website" or "Defendant's Website"). Through the Website, Defendant sells its products, such as keto friendly sauces. The Defendant and its and its Website--which is not equally accessible to blind and/or visually impaired consumers--violate the following: the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff brings this action in both an individual capacity and on the behalf of other similarly situated blind and/or visually impaired people who sought to purchase the goods and products that Defendant sells, says the complaint. The Plaintiff is a blind, visually impaired, handicapped person. The Defendant owns and/or operates the Website: Hungrysquirrel.com, which is a place of public accommodation.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Phone: 212/595-6200 Fax: 212/595-9700 Email: wdownes@mizrahikroub.com KAHALA FRANCHISING: Duncan Files Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Kahala Franchising, L.L.C. The case is styled as Jenna Marie Duncan, individually and on behalf of all others similarly situated v. Gateway Rehabilitation Center doing business as: Gateway Rehab, Case No. 2:22-cv-07841-GRB-AYS (E.D.N.Y., Dec. 23, 2022). The nature of suit is stated as Fraud or Truth-In-Lending. Kahala -- https://www.kahalamgmt.com/ -- is a franchisor of quick-service restaurants with a portfolio of 18 diversified brands.[BN] The Plaintiff is represented by: Robert Abiri, Esq. CUSTODIO & DUBEY LLP 445 S. Figueroa St., Suite 2520 Los Angeles, CA 90071 Phone: (213) 593-9095 Email: abiri@cd-lawyers.com KITCHEN STADIUM: Zarzuela Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Kitchen Stadium Inc. The case is styled as Jose Zarzuela, individually, and on behalf of all others similarly situated v. Kitchen Stadium Inc., Case No. 1:22-cv-10874 (S.D.N.Y., Dec. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kitchen Stadium -- http://www.kitchenstadium.com/-- is the parent company for STADIUM and SnackMagic.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com LOAN DEPOT: Sawicki Files TCPA Suit in S.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Loan Depot, LLC, et al. The case is styled as Zachary Sawicki, individually, and on behalf of all others similarly situated v. Loan Depot, LLC, John Does 1-10, Case No. 2:22-cv-14425-XXXX (S.D. Fla., Dec. 23, 2022). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. LoanDepot -- https://www.loandepot.com/ -- sometimes stylized as loanDepot, is an Irvine, California-based nonbank holding company which sells mortgage and non-mortgage lending products.[BN] The Plaintiff is represented by: Alexander James Adducci Taylor, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 Fax: (630) 575-8188 Email: ataylor@sulaimanlaw.com MDL 3052: 16 Suits Consolidated in Kia Hyundai Auto-security Row ---------------------------------------------------------------- In litigations involving allegations that certain Hyundai and Kia vehicles are unduly susceptible to theft, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers two cases each from the U.S. District Court for the Central District of California and Western District of Missouri and one case each from the District of Colorado, Middle District of Florida, Northern District of Illinois, Southern District of Iowa, District of Kansas, Eastern District of Kentucky, District of Nebraska, Southern District of New York, Northern District of Ohio, Southern District of Ohio, Southern District of Texas and Eastern District of Wisconsin, all to the Central District of California and, with the consent of that court, assigned to Judge James V. Selna for coordinated or consolidated pretrial proceedings in IN RE: KIA HYUNDAI VEHICLE THEFT LITIGATION, MDL No. 3052. No party opposed centralization of this litigation, but the parties disagreed considerably over selection of the transferee district. Plaintiffs in all actions purchased or leased Kia and Hyundai branded vehicles that they allege are defective because the cars lack engine immobilizer technology, which prevents them from being started unless a code is transmitted from a unique smart key. The vehicles at issue include 2011-2022 Kia vehicles and 2015-2022 Hyundai vehicles that were equipped with traditional "insert-and-turn" steel key ignition systems. Plaintiffs argue that vehicles that lack immobilizer technology are particularly susceptible to being stolen. According to the MDL Panel, all actions are expected to share factual questions surrounding the marketing, sale and manufacture of these vehicles and defendants' knowledge of the alleged defect. Centralization offers substantial opportunity to streamline pretrial proceedings (particularly with respect to class certification) and reduce duplicative discovery and conflicting pretrial obligations. While any number of proposed transferee districts could handle this litigation ably, the Panel is persuaded that the Central District of California is the appropriate transferee district for these cases. The main defendants are based in Orange County, California, and centralization in this district should be convenient for their witnesses. Centralized past MDLs involving the Hyundai and Kia defendants are in this district, in part, because defendants Kia America Inc. and Hyundai Motor America are based there. If needed, the Central District of California offers an accessible district to any witnesses or defendants that are based in Korea. The Central District of California, where fifteen cases are pending (almost a third of the 49 total actions and potential tag-along actions), offers a relatively underutilized transferee district with only four pending MDL dockets. A full-text copy of the Court's December 13, 2022 order is available at bit.ly/3Z7nshp MDL 3053: Transfer of 17 Actions to Nelnet Data Breach Row Denied ------------------------------------------------------------------ Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation denied the motion to centralize litigation of 16 actions in the District of Nebraska in in IN RE: NELNET SERVICING, LLC, CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 3053. This litigation consists of seventeen actions, sixteen of which are pending in the District of Nebraska and one in the Eastern District of Tennessee. Plaintiffs in three actions support or do not oppose centralization in the District of Nebraska. Plaintiffs in two of these actions alternatively propose the Western District of Oklahoma as the transferee district. All other responding parties (plaintiffs in eight actions and defendants Nelnet Servicing LLC and Edfinancial Services, LLC) oppose centralization. Plaintiffs in seven of these actions and Nelnet alternatively support the District of Nebraska as the transferee district. Plaintiff in one of these actions and Edfinancial alternatively propose the Eastern District of Tennessee as the transferee district. These actions involve common questions of fact arising from an alleged data breach of Nelnet, one of the largest student loan servicers in the United States, that was discovered in July 2022 and that compromised the personal identifying information of approximately 2.5 million current and former Nelnet account holders. The Panel concluded that centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation. These is no dispute that these actions involve common questions of fact arising from an alleged data breach of Nelnet, however, the Panel emphasized that "centralization under Section 1407 should be the last solution after considered review of all other options." These options include agreeing to proceed in a single forum via Section 1404 transfer of the cases, as well as voluntary cooperation and coordination among the parties and the involved courts to avoid duplicative discovery or inconsistent rulings. Only one of the 22 actions in this litigation (including the actions noticed by the parties as related) is pending outside the District of Nebraska. Three actions initially filed in other districts have been transferred to the District of Nebraska through agreed transfer motions. Effectively, then, there are two "actions" at issue here -- a group of consolidated class actions in the District of Nebraska and a single class action in the Eastern District of Tennessee. Where only a minimal number of actions are involved, the proponent of centralization bears a heavier burden to demonstrate that centralization is appropriate. Movants have not met this burden here, ruled the Panel. A full-text copy of the Court's December 13, 2022 Order is available at bit.ly/3WXT3QX MDL 3054: Transfer of 2 Suits to Acupuncture Medicare Dispute Nixed ------------------------------------------------------------------- In the acupuncture device Medicare litigation, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, denied the move to centralize the litigation of two actions in IN RE: STIVAX MARKETING AND SALES PRACTICES LITIGATION, MDL No. 3054, in the District of Arizona. This litigation consists of two actions, one case each in the U.S. District Court District of Arizona and the Eastern District of Pennsylvania where the plaintiff in the latter moved to centralize the litigation in the District of Arizona. Defendant Biegler GmbH, opposed centralization. Plaintiffs in these two actions are medical practitioners who allege that defendants Biegler, Solace Advancement, LLC, and James Carpenter persuaded them to purchase auricular electro-acupuncture devices by falsely representing that the devices and related services were reimbursable under the Medicare Program. Auricular electro-acupuncture devices are small, portable units that are taped to a patient's skin, with needles that are inserted into the skin of the patient's ear. The devices provide electrical current, which purportedly helps control pain. On the basis of the papers filed and the hearing session held, the panel concluded that centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation. The panel has repeatedly explained that, where only a minimal number of actions are involved, the moving party generally bears a heavier burden of demonstrating the need for centralization. Movant has failed to carry that burden here. While the actions involve some overlapping factual questions, those questions do not seem sufficiently complex or numerous to warrant the creation of an MDL, adds the Panel. Discovery regarding defendants' conduct should be fairly straight-forward, and informal coordination should be possible to avoid unnecessary duplication of effort. A full-text copy of the Court's December 12, 2022 Order is available at bit.ly/3VEJ8P1 META PIXEL: Simmons and Cohen Appointed as Interim Co-Lead Counsel ------------------------------------------------------------------ In the case, IN RE META PIXEL HEALTHCARE LITIGATION, Case No. 22-cv-03580-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California grants Simmons Hanly/Cohen Milstein's Motion for Appointment of Interim Lead Counsel. There are currently seven cases consolidated before Judge Orrick involving a tracking tool known as the Meta Pixel, through which Meta allegedly receives the health information of millions of Facebook users in the United States. Since he consolidated the cases in October, the counsel from nine different firms have sought appointment as the interim class counsel in three different motions. All of the applicants are capable and experienced. In June of 2022, Plaintiff John Doe (represented by Simmons Hanly and Kiesel Law, among others) brought the first case against Meta arising from the Pixel's alleged interception and transmission of protected health information. Beginning in late July and throughout October, other plaintiffs began filing similar cases against Meta and, in some cases, healthcare providers that allegedly used the Meta Pixel tool -- Jane Doe v. Meta Platforms, Inc., et al., No. 22-cv-04293-WHO (N.D. Cal.); Krackenberger v. Northwestern Memorial Hospital, et al., No. 22-cv-04203 (N.D. Ill.); Doe v. Meta Platforms, Inc., No. 22-cv-04680-WHO (N.D. Cal.); Jane Doe v. Meta Platforms, Inc., No. 22-cv-04963-WHO (N.D. Cal.). In total, there are seven cases pending in the Northern District of California alleging Pixel-related claims against Meta that have been assigned to me. While cases continued to be filed over the summer, the plaintiffs in the first-filed case pressed forward. In late July, they served discovery requests on Meta, and in August, they moved for a preliminary injunction. At the end of August, plaintiffs from one of the later-filed cases moved to consolidate all of the related actions against Meta -- Doe v. Meta Platforms, Inc., No. 22-cv-04680-WHO (N.D. Cal.). In October, Judge Orrick granted the motion to consolidate and set a briefing schedule for the appointment of interim class counsel -- John Doe v. Meta Platforms, Inc., No. 22-cv-3580-WHO. Three sets of law firms have proposed leadership teams for me to consider. The first group asks Judge Orrick to appoint Jay Barnes of Simmons Hanly Conroy LLC and Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC as the interim co-lead counsel, and to create an executive committee comprised of Beth Terrell of Terrell Marshall Law Group PLLC, Jeffrey Koncius of Kiesel Law Group LLP, and Andre Mura of Gibbs Law Group. Non-moving counsel from two of the consolidated cases filed statements of support for the Simmons Cohen team. The second group proposes that Judge Orrick appoints two attorneys each from three different law firms as interim co-lead counsel. They nominate Margaret MacLean and Amanda Fiorilla of Lowey Dannenberg, Eddie Jae Kim and Hannah Barnett of Lynch Carpenter, and Karen Riebel and Kate Baxter-Kauf of Lockridge Grindal Nauen. Finally, Rebecca Gilliland of Beasley Allen seeks appointment as either a co-lead counsel or to the executive committee. To determine who to appoint as interim class counsel, Judge Orrick begins by analyzing the four mandatory Rule 23(g)(1)(A) factors. Next, he considers other relevant factors under Rule 23(g)(1)(B): namely, the statements of support submitted by other counsel in the consolidated cases, the proposed leadership structure, and diversity. Although all the moving firms are qualified to lead the consolidated matters, Judge Orrick finds that the Rule 23(g)(1)(A) factors favor the Simmons Cohen group. First, the Simmons Cohen group has done the most work to identify and investigate the potential claims. Second, the Simmons Cohen group has the advantage when it comes to experience and knowledge that is highly relevant to the action. Finally, the Simmons Cohen group has committed considerable resources towards the litigation. The other firms seeking appointment have put forward experienced class action and data privacy attorneys who have much to offer the case. His consideration of the Rule 23(g)(1)(A) factors leads Judge Orrick to conclude, though, that the interests of the putative class would best be served by appointing the Simmons Cohen group to be the interim class counsel. Judge Orrick turns now to the other matters pertinent to counsel's ability to fairly and adequately represent the interests of the class under Rule 23(g)(1)(B). The Morgan & Morgan and the Casey Gerry Schenk Francavilla Blatt & Penfield firms describe the Simmons Cohen team as knowledgeable and experienced, and praise the group for its frank and direct communications. These statements merit weight, Judge Orrick holds. The leadership structures put forward by Simmons Cohen and Lowey Lynch Lockridge are different. He recognizes that the case will likely involve many discrete topics that may be parceled out among firms, and that litigating against Meta in a case this significant will certainly demand a deep bench and substantial resources, which the Simmons Cohen group has. Assuming that interim class counsel meet their responsibilities to delegate appropriately and carefully monitor and approve time records to avoid duplication of work product or unnecessary billing, the Simmons Cohen group's proposed structure will offer potential benefits with few disadvantages. Diversity is also a factor that Judge Orrick weighs carefully, as do his colleagues in this District and across the nation. It matters to him that lawyers from groups that have been historically underrepresented in the legal profession have meaningful opportunities to participate in this type of litigation. The Simmons Cohen leadership group is somewhat diverse and has identified an array of diverse attorneys to whom it has committed to delegate significant work Judge Cohen's analysis of the "other matters" under Rule 23(g)(1)(B) tilts in favor of appointing the Simmons Cohen group, as do the Rule 23(g)(1)(B) factors. Accordingly, he appoints Jay Barnes of Simmons Hanly Conroy LLC and Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC as the Interim Co-Lead Class Counsel, and Beth Terrell of Terrell Marshall Law Group PLLC, Jeffrey A. Koncius of Kiesel Law LLP, and Andre Mura of Gibbs Law Group as members of the Executive Committee. It should go without saying that Judge Orrick expects the highest level of professionalism, courtesy and collaboration from any lawyer appearing in cases before him. He will not hesitate to replace lawyers in the leadership group who do not comply with the standards he expects. In general, the Interim Co-Lead Counsel is responsible for coordinating the activities of plaintiffs during the pretrial proceedings. The appointment to the Interim Co-Lead Counsel and the Executive Committee is a personal appointment. The appointees cannot be substituted by other attorneys, including members of the appointee's law firm, except with Judge Orrick's prior approval. A Case Management Conference is set for Jan. 17, 2023, at 2 p.m. The Joint Case Management Statement, due Jan. 10, 2023, should address any matters that may help the litigation to proceed expeditiously and efficiently. If the Interim Co-Lead Class Counsel wishes to suggest any deviations from the timekeeping and expense protocols, they should do so as an Addendum to the Joint Statement. A full-text copy of the Court's Dec. 21, 2022 Order is available at https://tinyurl.com/mjt65jye from Leagle.com. NESTLE PURINA: Fontanez Sues Over Blind-Inaccessible Website ------------------------------------------------------------ Ramon Fontanez, individually, and on behalf of all others similarly situated v. NESTLE PURINA PETCARE COMPANY, Case No. 161059/2022 (N.Y. Sup. Ct., New York Cty., Dec. 26, 2022), is brought challenging the Defendant's discriminatory business practices with regards to the Defendant's Website which contained access barriers that prevented the Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon. The Defendant is an online retail company, who owns and/or operates justrightpetfood.com (Website). Through the Website, Defendant sells its products, such as personalized dog food delivery service. To order the appropriate product, one must take a quiz that personalizes the dog food to your dog. Since the website had access barriers, the Plaintiff was unable to take the quiz and/or purchase the dog food. The Defendant and its and its Website--which is not equally accessible to blind and/or visually impaired consumers--violate the following: the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff brings this action in both an individual capacity and on the behalf of other similarly situated blind and/or visually impaired people who sought to purchase the goods and products that Defendant sells, says the complaint. The Plaintiff is a blind, visually impaired, handicapped person. The Defendant owns and/or operates the Website: justrightpetfood.com which is a place of public accommodation.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Phone: 212/595-6200 Fax: 212/595-9700 Email: wdownes@mizrahikroub.com PERGOLA 36: Bids to Compel Discovery in Smith Suit Granted in Part ------------------------------------------------------------------ In the case, JOSHUA SMITH and CAMERON NILES, individually and on behalf of others similarly situated, Plaintiffs v. PERGOLA 36 LLC, Defendant, Case No. 1:22-cv-4052 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York grants in part and denies in part the Plaintiffs' and the Defendant's cross letter motions to compel discovery. On Nov. 30, 2022, Smith and Niles submitted a letter motion to compel discovery to which Pergola responded on Dec. 5, 2022. The Defendant submitted its own letter motion to compel discovery on Dec. 2, 2022, to which the Plaintiffs responded on Dec. 6, 2022. The Court held a telephone conference on Dec. 17, 2022, during which the Court addressed many of the discovery issues on the record but requested supplemental briefing from both parties. On Dec. 17, 2022, it directed the Plaintiffs to submit additional documents for the Court's in camera review and permitted the Defendant to respond to certain of the issues that the Plaintiffs raised in their supplemental letter briefing. The Plaintiffs submitted the additional documents on Dec. 20, 2022 and the Defendant submitted a letter response on the same day. Judge Liman's Memorandum and Order addresses the remaining issues in the cross-motions to compel the production of documents pending before the Court. The Defendant requests the Plaintiffs produce the following documents: Reservation documents, bills and receipts, credit card statements, text messages, photos, videos, emails, and social media posts concerning or reflecting any evening visits on weekdays, or weekend visits that the Plaintiffs have made to any bars, restaurants, clubs, lounges, nightclubs, dance halls, sports arenas, theatres, and strip clubs (the Venues) since Jan. 21, 2022. The Plaintiffs have agreed to produce reservation records and credit card statements redacted to remove dollar amounts. They have also agreed to provide social media posts made on Instagram but have refused to provide Instagram "stories" (i.e., images and video content posted in a slideshow format) and have refused to produce text messages and emails related to the visits. The Defendant argues that the request is relevant to the Plaintiffs' request for emotional distress damages. Judge Liman grants the Defendant's motion to compel. He finds that the Defendant is not seeking the Plaintiffs' entire social networking history based on a generalized invocation of their claims for emotional distress damages. Rather, it has made a targeted request for social media and electronic information based on a specific allegation of emotional distress and anxiety. The Plaintiffs request that the Defendant search the electronic devices of current bouncers, security personnel, and managers of Pergola for responsive documents. During the Dec. 7, 2022 discovery conference, the Defendant stated that its employees were not provided company electronic devices and that it did not have access to the personal electronic devices that those employees might have used to exchange messages regarding Pergola's business. The Plaintiffs argue that the Defendant has custody and control over these devices. The Defendant has agreed to search the devices of current managers using ESI search terms and to produce responsive documents. It argues that searching the devices of security personnel would constitute an unwarranted invasion of privacy and would be disproportionate to the needs of the case. It has instead agreed to instruct the current security personnel to search for and provide communications exchanged with other security personnel regarding enforcement of the dress code at Pergola and to produce those documents to the Plaintiffs. The Defendant asserts that the Plaintiffs are not entitled to other communications that do not relate to their individual claims. Judge Liman grants the Plaintiffs' motion to compel discovery insofar as the Defendant must produce documents beyond those that mention the Plaintiffs but will not direct how this discovery is conducted. It says the Defendant's argument that the search for responsive documents will invade the privacy of its employees is not sufficient to overcome the Plaintiffs' rights to relevant discovery. The Defendant has searched the devices of its two owners for responsive documents using a list of search terms that has been provided to the Plaintiffs. The Plaintiffs ask that the Defendant expands the search to review documents including the term "Ghetto"; they represent that it recently produced a communication in which one Pergola employee states that entrance to the restaurant was denied to a "ghetto" woman, which the Plaintiffs contend contains negative racial overtones. The Defendant has agreed to conduct another search of previously searched devices for the search term "Ghetto." Accordingly, Judge Liman considers the motion to compel the search moot. The Plaintiffs move to compel the Defendant to search its social media accounts for responsive documents using the same search parameters, arguing that its supplemental production contained an Instagram message with a complaint of race discrimination. They argue that there likely will be other relevant communications on its social media accounts. The Defendant responds that it has already reviewed its Instagram account and produced responsive documents. Judge Liman grants the motion in part and denies it in part without prejudice to renewal. He says there is reason to believe that the Instagram account will also contain communications complaining about race-based discrimination. The Defendant has demanded that the Plaintiff search their social media accounts for responsive documents. It is only fair and proportionate that Defendant does the same. Judge Liman, however, recognizes that this search may be burdensome and disproportionate to the needs of the case at this time. He thus directs the Defendant to search its Instagram messages since December 21, 2021, with the same search terms it used to search other modes of communication. If the search of messages reveals highly relevant information, the Plaintiffs will, after meeting and conferring with the Defendant, be permitted to submit a letter motion requesting that the Court expands the time parameters of the search. The Defendant seeks communications between the two named Plaintiffs concerning this litigation and the allegations of the Complaint. The Plaintiffs resist production on grounds of attorney-client privilege and joint defense privilege. Judge Liman reviewed the seven documents on the Plaintiffs' privilege log dated from May 16, 2022 to Oct. 7, 2022 and one additional document that the Plaintiffs inadvertently left off of the privilege log. He finds that where the communication was not originally made between client and counsel for the purpose of obtaining legal advice, it is not privileged in the first place. With these principles in mind, he concludes that Exhibits 1, 3, 5, 6, 7, and 8 are protected by the common interest privilege and thus need not be produced. Exhibit 2 (once the portions identical to Exhibit 1 are redacted) and Exhibit 4 do not contain references to communications with the Plaintiffs' attorneys. Thus, the common interest privilege cannot save those communications from production. Finally, the Plaintiffs assert privilege with respect to the communications they had with attorneys and support staff of the law firm they retained to represent them after the date of their retainer letter. They have submitted a log in connection with that claim. The log reflects that the communications were made with counsel or with support staff and either conveyed or sought legal advice. So, the documents therefore are protected by attorney-client privilege. For these reasons, Judge Liman grants in part and denies in part the Plaintiffs' and the Defendant's cross letter motions to compel discovery. The Clerk of Court is respectfully directed to close Dkt. Nos. 36, 38, 44, and 45. A full-text copy of the Court's Dec. 21, 2022 Memorandum & Order is available at https://tinyurl.com/mvc5kya4 from Leagle.com. PET PRODUCT: Fontanez Sues Over Blind-Inaccessible Website ---------------------------------------------------------- Ramon Fontanez, individually, and on behalf of all others similarly situated v. PET PRODUCT INNOVATIONS, LLC, Case No. 161060/2022 (N.Y. Sup. Ct., New York Cty., Dec. 26, 2022), is brought challenging the Defendant's discriminatory business practices with regards to the Defendant's Website which contained access barriers that prevented the Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon. The Defendant is an online retail company, who owns and/or operates petppi.com ("Website" or "Defendant's Website"). Through the Website, Defendant sells its products, such as leashes, animal nail clippers, and other pet products. The Defendant and its and its Website--which is not equally accessible to blind and/or visually impaired consumers--violate the following: the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff brings this action in both an individual capacity and on the behalf of other similarly situated blind and/or visually impaired people who sought to purchase the goods and products that Defendant sells, says the complaint. The Plaintiff is a blind, visually impaired, handicapped person. The Defendant owns and/or operates the Website: petppi.com which is a place of public accommodation.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Phone: 212/595-6200 Fax: 212/595-9700 Email: wdownes@mizrahikroub.com PETER ANDREWS ONLINE: Tenzer-Fuchs Files ADA Suit in E.D. New York ------------------------------------------------------------------ A class action lawsuit has been filed against Peter Andrews Online, Inc. The case is styled as Michelle Tenzer-Fuchs, on behalf of herself and all others similarly situated v. Peter Andrews Online, Inc., Case No. 2:22-cv-07840-GRB-ARL (E.D.N.Y., Dec. 23, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Peter Andrews -- https://www.peterandrews.com/ -- offers a wide range of furniture, gifts, and accessories.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 105-13 Metropolitan Avenue Forest Hills, NY 11375 Phone: (718) 971-9474 Email: jonathan@shalomlawny.com PREFERRED FINANCIAL: Bid to Certify Class in Jordan Suit Granted ---------------------------------------------------------------- In the case, JAMES JORDAN, et al., on behalf of themselves and all others similarly situated, Plaintiffs v. PREFERRED FINANCIAL CORPORATION, LLC, and GREG E. LINDBERG, Defendants, Case No. 1:21-CV-914 and 1:22-CV-483 (M.D.N.C.), Judge Catherine C. Eagles of the U.S. District Court for the Middle District of North Carolina grants the Plaintiffs' motions for class certification, with modifications to the class definition. The Plaintiffs are insurance agents and agencies who allege they have contracts with the Preferred, under which Preferred pays them commissions for insurance policies sold to the policyholders by the agents and issued by Colorado Bankers Life Insurance Co. (CBL). They allege that Preferred stopped paying these commissions when CBL was placed into rehabilitation and is liable to them for breach of contract. They also contend that the defendant Greg Lindberg is responsible for Preferred's breach of contract under a piercing-the-corporate-veil theory. The Plaintiffs move to certify a class of all agents who have similarly not been paid since CBL was placed into rehabilitation, to appoint their counsel as the class counsel, and to appoint the named Plaintiffs as the class representatives. The Plaintiffs move to certify a class including: "All persons or entities who (a) at any point during the three (3) year period of time preceding October 21, 2021 through the present, (b) had a contract with PFC related to CBL Policies, (c) earned commissions for the issuance, selling, or servicing of CBL Policies, (d) but have not been paid those commissions on behalf of themselves and the agents acting on their behalf." In the case against Mr. Lindberg, the proposed class definition is almost identical, except for a date change to June 23, 2022. The dates in the proposed class definitions generally match up to three years before the particular suit was filed; the plaintiffs filed the Preferred case on Oct. 22, 2021, and the Lindberg case on June 23, 2022. At a hearing on the motion, the Plaintiffs agreed that the date should be changed to reflect more precisely their claim that commission payments were paid until, and only stopped after, CBL went into rehabilitation in late June 2019. These two cases were consolidated for discovery and trial on Dec. 13, 2022. As a threshold matter, Judge Easgle opines that the Plaintiffs must show that they are members of the proposed class and that the members of the proposed class are readily identifiable and ascertainable "in reference to objective criteria." Neither Preferred nor Mr. Lindberg dispute that the Plaintiffs have met the threshold requirements. Thus, the class members are readily identifiable and ascertainable in reference to objective criteria like business records. Next, Rule 23(a) has four requirements: numerosity, commonality, typicality, and adequacy. These four requirements effectively limit the class claims to those fairly encompassed by the named Plaintiff's claims. The Plaintiffs must also demonstrate that the proposed class satisfies one of the subsections under Rule 23(b). In the case, the Plaintiffs seek to certify the class under Rule 23(b)(3). Rule 23(b)(3) requires that plaintiffs must demonstrate that "questions of law or fact common to class members predominate over any questions affecting only individual members," and that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Eagles concludes that the Plaintiffs have affirmatively met the requirements of Rule 23. The proposed class satisfies the numerosity, commonality, and adequacy of representation requirements, common questions predominate, and class-wide adjudication is the superior method to adjudicate these claims. Accordingly, she grants the Plaintiffs' motions for class certification, with modifications to the class definition. The following class is certified: All persons or entities who (a) at any point after June 27, 2019, through the present, (b) had a contract with Preferred Financial Corporation, LLC, related to Colorado Bankers Life Insurance Company policies, (c) earned commissions for the issuance, selling, or servicing of CBL policies, (d) but have not been paid those commissions on behalf of themselves and the agents acting on their behalf in breach of their contracts with Preferred Financial Corporation, LLC. The following named Plaintiffs are appointed as the class representatives: a. James Jordan b. CBS Insurance, Inc. c. Employers First Choice Insurance Services Inc. d. James Helbig e. Bret Fields f. Target, Inc. g. Lenny Miller h. Chris Benkendorf i. National Benefits Group Midwest LLC j. Michael Tolomei k. Thomas Fletcher l. Certified Financial Services Inc. m. America's Health Care/RX Plan Agency, Inc. n. Michael Nordquist o. Consolidated Financial Group, LLC p. Benefits for America Insurance Services, Inc. q. Plan America Financial Services, Inc. Milberg Coleman Bryson Phillips Grossman, PLLC and Maginnis Howard, PLLC, specifically Matthew E. Lee, Mark. R. Sigmon, Jeremy R. Williams, Jacob M. Morse, Edward H. Maginnis, and Karl S. Gwaltney are appointed as the class counsel. The Plaintiffs were to prepare a proposed class notice and share it with the counsel for the Defendants no later than Jan. 3, 2023. The parties will meet and confer and will file a joint submission on class notice no later than Jan. 13, 2023; the joint notice will contain an agreed-upon proposed notice and brief in support or dueling proposed notices and briefs if the parties do not agree. A full-text copy of the Court's Dec. 21, 2022 Memorandum Opinion & Order is available at https://tinyurl.com/4hsyd4kj from Leagle.com. RESIDENTIAL CAPITAL: Court Rules on Judgment Bids in Drennen Suit ----------------------------------------------------------------- In the case, In re: RESIDENTIAL CAPITAL, LLC, et al., Chapter 11, Debtors. ROWENA DRENNEN, FLORA GASKIN, ROGER TURNER, CHRISTIE TURNER, JOHN PICARD AND REBECCA PICARD, individually and as the representatives of the KESSLER SETTLEMENT CLASS, STEVEN AND RUTH MITCHELL, individually and as the representatives of the MITCHELL SETTLEMENT CLASS, and RESCAP LIQUIDATING TRUST, Plaintiffs v. CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, et al., Defendants, Case No. 12-12020 (MG), (Jointly Administered), Adv. Case No. 15-01025 (DSJ) (Bankr. S.D.N.Y.), Judge David S. Jones of the U.S. Bankruptcy Court for the Southern District of New York: a. grants the Plaintiffs' motions for partial summary judgment and denies the Insurers' motions for partial summary judgment as to the scope of coverage under the Policy; b. grants the Plaintiffs' motions for partial summary judgment and denies the Insurers' motion for partial summary judgment as to the applicability of Exclusion 38; c. denies both the Insurers' motion for partial summary judgment and the Class Plaintiffs' informal request for partial summary judgment as to whether the Policy by its terms covers Losses that result from enhanced damages; d. grants the Excess Insurers' motion for partial summary judgment on the Plaintiffs' breach of contract and consequential damages claims based on the Excess Insurers' exhaustion provisions; e. denies the Insurers' motion for partial summary judgment and the Class Plaintiffs' informal request for partial summary judgment as to whether certain claims or causes of action are time-barred; f. denies the Insurers' motion for summary judgment on the Plaintiffs' claims for consequential damages; g. denies the Kessler Class' motion for partial summary judgment as to whether the Insurers have waived, or are collaterally estopped from raising, any challenges to the reasonableness of the Kessler Settlement amount; h. denies the Kessler Class' motion for partial summary judgment finding said amount reasonable; and i. denies the Insurers' motion for partial summary judgment as to the amount of Loss incurred in connection with the Kessler Settlement. This adversary proceeding was commenced in 2015 and has a long, involved history. Residential Funding Co., LLC ("RFC"), the debtor relevant to this adversary proceeding, was at all relevant times an indirect subsidiary of General Motors Corporation. It operated as a financial services company that, among other things, purchased second mortgage loans issued by several originating lenders ("Originating Banks"), then securitized those loans and sold the resulting mortgage-backed securities to investors. RFC also functioned as the master servicer for the securitized loans after they were purchased and was compensated for that by the investors out of the loan payments, developed and made available to the Originating Banks mortgage-related software, and made warehouse loans to the Originating Banks. The Plaintiffs' claims against RFC arise from certain fees paid, and alleged to be unlawful, by the Class Plaintiffs in connection with second mortgages or subordinate loans issued by the Originating Banks. In 2011, the Kessler Class filed a joint consolidated amended class action complaint against RFC and other defendants in the Kessler Action alleging, inter alia, that RFC was liable for violations of the Real Estate Settlement Practices Act, Truth in Lending Act, Home Ownership and Equity Protection Act ("HOEPA"), and Racketeer Influenced and Corrupt Organizations Act based on loans issued to the Kessler Class by Originating Banks. The Kessler Action was pending when RFC filed its bankruptcy petition in May 2012. The named plaintiffs in the Kessler Action filed proofs of claim against RFC on behalf of the Kessler Class and moved to certify class claims. In November 2013, the Court entered an order certifying the Kessler Class and approving a settlement agreement between RFC and the Kessler Class. The Kessler Settlement provided for, inter alia, a $300 million allowed claim against RFC (the "Kessler Claim") and the assignment of RFC's rights under certain insurance policies to the Kessler Class, in exchange for RFC's release from any other recovery with respect to the Kessler Class' claims. The Mitchell Class plaintiffs commenced the Mitchell Action in 2003 against RFC and others alleging that second mortgages RFC had purchased from one particular Originating Bank, Mortgage Capital Resources Corp., involved certain fees charged to borrowers that violated the Missouri Second Mortgages Loans Act ("MSMLA"), HOEPA, and common law. Following trial, the trial court held that, inter alia, RFC violated the MSMLA, resulting in $4,329,048 in compensatory damages, and approximately $92 million in punitive damages. RFC appealed, and judgment was affirmed as to compensatory damages, and reversed and remanded for retrial on punitive damages. It ultimately paid $15,648,868.12 to satisfy the compensatory damages judgment and related attorneys' fees. When RFC filed for bankruptcy in 2012, RFC and the Mitchell Class had agreed to settle the remanded punitive damages claim for $14.5 million (the "Mitchell Settlement"), but none of that money had been paid. In December 2013, the Court confirmed a Chapter 11 plan which, among other things, approved the Mitchell Settlement, resulting in an allowed claim against the estate for $14.5 million (the "Mitchell Claim"), and assigned the Mitchell Class the right to pursue the Defendants for any insurance proceeds under the applicable insurance policies to satisfy the Mitchell Claim. Judge Jones' Decision decides eleven separate motions for partial summary judgment filed at the close of discovery in a multi-party dispute between two types of claimants -- a liquidating trust that has succeeded to the rights of one of the debtors in a confirmed voluntary Chapter 11 bankruptcy case, and two groups of class-action plaintiffs who hold substantial allowed claims against the estate -- as against multiple insurer defendants who, among them, provided up to $400 million of liability insurance to the debtor. The claimants are proceeding under the authority of the confirmed plan and a related settlement, which together entitled the Class Plaintiffs and the Liquidating Trust to pursue coverage claims that the debtor originally had against its insurers. As assignees of the debtor's insurance rights, the Kessler Class and Mitchell Class seek coverage of their respective allowed claims as losses of the debtor under the insurance policies, while the Trust seeks coverage for the debtor's payment of a compensatory damages judgment in the Mitchell Class' underlying suit and related costs and expenses. The motions addressed by the Decision seek rulings related to: (i) whether the losses resulting from the claims of the Mitchell Class and the Kessler Class are covered under the terms of the insurance policies' provisions defining the scope of their coverage; (ii) if so, whether those insurance claims are barred by the policies' "Exclusion 38," which (as detailed and stated more precisely below) excludes from the policies' coverage certain claims arising from services rendered by insured people or entities that are not a "Professional Liability Assured" as that term is defined in the policies; (iii) whether at least portions of the insurance claims at issue are excluded from the policies' coverage and/or precluded as a matter of law because they arise from awards of punitive damages and/or statutory penalties; (iv) whether claims against the Excess Insurers (those responsible for all but the first $50 million of coverage) are barred by so-called "exhaustion" provisions in the Excess Insurers' policies, which, roughly speaking, state that the Excess Insurers' obligations do not arise until the primary layer of insurance is paid in full or the Primary Underwriters are held liable to pay in full; (v) whether claims based on a variety of specific types of asserted consequential damages are recoverable; (vi) whether certain claims or causes of action are time-barred; (vii) whether the Insurers are entitled to challenge the reasonableness of the allowed claim amount giving rise to the Kessler Class' claims notwithstanding the Court's previous approval of the settlement, in the course of which this Court explicitly determined under the standards applicable to review of class action settlements and Bankruptcy Rule 9019 motions, among other things, that the settlement was fair and reasonable; (viii) even if the Insurers are not precluded from contending that their coverage obligations are not triggered because the settlement for which insurance payment was sought was unreasonable, whether the Court should determine that the Class Plaintiffs are entitled to summary judgment on the ground that no reasonable juror could conclude that the settlement was unreasonable; and (ix) whether the full allowed-claim amount of $300 million of the Kessler Class action claimants constitutes an insured loss, or whether the amount of that loss is limited to the actual cash payment obligation of the estate, where under the parties' Court-approved settlement and the Plan the Kessler Class received an allowed claim of $300 million that by agreement was to be satisfied solely by a cash distribution from the estate of approximately $27 million, coupled with the right to pursue the Insurers for the debtor's insurance coverage rights up to the full allowed amount of the claim, i.e., $300 million. Judge Jones holds as follows: 1. The Plaintiffs are entitled to summary judgment determining that the claims fall within the scope of the policies' coverage, and the unambiguous language of Exclusion 38, which case law instructs must be construed narrowly against the insurer, does not exclude the claims from coverage. Judge Jones further concludes that the Insurers have waived their entitlement to rely on Exclusion 38 through their sustained invocation of other defenses and exclusions while never raising Exclusion 38. Thus, the Insurers' summary judgment motion on these issues is denied. 2. The Insurers are not entitled to summary judgment on their contention that the Plaintiffs are barred from recovering from the Insurers on the portions of the claims that arise from what the Insurers assert are punitive damages and/or statutory penalties, because the policies specify that their scope of coverage is to be determined applying the most broadly permissive relevant source of state law. Delaware law concededly is among the states whose law applies under that provision, and Delaware law does not bar insurance coverage of punitive damages. Judge Jones does not accept the Insurers' contention that a limited public-policy based aspect of New York's choice of law principles calls for deviating from New York's usual willingness to enforce agreements as to what law applies; among other things, New York lacks a sufficiently strong state interest in the matter for its public-policy choice-of-law override to apply here. Further, he says the claims that were allowed to the Class Plaintiffs based on available compensation-heightening measures such as law authorizing the award of treble damages in some circumstances do not constitute the sort of fines or penalties that the policy excludes. 3. The Excess Insurers' policies' wording varies, but they all unambiguously require that the primary layer of insurance be paid in full or that the Primary Underwriters be held liable to pay in full before the Excess Insurers' obligations to pay are triggered. Accordingly, any claim against the Excess Insurers premised on their failure to make payments prior to such time as the Primary Underwriters either paid in full or were held liable to pay in full fails. Thus, the Excess Insurers' summary judgment motion on that issue is granted. 4. As recognized by the Court's prior order allowing the Plaintiffs to amend their complaint, the amendments do not reflect new claims, but instead reflect new allegations and damages demands pled as part of the breach of contract claims already contained in the prior version of the complaint, which are undisputedly timely. Therefore, none of the Plaintiffs' claims or causes of action are time-barred. 5. The Defendants' various legal arguments against the availability of various types of consequential damages are precluded by the law of the case doctrine because they have already been considered and rejected by this Court, and/or they are otherwise unavailing on the merits. The Plaintiffs have identified evidence demonstrating that the parties reasonably dispute certain material facts, including whether the parties contemplated certain types of consequential damages at the time of contracting, whether the Defendants engaged in bad faith, and whether consequential damages are quantifiable or purely speculative. Therefore, summary judgment on that issue is inappropriate. 6. The Kessler Class' motion for partial summary judgment on the issues of whether the Insurers are barred by reason of waiver and/or are collaterally estopped from challenging the reasonableness of the settlement amount is denied. The Insurers took steps to preserve all defenses to claims at the time the Court approved the claim settlement and confirmed the Plan, including with respect to reasonableness, and the Court's approvals were without prejudice to those Insurer defenses. The mere fact that the then-presiding judge found the settlement to be, among other things, reasonable, does not support summary judgment on the Insurers' reasonableness defense. The Court's earlier determination was that it was reasonable to settle the Kessler Class' claims for consideration including an allowed claim amount, a limited but guaranteed cash distribution from the estate, and the opportunity to pursue the Insurers for additional amounts with no guarantee that those collection efforts would succeed. That determination cannot appropriately be leveraged into a binding determination rejecting a defense as to the reasonableness of the resulting overall allowed claim amount for coverage purposes. 7. Judge Jones also denies the separate motion of the Kessler Class for partial summary judgment seeking a determination that the amount of the Kessler Class settlement was reasonable. Reasonableness generally is a triable fact question, and here, although the Kessler Class presents strong arguments and evidence, the Insurers present sufficient evidence and arguments based on the Kessler Class' own proffered evidence to present a genuine dispute of material fact that precludes entry of summary judgment. 8. Finally, Judge Jones denies the Insurers' motion for partial summary judgment seeking a determination that the amount of Loss incurred in connection with the Kessler Settlement -- and, therefore, the amount of damages recoverable -- is capped at $27 million, rather than the full $300 million allowed claim amount. He says it is undisputed that the Insurers are obligated to cover losses which the debtor became legally obligated to pay, and the controlling documents and applicable caselaw demonstrate that the $300 million allowed claim is such an obligation. The parties are to attempt to reach agreement on a form of proposed order consistent with the rulings set forth in JUdge Jones' Decision, and submit it on consent. Failing that, interested parties may submit competing proposed orders for the Court's consideration. The parties also are to contact chambers to schedule a conference at which the Court will discuss appropriate next steps in the litigation. That conference will not occur before January. In view of the impending holidays, although prompt entry of an order would be desirable, the parties may submit their proposed order or orders by Jan. 6, 2023. A full-text copy of the Court's Dec. 21, 2022 Decision is available at https://tinyurl.com/5eukye6s from Leagle.com. PERKINS COIE LLP, Vivek Chopra, Esq. -- vchopra@perkinscoie.com -- Selena Linde, Esq. -- slinde@perkinscoie.com -- Washington, DC, Counsel for ResCap Liquidating Trust. ARNOLD & PORTER KAYE SCHOLER LLP, Kent Yalowitz, Esq. -- kent.yalowitz@arnoldporter.com -- Daniel R. Bernstein, Esq. -- daniel.bernstein@arnoldporter.com -- New York, NY, Counsel for North American Specialty Insurance Company. WILEY REIN LLP, Cara Duffield, Esq. -- cduffield@wiley.law -- Washington, DC, Counsel for Twin City Fire Insurance Company. HINSHAW CULBERTSON LLP, J. Gregory Lahr, Esq. -- glahr@hinshawlaw.com -- Matthew Ferlazzo, Esq. -- mferlazzo@hinshawlaw.com -- Karen Toto, Esq. -- ktoto@wiley.law -- New York, NY, Counsel for Certain Underwriters at Lloyd's of London. WALTERS RENWICK RICHARDS SKEENS & VAUGHAN, P.C., Roy Frederick Walters, Esq. -- FWALTERS@WRRSVLAW.COM -- Kip D. Richards, Esq. -- KRICHARDS@WRRSVLAW.COM -- Karen W. Renwick, Esq. -- KRENWICK@WRRSVLAW.COM -- David M. Skeens, Esq. -- DSKEENS@WRRSVLAW.COM -- Kansas City, MO, Counsel for the Kessler Class and the Mitchell Class. CAHILL GORDON & REINDELL LLP, Thorn Rosenthal, Esq. -- trosenthal@cahill.com -- Taylor Elicegui, Esq. -- telicegui@cahill.com -- New York, NY, Counsel for Swiss Re International S.E. HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER, Sharon F. McKee, Esq. -- smckee@hangley.com -- Philadelphia, PA, Counsel for Steadfast Insurance Company. KAUFMAN DOLOWICH & VOLUCK, LLP, Patrick M. Kennell, Esq. -- pkennell@kdvlaw.com -- New York, NY, Counsel for Continental Casualty Company. TEPTOE JOHNSON LLP, Harry Lee, Esq. -- hlee@steptoe.com -- John O'Connor, Esq. -- joconnor@steptoe.com -- Washington, DC, Counsel for Clarendon National Insurance Company. SAMSUNG ELECTRONICS: Lewis Sues Over Misleading Advertising ----------------------------------------------------------- Antonio Lewis, individually and on behalf of all others similarly situated v. Samsung Electronics America, Inc., Case No. 1:22-cv-10882-JLR (S.D.N.Y., Dec. 26, 2022), is brought seeking damages and an injunction to stop the Defendant's false and misleading advertising practices with regard to its Z Fold 3 smartphone, which provides a significantly larger screen relative to other smartphones through a hinge in the center allowing it to "fold" into the size of a regular phone ("Product"). The Defendant advertises the Product as meeting stringent durability standards, based on rigorous tests, such that its screen can be folded and unfolded at least 200,000 times, which it claims is the number of folds a user would have in five years. However, the testing methodology, endorsed by Bureau Veritas, is flawed and not representative of real-world usage. This is because the goal of the testing was to determine the maximum number of folds before functionality was reduced without regard to real world conditions. Videos show a pause between each fold and unfold sequence, which means no external strain, pressure or heat-generated friction is involved. In normal use, the Product is exposed to dust, debris, sweat, handling, heat, cold and water, which can and often does penetrate the screen protector at the hinge, interfering with the folding mechanism. Even when other entities applied fold tests similar to Defendant's, the Product only sustained 120,000 folds, with significant screen and pixel damage before 20,000 folds. The most important part of the Product is the hinge, which unites its two halves. In a high percentage of screen failures, users will first notice a minor crack, though a majority of devices will immediately suffer a crack running the length of the fold. After the initial crack, a black unresponsive zone will form, sometimes accompanied by a green or white line spanning the length of the screen. The Product is highly susceptible to screen damage including corrupted pixels, through microscopic particles getting under the protective film at the hinge, creating air pockets. Despite the Defendant's awareness of the Product's durability issues, it consistently shifts blame to user error or misuse, such as improper handling of the screen protector, dropping the device, applying pressure to the screen, exposing it to water or other causes. The Defendant consistently fails to honor the one year warranty when a user reports screen damage, requiring them to pay upwards of five hundred dollars. After a user sends in their device for repair, they can be without their phone for over a month, without any "loaner" phone, which they are forced to buy on their own. This process takes so long because the extent of the damaged screens was greater than Defendant expected, such that there is a shortage of replacement parts. Even third-party repair shops Defendant has contracted with are not trained or equipped to adequately repair the damaged screens, often due to Defendant's failure to supply them necessary parts and instructions. As a result of the false and misleading representations, the Product is sold at a premium price, starting at $1,799 when first released in late 2021, which has declined slightly with release of newer models, excluding tax and sales, says the complaint. The Plaintiff purchased the Product between late 2021 and the middle of 2022. The Defendant is the global leader in the development of foldable phones, which allow significantly larger screens because they can be folded to a regular size phone.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Phone: (516) 268-7080 Email: spencer@spencersheehan.com SHARP HEALTHCARE: Cousin Suit Removed to S.D. California -------------------------------------------------------- The case styled as Hannah Cousin, individually and on behalf of all others similarly situated v. Sharp Healthcare, Case No. 37-02022-0047290-CU-MC-CTL was removed from the San Diego County Superior Court, to the U.S. District Court for the Southern District of California on Dec. 23, 2022. The District Court Clerk assigned Case No. 3:22-cv-02040-H-DDL to the proceeding. The nature suit is stated as Other P.I. for Personal Injury. Sharp HealthCare -- https://www.sharp.com/ -- is San Diego's health care leader with hospitals in San Diego, affiliated medical groups, urgent care centers and a health plan.[BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. CARLSON LYNCH LLP 1350 Columbia Street, Suite 603 San Diego, CA 92101 Phone: (619) 762-1910 Email: todd@lcllp.com The Defendant is represented by: Alexander Vitruk, Esq. Teresa Carey Chow, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025 Phone: (310) 820-8800 Fax: (310) 820-8859 Email: tchow@bakerlaw.com SOHO ART MATERIAL: Sanchez Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Soho Art Material, Inc. The case is styled as Randy Sanchez, on behalf of himself and all others similarly situated v. Soho Art Material, Inc., Case No. 1:22-cv-07851 (E.D.N.Y., Dec. 26, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Soho Art Material, Inc. -- https://sohoartmaterials.com/ -- is a popular retailer selling a range of art supplies for painters, sculptors & printmakers.[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 SYNERGY COMPANY: Pena Sues Over Blind-Inaccessible Website ---------------------------------------------------------- Waleska Pena, individually, and on behalf of all others similarly situated v. THE SYNERGY COMPANY OF UTAH, LLC, Case No. 727059/2022 (N.Y. Sup. Ct., Queens Cty., Dec. 26, 2022), is brought challenging the Defendant's discriminatory business practices with regards to the Defendant's Website which contained access barriers that prevented the Plaintiff and other visually impaired and/or legally blind individuals from purchasing products thereon. The Defendant is an online retail company, who owns and/or operates thesynergycompany.com ("Website" or "Defendant's Website"). Through the Website, Defendant sells its products, such as superfoods, extracts, vitamins, and formulas that all assist in healing. The Defendant and its and its Website--which is not equally accessible to blind and/or visually impaired consumers--violate the following: the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. The Plaintiff brings this action in both an individual capacity and on the behalf of other similarly situated blind and/or visually impaired people who sought to purchase the goods and products that Defendant sells, says the complaint. The Plaintiff is a blind, visually impaired, handicapped person. The Defendant owns and/or operates the Website: thesynergycompany.com which is a place of public accommodation.[BN] The Plaintiff is represented by: William J. Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Phone: 212/595-6200 Fax: 212/595-9700 Email: wdownes@mizrahikroub.com SYNGENTA CROP: Meadows Sues Over Unlawful Anticompetitive Scheme ---------------------------------------------------------------- Clint Meadows, Michael Shows, and Matt Taylor, on behalf of themselves and all others similarly situated v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Case No. 1:22-cv-01128 (M.D.N.C., Dec. 26, 2022), is brought involving an anticompetitive scheme by Defendants, two manufacturing giants in the crop protection product industry, to illegally block rivals from the market and insulate themselves from competition. The Defendants have entered into exclusionary "loyalty agreements" with substantially all of their major customers that deter those customers from purchasing products from manufacturers other than Defendants. The effect of those exclusionary agreements has been to lock rival manufacturers out of the market and force farmers like Plaintiffs to pay artificially inflated prices for the crop protection products that are essential to their business. Specifically, each Defendant use so-called "loyalty programs" to unlawfully protect its market position. Under the loyalty programs, Defendants pays substantial sums of money to distributors--the middlemen who purchase directly from manufacturers before the product is sold to farmers--to discourage those distributors from purchasing specified active ingredients from generic manufacturers. Those exclusionary payments, which take the form of rebates, are conditioned on the distributors making a high percentage of their purchases of specified active ingredient from the Defendant producing that product. The value of the rebates is so substantial--and the loyalty thresholds are so high--that distributors are compelled to buy no more than a small fraction of their inventory from generic manufacturers. The Defendants also ensure that distributors meet the loyalty thresholds by threatening to punish, and actually punishing, distributors that fail to purchase sufficient volumes of products from the Defendants. The punishments include canceling contracts, temporarily denying the distributors access to certain products, and declining to supply the distributor with needed products. Each the Defendant has entered into exclusionary loyalty agreements with virtually all of the leading distributors. As a result of these agreements, distributors purchase only minimal volumes of covered crop protection products from generic manufacturers. And without access to the major distributors, generic manufacturers have no viable path to compete with the Defendants in the market for crop protection products containing active ingredients covered by the loyalty provisions. Each Defendant has therefore effectively locked its competitors out of these markets. The consequences of this market foreclosure are severe. Defendants have leveraged the lack of competition in the market to raise prices to artificially inflated levels. Due to the Defendants' exclusionary conduct, farmers have paid approximately 20% higher prices--if not more--for certain crop protection products than they would have paid in a competitive market. There is also little innovation in these markets, and farmers often have no choice but to purchase their products from the Defendants. The Defendants' anticompetitive conduct has thus forced the Plaintiffs and other farmers to pay millions of dollars more in supracompetitive prices while at the same time restricting their ability to benefit from new and innovative products. The Plaintiffs and other farmers will continue to suffer from these harmful effects until Defendants' exclusionary and anticompetitive conduct is brought to an end and competition is restored to the market, says the complaint. The Plaintiffs purchased Syngenta/Corteva products at issue. Syngenta Crop Protection AG is a corporation organized under the laws of Switzerland, with its headquarters in Basel, Switzerland.[BN] The Plaintiff is represented by: Daniel L. Brockett, Esq. Steig D. Olson, Esq. Sami H. Rashid, Esq. Anais Berland, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010-1601 Phone: (212) 849-7000 Fax: (212) 849-7100 Email: danbrockett@quinnemanuel.com steigolson@quinnemanuel.com samirashid@quinnemanuel.com anaisberland@quinnemanuel.com - and - Jeremy D. Andersen, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017 Phone: (213) 443-3000 Fax: (213) 443-3100 Email: jeremyandersen@quinnemanuel.com - and - Sarah Vogel, Esq. SARAH VOGEL LAW OFFICE 1203 N 2nd St Bismarck, ND 58501 Phone: 701 400 6210 Email: sarahvogellaw@gmail.com - and - M. Stephen Dampier, Esq. THE DAMPIER LAW FIRM, P.C. 11 N. Water Street, Suite 10290 Mobile, AL 36602 Phone: (251) 929-0900 Fax: (888) 387-1930 Email: stevedampier@dampierlaw.com - and - Michael B. Eisenkraft, Esq. Mikaela Pyatt, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, NY 10005 Phone: (212) 838-0177 Fax: (212) 838-7745 Email: meisenkraft@cohenmilstein.com mpyatt@cohenmilstein.com - and - Daniel H. Silverman, Esq. Leonardo Chingcuanco, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue NW, 5th Floor Washington, DC 20005 Phone: (202) 408-4600 Fax: (202) 408-4699 Email: dsilverman@cohenmilstein.com lchingcuanco@cohenmilstein.com - and - Manuel J. Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 11780 U.S. Highway One, Suite N500 Palm Beach Gardens, FL 33408 Phone: (561) 515-2604 Fax: (561) 515-1401 Email: jdominguez@cohenmilstein.com SYNGENTA CROP: R N D Hillside Sues Over Sherman Act Violation ------------------------------------------------------------- R N D Hillside Farms Co., on behalf of itself and all others similarly situated v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Case No. 1:22-cv-01127 (M.D.N.C., Dec. 23, 2022), is brought to recover actual and compensatory damages, treble damages, interest, costs, and attorneys' fees for the injury caused by the Defendants' wrongful conduct against the Defendants for violating the Sherman Act. In the latest-revealed scheme to take advantage of farmers in the United States, Defendants have implemented special "loyalty programs" in connection with key active ingredients that are incorporated into products that farmers use to protect crops from damage caused by insects, weeds, and fungi ("pesticides"). Under these loyalty programs, Defendants provide payments to distributors in exchange for selling certain amounts of Defendants' pesticides and restricting sales of generic pesticides made by competing manufacturers. Defendants implement and enforce these loyalty programs to ensure that manufacturers of generic pesticides are unable to effectively distribute their products, which preserves Defendants' control of the market and prevents price competition. As reflected in a recent complaint filed by the Federal Trade Commission (the "FTC") and ten state Attorneys General, the Defendants' scheme has succeeded. In order to obtain Defendants' loyalty payments, distributors severely curtail sales of, and in some cases wholly refrain from selling, pesticides that compete with those manufactured by Defendants. Without these distributors, competing manufacturers cannot effectively sell their pesticides and farmers are forced to purchase Defendants' higher-priced products. As a result, farmers face decreased innovation, fewer choices, and increased prices totaling many millions of dollars in overcharges. Farmers benefit from reduced prices caused by the availability of generic pesticides. Nevertheless, Defendants have designed and implemented "loyalty programs" to limit generic competition long after regulatory and patent exclusivity periods expire. On September 29, 2022, following an investigation, the FTC filed a complaint against Defendants alleging that Defendants' loyalty programs foreclose generic competition and result in higher prices for farmers in violation of federal and state antitrust laws. As revealed by the FTC's investigation, Defendants' loyalty programs provide that Defendants will make payments in the form of "rebates" to distributors based on their purchases of Defendant-branded pesticides—but there is a condition: distributors and retailers must limit their purchases of generic pesticides to a set percentage. Defendants both reward participation in their loyalty programs and punish non-compliance. Indeed, Defendants ensure that Distributors profit more from accepting Defendants' "rebates" payments than they would from distributing a higher volume of lower-priced, generic pesticides. Only a small number of distributors dominate the sale of pesticides in the United States. Since they profit from participating in Defendants' loyalty programs and face significant financial consequences if they do not, these distributors readily exclude generic pesticides from their distribution lists. As a result, generic competitors are almost entirely foreclosed from efficiently distributing their products. Prices remain high and farmers pay millions of dollars more than they otherwise would have for pesticides containing Defendants' ingredients. Defendants, on the other hand, are able to maintain high prices and dominant market positions years after their exclusivity expires. While Defendants and their distributors benefit, farmers are left to pay supracompetitive prices for pesticides and are deprived of access to cheaper generic alternatives. As a result of Defendants' conduct, Defendants have restrained competition, maintained unlawful monopolies, and harmed America's farmers, reducing choices for these farmers and costing them millions of dollars in overcharges. Plaintiff and the Class bring this antitrust suit under federal antitrust laws, state antitrust and consumer protections laws, and for unjust enrichment to redress that wrongful conduct, says the complaint. The Plaintiff R N D Hillside Farms Co. is a resident of Chautauqua County, New York who purchased the herbicide Halex GT. Syngenta Crop Protection AG is headquartered in Basel, Switzerland and is organized and existing under the laws of Switzerland.[BN] The Plaintiff is represented by: Gagan Gupta, Esq. Stuart M. Paynter, Esq. Sara C. Willingham, Esq. PAYNTER LAW, PLLC 106 S. Churton Street, Suite 200 Hillsborough, NC 27278 Phone: (919) 729-2149 Email: ggupta@paynterlaw.com stuart@paynterlaw.com swillingham@paynterlaw.com - and - Allan Steyer, Esq. D. Scott Macrae, Esq. Suneel Jain, Esq. STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor San Francisco, CA 94104 Phone: (415) 421-3400 Email: asteyer@steyerlaw.com smacrae@steyerlaw.com sjain@seyerlaw.com - and - Arthur Bailey, Esq. Marco Cercone, Esq. RUPP BAASE PFALZGRAF CUNNINGHAM LLC 111 W. 2nd Street, Suite 1100 Jamestown, NY 14701 Phone: (716) 664-2967 Email: bailey@ruppbaase.com cercone@ruppbaase.com TATTOOED CHEF: Mihaylov Sues Over False and Misleading Statements ----------------------------------------------------------------- Dinko Mihaylov, Individually and on behalf of all others similarly situated v. TATTOOED CHEF, INC., SALVATORE GALLETTI, and STEPHANIE DIECKMANN, Case No. 2:22-cv-09311 (C.D. Cal., Dec. 23, 2022), is brought on behalf of persons or entities who purchased or otherwise acquired publicly traded Tattooed Chef securities between March 20, 2021 and October 12, 2022, inclusive (the "Class Period") seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 as a result of the Defendants' materially false and/or misleading statements which resulted to the precipitous decline in the market value of the Company's common shares. On March 19, 2021, after market hours, Tattooed Chef filed with the SEC its 2021 Annual report on Form 10K for the year ended December 31, 2020 (the "2020 Annual Report"). On May 18, 2021, the Company filed with the SEC its 2021 First Quarter report on Form 10-Q for the year ended March 31, 2021 (the "1Q21 Report"). On August 16, 2021, the Company filed with the SEC its second quarter report on Form 10-Q for the period ended June 30, 2021 (the "2Q21 Report"). The 2Q21 Report revealed the Company reported a net revenue of $50,716,000 three months ended June 30, 2021 and $103,398,000 six months ended June 30, 2021, and a net loss of $53,196,000 three months ended June 30, 2021 and $61,348,000 six months ended June 30, 2021. On November 22, 2021, the Company filed with the SEC its quarterly report on Form 10-Q for the period ended September 30, 2021 (the "3Q21 Report"). The 3Q21 Report revealed the Company reported a net revenue of $58,780,000 three months ended September 30, 2021 and $161,972,000 nine months ended September 30, 2021, and a net loss of $8,174,000 three months ended September 30, 2021 and $70,095,000 nine months ended September 30, 2021. On March 16, 2022, the Company filed with the SEC its annual report and fourth quarter and annual results on Form 10-K for the period ended December 31, 2021 (the "Annual Report"). The Annual Report revealed the Company reported a net revenue of $213,430,000 and a net loss of $87,404,000. The statements were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: Tattooed Chef continuously downplayed its serious issues with internal controls; Tattooed Chef's financial statements from March 31, 2021 to the present included "certain errors" such as overstating revenue and understating losses; as a result, Tattooed Chef would need to restate its previously filed financial statements for certain periods; and as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. Then on October 12, 2022, after market hours, the Company announced that it would restate its financial statements from March 31, 2021 to the present and revealed for the first time the revenue was overstated by $213,000 and the net loss was understated by $90,000 on the 1Q21 Report. On the 2Q21 Report, the revenue was overstated by $446,000 three months ended June 30, 2021 and $659,000 six months ended June 30, 2021 and the net loss was understated by $4,276,000 three months ended June 30, 2021 and $4,366,000 six months ended June 30, 2021. On the 3Q21 Report, the revenue was overstated by $425,000 three months ended September 30, 2021 and $878,000 nine months ended September 30, 2021 and the net loss was understated by $372,000 three months ended September 30, 2021 and $4,165,000 nine months ended September 30, 2021. On the Annual Report, the revenue was overstated by $5,436,000 ended December 31, 2021. The Company also made numerous other changes in financial statements that revealed the extent of internal control weaknesses. On this news, Tattooed Chefs' share price fell $0.44 per share, or 9.8%, from its close on October 12, 2022 to open on October 13, 2022 at $4.05 per share, damaging investors. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Tattooed Chef securities during the Class Period and was economically damaged thereby. Tattooed Chef, Inc. is a plant-based food company that offers sourced plant-based food. Its plant-based products are available in the frozen food sections of national retail food stores across the United States as well as on its e-commerce site.[BN] The Plaintiff is represented by: Laurence M. Rosen (SBN 219683) THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Phone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com TOYNK TOYS: Zarzuela Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Toynk Toys, LLC. The case is styled as Jose Zarzuela, individually, and on behalf of all others similarly situated v. Toynk Toys, LLC, Case No. 1:22-cv-10875 (S.D.N.Y., Dec. 25, 2022). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Toynk Toys -- https://www.toynk.com/ -- offers collectibles, toys, costumes, home goods, and more from every fandom universe.[BN] The Plaintiff is represented by: William Downes, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: wdownes@mizrahikroub.com TRAVEL GUARD GROUP: Allen Sues Over Deceptive Online Marketing -------------------------------------------------------------- Stephanie Allen, on behalf of herself, the general public, and those similarly situated v. TRAVEL GUARD GROUP, INC., AIG TRAVEL, INC., and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Case No. 3:22-cv-06005 (W.D. Wash., Dec. 23, 2022), is brought against the Defendants to seek redress for Defendants' unlawful, unfair, and deceptive online marketing and sale of insurance policies with a hidden charge for assistance services. The Defendants sell the insurance and assistance services together under the brand name "Travel Guard." On major travel websites, including united.com, expedia.com, travelocity.com, and orbitz.com, Defendants purport to make a straightforward offer to consumers: insurance for airfare and travel arrangements consumers purchase on those websites. However, Defendants secretly and unfairly charge unsuspecting consumers additional fees, on top of the calculated premium, without disclosing that they are charging those fees. In places other than the checkout screens where the transactions occur, Defendants try to justify those fees by representing that the fees are for a supposed assistance service. That service purports to allow insureds to spend time on the telephone with Defendants' customer service representatives to request information about various topics, such as directions, weather, restaurants, hotels, new travel arrangements, and possibly medical needs. But consumers are unaware of any such service and they do not want it; and they certainly do not want to pay what Defendants charge for it. Under Washington law, Defendants must file their insurance rates with the insurance commissioner and cannot charge any rates or fees above their approved filings. In addition, an insurance agent such as Travel Guard Group is not permitted to collect a fee or compensation from consumers in connection with the insurance unless, prior to the sale: it provides written disclosure of the compensation it receives from both the consumer and the insurer and the consumer provides written consent to the fees and commissions at issue. Here, the Defendants present an offer of insurance for a single price that, unbeknownst to consumers, consists of both an insurance premium and a required fee for add-on services. The bundled fee for assistance services was not filed with or approved by the insurance commissioner. Travel Guard Group does not provide written disclosure of its compensation to insureds and, of course, insureds do not sign any such disclosures. In sum, the Defendants have devised a scheme to circumvent insurance laws, and the assistance service is just a pretext to collect illegal fees at the expense of millions of consumers. The Plaintiff brings this action on behalf of herself, the general public, and similarly situated individuals, seeking a judgment against the Defendants that would, among other things: prohibit Defendants from charging mandatory and/or undisclosed fees (in addition to premiums) for "assistance" services in connection with the insurance purchases; require the Defendants to plainly and truthfully disclose all premiums, fees, and charges to consumers prior to their online purchase of insurance; and require Defendants to pay Plaintiffs and class members restitution or damages, says the complaint. The Plaintiff visited the website of Expedia.com to purchase airfare, hotel accommodations, and a rental car reservation. Travel Guard Group is the licensed insurance agent for NUFIC in Washington and markets and sells Travel Guard insurance policies and assistance services to the public.[BN] The Plaintiff is represented by: Stephen M. Raab, Esq. GUTRIDE SAFIER LLP 113 Cherry Street, #55150 Seattle, WA 98140 305 Broadway, 7th Floor New York, NY 10007 Phone: (415) 639-9090 x109 Email: stephen@gutridesafier.com TROY A. SAMSON, SR: Bid for Sentence Reduction in Suit v. BOP Nixed ------------------------------------------------------------------- In the case, UNITED STATES OF AMERICA, Plaintiff v. TROY ANTHONY SAMSON, SR., Defendant, CR. NO. 21-00046 JAO (D. Haw.), Judge Jill A. Otake of the U.S. District Court for the District of Hawaii denies without prejudice the Defendant's Motion for Sentence Reduction. On April 5, 2021, the Government filed an Information against the Defendant, alleging one count of Conspiracy to Distribute and Possess with Intent to Distribute 50 grams or more of a mixture or substance containing methamphetamine, a violation of 21 U.S.C. Section 846. On April 21, 2021, the Defendant signed a Waiver of Indictment and entered into a plea agreement, admitting that he was guilty of the charge. On Oct. 27, 2021, the Court sentenced the Defendant to 47 months in prison and five years of supervised release, which was a significant downward departure and variance from an advisory range of 87 to 108 months. The Defendant is incarcerated at the Federal Correctional Institution at Lompoc, a low security institution, and is expected to be released on Feb. 1, 2024 As stated in the Government's opposition to the Motion, the Defendant has an extensive prior criminal record that includes eight felony convictions and 21 misdemeanor convictions. Several of these crimes involved firearms, domestic violence, or threats of violence. The Defendant does not appear to have engaged in any violations while at Lompoc. On Sept. 2, 2022, the Defendant requested compassionate release from the warden at Lompoc based on his medical conditions and the purported inadequacy of the medical treatment he receives there. According to the Government, the warden denied the request. The Defendant filed the Motion on Oct. 21, 2022 and the Government responded on Nov. 9, 2022. On Nov. 23, 2022, the Defendant filed a reply. His relevant medical records were filed under seal by both parties with the Court's permission. As of this writing, Lompoc has one active COVID-19 case among inmates and zero among staff. Moreover, 2,355 inmates have received the initial doses of the COVID-19 vaccine; while this figure may encompass inmates who have since been released from Lompoc, that Lompoc's current population is only slightly over 1,000 inmates suggests that the rate of inmate inoculation at Lompoc is high. The Defendant challenges Lompoc's compliance with Federal Bureau of Prisons (BOP) policies. He asserts, for example, that masking, social distancing, contact tracing practices, and outbreak notifications threaten inmate health. He does admit that, if an inmate tests positive, the inmate is quarantined for a period of two to four weeks. The Defendant also asserts that Lompoc is in violation of a court order arising in a COVID-19 class-action lawsuit. The Defendant seeks compassionate release based on a combination of his health and the COVID-19 risks at Lompoc associated with his health, and Lompoc's handling of the COVID-19 pandemic, including its alleged violation of the settlement agreement in the class action matter. Judge Otake states that the Defendant bears the burden of establishing the extraordinary and compelling circumstances that would justify compassionate release. She says it is undisputed that Defendant has multiple conditions that put him at a higher risk for serious complications if he were to contract COVID-19. He has, however been fully vaccinated and boosted. In combination, the Defendant's health conditions make him more vulnerable to serious complications from COVID-19 than a healthy person, but his vaccination status alleviates that risk significantly. On this record, Judge Otake concludes that the Defendant's current health status, combined with Lompoc's vaccination rate and current rate of COVID-19 infections, do not amount to extraordinary and compelling circumstances to consider reducing the sentence. Her finding is without prejudice to the possibility that, in the future, the Defendant may be able to offer evidence that circumstances have changed warranting reconsideration of this decision. For these reasons, Judge Otake denies the Motion without prejudice. A full-text copy of the Court's Dec. 21, 2022 Order is available at https://tinyurl.com/2ududxej from Leagle.com. TUYA INC: Lead Plaintiff and Counsel Named in Lian Securities Suit ------------------------------------------------------------------ In the case, XIAOMENG LIAN, individually and on behalf of all others similarly situated, Plaintiff v. TUYA INC., et al., Defendants, Case No. 22 Civ. 6792 (JPC) (S.D.N.Y.), Judge John P. Cronan of the U.S. District Court for the Southern District of New York appoints Kyle Nelson and Jiyi Qiu as the Lead Plaintiff and Robbins Geller and Glancy Prongay & Murray LLP as the Lead Counsel. The Complaint in this putative class action alleges that a publicly traded corporation, Tuya, nine of its executives, and its initial public offering ("IPO") underwriters violated the Securities Act of 1933 by filing a registration statement in connection with a March 2021 IPO of American Depository Shares ("ADSs") that contained materially false and misleading statements and omissions. On Aug. 9, 2022, the same date the Complaint was filed, the law firm of Robbins Geller Rudman & Dowd LLP disseminated a press release through Business Wire, announcing that the action had been commenced and describing the allegations. As explained in the press release, any member of the purported class could have moved the Court for appointment as lead plaintiff by Oct. 11, 2022. Three motions were timely filed. One motion sought the appointment of Jeronimo Ortiz as lead plaintiff and Levi & Korsinsky, LLP as lead counsel. The second motion sought the appointment of Mi Yuanshan as lead plaintiff and Pomerantz LLP as lead counsel. The third motion sought the appointment of Kyle Nelson and Jiyi Qiu as lead plaintiff and Robbins Geller and Glancy Prongay & Murray LLP as lead counsel. Ortiz subsequently filed a notice of non-opposition to the other two motions. Judge Cronan explains that the Private Securities Litigation Reform Act of 1995 ("PSLRA") directs that, in a class action arising under the Securities Act of 1933, 15 U.S.C. Section 77a et seq., a district court will appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members, whom the law refers to as the "most adequate plaintiff." It further articulates the procedures for a court to identify the most adequate plaintiff, which entails "a presumption that the most adequate plaintiff" is the "person or group of persons" that satisfies three conditions. First, the most adequate plaintiff must have either filed the complaint or moved for appointment as lead plaintiff. Second, the most adequate plaintiff must, in the court's determination, have the largest financial interest in the relief sought by the class. Third, the most adequate plaintiff must otherwise satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. IAnother member of the purported plaintiff class may rebut the most adequate plaintiff presumption by "proof that the presumptively most adequate plaintiff" either "will not fairly and adequately protect the interests of the class" or "is subject to unique defenses that render such plaintiff incapable of adequately representing the class." Under the statute, "not later than 60 days after the date on which the notice advising members of the purported class is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class. As noted, that notice was published on Aug. 9, 2022, making motions due by Oct. 11, 2022. The Yuanshan Motion and the Nelson and Qiu Motion were filed on that deadline. By moving in a timely manner for appointment as lead plaintiff, Judge Cronan holds that both (1) Yuanshan and (2) Nelson and Qiu satisfy the first requirement for the most adequate plaintiff presumption. Turning to the second requirement, the two movants disagree as to who possesses the largest financial interest in the relief sought by the class. An initial question is whether to aggregate Nelson's and Qiu's financial interests. Judge Cronan finds it appropriate to aggregate Nelson and Qiu's financial interest in assessing the second requirement of the most adequate plaintiff presumption. The Yuanshan Motion contends that Yuanshan purchased, and retains, 91,000 Tuya ADSs at a total cost of $519,750 and suffered a loss $354,900 in connection with these purchases. The Nelson and Qiu Motion states that Nelson and Qiu spent $635,117.71 on 56,560 shares, yet sold 31,560 of those shares during the class period for $173,976.80, resulting in a net expenditure of $461,140.91, and experienced a total net loss of $417,387.56. Thus, Yuanshan purchased a greater gross and net number of shares and spent a larger amount of net funds to do so, whereas Nelson and Qiu suffered a greater net financial loss. Ultimately, Judge Cronan concludes that Yuanshan's larger number of purchased and retained shares and greater net expenditures on those shares do not overcome the nearly 15% higher loss suffered by Nelson and Qiu in assessing the respective financial interests, mindful that net financial loss is the "most compelling" of the Lax factors. With Nelson and Qiu having established the largest financial interest, Judge Cronan turns to whether the Nelson and Qiu group also meets the requirements of Rule 23. The Rule imposes two requirements that are relevant here: the representative party's claims and defenses must be "typical of the claims or defenses of the class" and the party must "fairly and adequately protect the interests of the class." The Nelson and Qiu group satisfies both, Judge Cronan holds. He finds that Nelson and Qiu's claims do not differ in any material respect from those of any other member of the class: like the rest of the class, they allege that they purchased Tuya ADSs in or traceable to the Tuya IPO, were negatively affected by the Defendants' alleged false and misleading statements and omissions, and suffered damages. With respect to the second consideration, Judge Cronan is aware of no condition that would give rise to a conflict between Nelson and Qiu's interests and the interests of other class members: all seek to maximize the recovery paid by the Defendants for their alleged misrepresentations. All considered, he determines that Nelson and Qiu have made a prima facie showing of adequacy for purposes of Rule 23. Thus, Nelson and Qiu satisfy the PSLRA's requirements to trigger the presumption that they are the most adequate plaintiff: they have moved to be appointed lead plaintiff, have the largest financial interest in the relief sought by the class, and both advance claims typical of the class and have shown that they will fairly and adequately protect the interests of the class. Having been appointed the Lead Plaintiff, Nelson and Qiu are vested with the authority to select lead counsel for the class. For that reason, courts routinely grant their approval when a lead plaintiff selects as lead counsel a law firm experienced in the type of class actions for which it has been retained. Judge Cronan has reviewed Robbins Geller's and Glancy Prongay & Murray LLP's firm resumes, which set forth their extensive experience representing plaintiffs in class actions and profile the partners and other attorneys who have led those representations. Consequently, he grants approval for Nelson and Qiu's choice of lead counsel. Judge Cronan, therefore, appoints Nelson and Qiu as the Lead Plaintiff and Robbins Geller Rudman & Dowd LLP and Glancy Prongay & Murray LLP as the Lead Counsel. The Defendants will confer with the Lead Plaintiff regarding a proposed schedule for any amendment to the Complaint and the Defendants' responses to the Complaint or an amended complaint. The parties will submit a status update to the Court by Jan. 6, 2023. The Clerk of Court is respectfully directed to close the motions pending at Docket Numbers 23, 27, and 30. A full-text copy of the Court's Dec. 21, 2022 Order is available at https://tinyurl.com/4rp94rjy from Leagle.com. UBER TECHNOLOGIES: Bid to Compel Arbitration in Golightly Suit OK'd ------------------------------------------------------------------- In the case, GOLIGHTLY, on behalf of himself and all others similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC., et al. Defendants, Case No. 21-cv-3005 (LJL) (S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the Southern District of New York grants Uber's motion to compel individual arbitration and stays the action with respect to Job Golightly's claims against Uber. On April 8, 2021, Job Golightly initiated the present action through the filing of a class action complaint. The Plaintiff is a Black resident of the Bronx, New York who worked as a driver for Uber from 2014 until August 2020. In August of 2020, he was deactivated from Uber's driving platform, without notice, process, or further communication, after Uber discovered, through a background check, that he had a 2013 misdemeanor speeding ticket from Virginia. If the Plaintiff had received the same speeding ticket in New York, it would not have been characterized as a misdemeanor. The Plaintiff brings a number of claims, both on behalf of himself and others, asserting that Uber's actions violate Plaintiff's and other drivers' rights under New York City Human Rights Law ("NYHRL") and the federal and New York Fair Credit Reporting Acts. Specifically, he alleges that Uber's unlawful policy of using criminal history to summarily deactivate current drivers from its labor platform or reject new drivers without even attempting to comply with the Fair Chance Act process disparately impacts hundreds of Black and Latinx individuals, like Mr. Golightly, who drove or hoped to drive for Uber, and who have disproportionately higher rates of criminal history due to the overcriminalization of communities of color. On Jan. 7, 2020, however, the Plaintiff entered into a Jan. 6, 2020 Platform Access Agreement (the "2020 PAA") through Uber's application for drivers in order to continue to provide transportation services for Uber. The 2020 PAA contains an optional arbitration clause that purports to cover this dispute; the Plaintiff did not opt out. That arbitration clause includes a class action waiver. The parties agree that the Federal Arbitration Act ("FAA") governs the arbitration provision unless the Plaintiff demonstrates that he is exempt from the FAA pursuant to the residual clause of Section 1 of the FAA. The Plaintiff initiated this action through the filing of a complaint on April 8, 2021, asserting claims against Uber and Checkr, Inc. On June 2 and 16, 2021, Checkr and Uber, respectively, filed letters to inform the Court that they intended to move to compel arbitration. On June 23, 2021, the parties filed a proposed case management plan. On June 30, 2021, the Court issued an order allowing the Plaintiff to conduct limited discovery in the form of document requests and interrogatories in support of its argument that it was exempted from application of the FAA pursuant to Section 1 of the FAA. The Order also permitted the Defendants to move to stay all remaining discovery in conjunction with their consolidated motion to compel arbitration and stayed Plaintiff's time to respond to any motion to compel arbitration pending a ruling on the motion to stay discovery. On Aug. 4, 2021, Checkr was voluntarily dismissed from the action, leaving Uber as the only remaining defendant. On July 19, 2021, Uber moved to compel individual arbitration, dismiss the lawsuit (or alternatively, to strike the Plaintiff's class allegations), and stay discovery. In that motion, Uber argued that the Plaintiff's claims are subject to arbitration and are not exempt under Section 1 of the FAA as a matter of law. On Aug. 11, 2021, the Court issued an Opinion and Order denying Uber's motion to stay discovery. It concluded that Uber's request for arbitration could not be determined based on the allegations of the complaint and the documents incorporated therein, as it ultimately depended on whether the Plaintiff was a "transportation worker" for purposes of the residual clause. The Court noted that it would return to Uber's motion to compel arbitration following limited discovery. Limited discovery was conducted. On June 6, 2021, the Court asked the parties to file letter briefs addressing the impact, if any, on the pending motion to compel arbitration of the Supreme Court's recent decision in Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783, 1784 (2022). On June 13, 2022, both parties filed letter motions addressing Saxon. Judge Liman opines that the fundamental question at issue is whether the Plaintiff belongs to a class of workers engaged in foreign or interstate commerce, such that he is exempt from the FAA pursuant to Section 1. The parties do not dispute that Uber drivers are transportation workers for purposes of Section 1 of the FAA. Instead, they largely dispute whether Uber drivers are transportation workers "engaged in foreign or interstate commerce" based on the facts that they conduct some interstate trips and drive people to and from airports, train stations, and other primarily interstate modes of travel. Based on the evidence in front of the Court, Judge Liman concludes that Uber drivers are not a "class of workers engaged in foreign or interstate commerce" within Section 1 of the FAA. Thus, he says the Plaintiff's claims are not exempt from the FAA pursuant to the residual clause and Uber's motion to compel individual arbitration is granted. The next question is whether Uber drivers are engaged in interstate commerce. In support of their argument that they are, the Plaintiff points to the following evidence: (i) statistical evidence that Uber drivers transport a number of passengers to transportation hubs such as airports, train stations, bus depots, and ferry terminals and earn a percentage of their fares through such trips; (ii) statistical evidence that Uber drivers sometimes transport passengers interstate and earn a percentage of their fares through such interstate trips; and (iii) evidence that Uber seeks individuals with interstate transportation experience for the driver role and partners with airlines, airports, and cities to facilitate the flow of interstate commerce. Judge Liman concludes that the evidence does not show that Uber drivers are "engaged in foreign or interstate commerce" and the Plaintiff's claims are therefore not exempt from arbitration under the FAA. The Plaintiff has offered no such evidence of any special commercial arrangement between Uber and any airline or hotel. Thus, the Plaintiff's claims are subject to the FAA and Uber's request to compel individual arbitration of the Plaintiff's claims must be granted. Finally, Uber asks the Court to dismiss the Plaintiff's claims upon compelling individual arbitration. The Plaintiff does not address this request in their opposition to Uber's motion to compel. In Katz v. Cellco Partnership, the Second Circuit addressed when a stay versus dismissal of an action is warranted after a district court compels arbitration pursuant to a binding arbitration agreement between the parties. The court noted that the dismissal of an arbitrable matter that properly should have been stayed effectively converts an otherwise-unappealable interlocutory stay order into an appealable final dismissal order and thus would afford judges such discretion to confer appellate rights expressly proscribed by Congress. In the present case, neither party has requested a stay and so Katz does not squarely address the issue. Nonetheless, Judge Liman exercises discretion to stay the current proceedings. In light of the foregoing, Judge Liman grants the motion to compel individual arbitration and stays the claims brought by the Plaintiff against Uber pending arbitration. A full-text copy of the Court's Dec. 21, 2022 Opinion & Order is available at https://tinyurl.com/njcdv3a7 from Leagle.com. USV OPTICAL: Morgan Files Suit in D. New Jersey ----------------------------------------------- A class action lawsuit has been filed against USV Optical, Inc. The case is styled as Lacie Morgan, individually and on behalf of all others similarly situated v. USV Optical, Inc., U.S. Vision, Inc., Case No. 1:22-cv-07485-CPO-SAK (D.N.J., Dec. 23, 2022). The nature of suit is stated as Other P.I. for Breach of Contract. USV Optical, Inc. -- https://www.usvision.com/ -- retails optical products. The Company offers optical frames, eyewear, contact lenses, sunglasses, ready-made readers, and accessories, as well as provides eye examination services.[BN] The Plaintiff is represented by: Gamaliel B. Delgado, Esq. MORGAN & MORGAN NY, PLLC 350 Fifth Avenue, Suite 6705 New York, NY 10118 Phone: (917) 344-7031 Fax: (917) 344-7056 Email: gdelgado@forthepeople.com WEGMANS FOOD: Loeper Sues Over Unpaid Overtime Compensation ----------------------------------------------------------- Thomas Loeper, Jr., on behalf of himself and others similarly situated v. WEGMANS FOOD MARKETS, INC., Case No. 3:22-cv-02044-MEM (M.D. Pa., Dec. 23, 2022), is broth against the Defendant, seeking unpaid overtime compensation and all available relief under the Fair Labor Standards Act ("FLSA"), and the Pennsylvania Minimum Wage Act ("PMWA"). The Plaintiff, like other Warehouse Workers, often worked over 40 hours per week. For example, Plaintiff recalls that he worked up to 50-60 hours a week at times, particularly during busy seasons around holidays. The Defendant does not pay the Plaintiff and other Warehouse Workers for all time that elapses between when they are required to be on Defendant's premises at the start of the workday to their paid shift start, including walking within the warehouse to time clocks. The Defendant does not pay the Plaintiff and other Warehouse Workers any compensation for time spent at the end of the workday walking within the warehouse from the time clocks to the exit area. In order to incentivize Warehouse Workers to work additional hours beyond their scheduled shifts, Defendant regularly promises and pays Warehouse Workers additional compensation in the form of gift cards. The Defendant does not include the dollar value of the gift cards in the regular rate of the Plaintiff and other Warehouse Workers for purposes of calculating their overtime rate in weeks in which they work over 40 hours, says the complaint. The Plaintiff was employed by Defendant as a Warehouse Worker at the Pottsville warehouse. The Defendant owns and operates grocery stores in Pennsylvania and other states primarily in the Northeast and Mid-Atlantic regions.[BN] The Plaintiff is represented by: Peter Winebrake, Esq. Deirdre A. Aaron, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 - and - Sarah R. Schalman-Bergen, Esq. Krysten Connon, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Phone: (267) 256-9973 WEST COAST DINER: Cal. App. Flips Dismissal of Flores Class Suit ---------------------------------------------------------------- In the case, JONATHAN FLORES, Plaintiff and Appellant v. WEST COAST DINER MANAGEMENT, INC., Defendant and Respondent, Case No. A162398 (Cal. App.), the Court of Appeals of California for the First District, Division Four, reverses the trial court's dismissal of Flores' action after it sustained the Defendant's demurrer under the doctrine of claim preclusion. Flores brought a representative action against West Coast Diner Management, Inc. (WCD) pursuant to the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, Section 2698 et seq.). Flores is a member of a settlement class in a prior class action against Central Valley Diners, Inc. (CVD) and WCD (the Krake action). In this action, Flores sought to recover civil penalties for WCD's alleged violations of section 2802 (reimbursement for business expenses) for a period starting one year and 65 days prior to the filing of his initial complaint, and he sought civil penalties for WCD's alleged violations of additional Labor Code statutes that occurred after the period covered by the Krake class action settlement. Flores appeals the dismissal of his action after the trial court sustained WCD's demurrer under the doctrine of claim preclusion. On July 23, 2018, Denise Krake and Suzi McClain (the Krake plaintiffs) notified the Labor and Workforce Development Agency (LWDA) that they intended to commence a PAGA representative action against CVD, a company that owns and operates numerous franchised restaurants, including Denny's. In their LWDA notice, the Krake plaintiffs stated that CVD failed to provide required off-duty meal and rest periods to nonexempt, hourly employees, and, as a result, failed to compensate nonexempt employees for all wages earned and to provide accurate wage statements in violation of numerous Labor Code provisions and applicable wage orders. In August 2018, the Krake plaintiffs filed a putative class action complaint in Placer County against CVD. In October 2018, they filed their first amended complaint alleging causes of action for violation of: (1) Business and Professions Code section 17200 et seq.; (2) the meal break and compensation provisions of sections 512 and 226.7; (3) the rest break and compensation provisions of sections 512 and 226.7; (4) the minimum wage provisions of sections 1194, 1197 and 1197.1; (5) the overtime provisions of section 510 et seq.; (6) the wage statement provisions of section 226; and (7) the payment of wages when due provisions of sections 201, 202, and 203. The Krake plaintiffs also alleged a cause of action under PAGA for civil penalties for violation of sections 201 to 203 (failure to pay wages when due); section 226, subdivision (a) (failure to provide accurate wage statements); and sections 510 and 558 (failure to provide overtime wages). In July 2019, the Krake plaintiffs filed Doe amendments adding WCD as a defendant, and adding Anil Radav as a defendant for purposes of the PAGA cause of action. Previously, in June 2019, the Krake plaintiffs, CVD, and presumably WCD and Radav, mediated the Krake lawsuit, and the parties settled sometime thereafter. The parties filed a stipulation of settlement in November 2019, the trial court preliminarily approved the settlement, and the parties provided notice to the putative settlement class. The settlement received final approval, and the court entered judgment thereupon in September 2020. The period covered by the Krake settlement was Aug. 18, 2014, through Jan. 21, 2020. The Krake settlement involved a release of claims by the Krake plaintiffs and the settlement class members in favor of, among others, WCD and CVD (the settlement release). The period of the Release will extend to the limits of the Class Period. Flores worked for WCD as an hourly, nonexempt server and manager from August 2017 through September 2019. WCD owns and operates numerous Denny's franchises throughout California. In November 2020, Flores filed his operative first amended complaint under PAGA seeking to recover civil penalties. For the period starting one year and 65 days prior to the filing of his complaint to the resolution of the suit, Flores sought civil penalties for violation of section 2802 (business expense reimbursement). For the period starting Jan. 22, 2020 (one day after the Krake settlement period), he sought civil penalties for the following Labor Code violations: (1) failure to provide lawful rest periods (Sections 226.7, 1198, and IWC wage order No. 5-2001); (2) failure to provide reporting time pay (Sections 1194, 1197, 1198 and IWC wage order No. 5-2001); (3) failure to timely pay wages due during employment (Sections 204, 210, subd. (a)); (4) failure to timely pay final wages (Sections 201-203); (5) failure to provide compliant wage statements (Sections 226, 1174); and (6) failure to keep accurate payroll and timekeeping records (Sections 226, subd. (a), 1174, 1174.5). Flores' claim for failure to reimburse for necessary business expenses was based on WCD's failure to reimburse employees for "writing utensils (like pens), note pads/paper, shoes and uniform maintenance." WCD demurred, arguing that Flores's action was barred by res judicata (claim preclusion) because of the Krake settlement and judgment. The trial court agreed that res judicata barred Flores's complaint, and it sustained WCD's demurrer without leave to amend. The court found the parties resolved the claims in the Krake complaint and claims for civil penalties under PAGA, and it found that Flores's claim for reimbursement of business expenses was barred because it asserted the same "primary right" as that asserted in the Krake action. The court rejected Flores's arguments that the Krake plaintiffs' failure to submit a PAGA notice to the LWDA for any claims against WCD, and their failure to list a claim for reimbursement of business expenses in their LWDA notice for CVD, precluded the application of res judicata. The court found Flores was in privity with the Krake plaintiffs because he was a member of the Krake settlement class, and he did not opt out or object to the settlement. Finally, the court rejected Flores's argument that he should be allowed to pursue civil penalties for the period beginning January 22, 2020 -- after the Krake settlement period ended -- because Flores no longer worked for WCD as of Jan. 22, 2020. Flores contends that the trial court erred in sustaining WCD's demurrer with respect to his claim for civil penalties under PAGA for violation of section 2802 (business expenses reimbursement) because this is not the same cause of action as asserted in the Krake action; the trial court erred in finding the requisite privity; the trial court in Krake lacked jurisdiction to approve the settlement given the Krake plaintiffs' failure to adhere to PAGA's notification procedure; and the Krake settlement release did not encompass Flores's claim for civil penalties under PAGA for failure to reimburse business expenses. The Court of Appeals finds merit in Flores' final argument. It states that the Krake settlement release evidenced an intent to limit the matters released therein to those "based on the claims asserted in the operative complaint." Accordingly, under the settlement release, to qualify as a "Released Claim," the claim in question must be "based on" the claims actually asserted in the operative Krake complaint. Moreover, the Krake complaint sought civil penalties for failure to pay nonexempt employees the required wages for services performed, failure to allow rest and meal breaks, and failure to pay the required wages for that time worked. Thus, Flores' section 2802 claim for expense reimbursement is not based on the claims asserted in the operative Krake complaint. Because the Krake parties expressly limited their settlement release, Flores is not barred from pursuing civil penalties under PAGA for WCD's alleged violation of section 2802. Flores also challenges the trial court's ruling that he could not maintain claims for civil penalties for WCD's various alleged violations of the Labor Code occurring after the Krake settlement period because he was not employed by WCD as of Jan. 22, 2020. Having determined that Flores can seek civil penalties under PAGA against WCD for failure to reimburse business expenses for the period set forth in his operative complaint, Flores had standing to sue to recover civil penalties for violations of the other Labor Code violations he alleges in his complaint occurring after Jan. 21, 2020. When Flores sued and throughout this appeal, Flores was an aggrieved employee (i.e., a person who was employed by the alleged violator and against whom one or more of the alleged violations was committed) who sued on behalf of himself and other current and former employees (Section 2699, subds. (a), (c).) Because the parties in Krake did not include a claim for civil penalties under PAGA for violations of section 2802 in the settlement release, the Court of Appeals reverses. It remands the matter is remanded for proceedings consistent with its Opinion. A full-text copy of the Court's Dec. 21, 2022 Opinion is available at https://tinyurl.com/mrxb5enu from Leagle.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 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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