/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230125.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 25, 2023, Vol. 25, No. 19 Headlines 3M COMPANY: Mason PFAS Suit Removed to N.D. Ala. 8&9 CLOTHING CO: Velazquez Files ADA Suit in S.D. New York ABSOLUTE HOT: Rodriguez Files ADA Suit in E.D. New York ADVANCED DRAINAGE: Class Cert. Bid Filing Extended to July 31 ALAMEDA, CA: Parties Seek to Continue Class Cert Hearing Date ALDI FOODS: Can Compel Arbitration; Erwin Class Suit Dismissed ALLSTATE FIRE: Bid to Dismiss & Strike Sims' Class Claims Denied ANTIHERO GALLERY: Sookul Files ADA Suit in S.D. New York APRIO LLP: Bid for Leave to File Docs Under Seal Granted in Part BIO-PACIFIC LLC: Alexander Labor Suit Removed to C.D. Cal. BREAKINGT LLC: Velazquez Files ADA Suit in S.D. New York C.R. BARD: Joint Stipulation for Extension of Time Filed CHARTSWAP LLC: Beloff Suit Removed to D.S.C. CHARTSWAP LLC: Cobb Suit Removed to D.S.C. CHARTSWAP LLC: Cook Suit Removed to D.S.C. CHARTSWAP LLC: Gamble Suit Removed to D.S.C. CHARTSWAP LLC: LaCount Suit Removed to D.S.C. CHRISTENSEN BROTHERS: Stipulation to Strike Declarations OK'd CHROMALLOY GAS: Bid for Arbitration Granted; Querette Suit Stayed CIGARS DIRECT: Velazquez Files ADA Suit in S.D. New York COLLECTION PROFESSIONALS: McGrady Seeks to Modify Scheduling Order COMPASS MINERALS: Local 338 Named Lead Plaintiff in IBT Suit CPA GLOBAL: Count II in Brainchild Suit Dismissed With Prejudice CROSS RIVER BANK: Court Narrows Claims in Greenfield Suit DELTA COUNTY, TX: Taylor, et al., File Bid for Class Certification DEWAYNE HILL: Scheduling Order Entered in Capital Hitch Suit ELAP SERVICES: South Broward Hospital Seeks Class Certification EPIC LANDSCAPE: Gomez Seeks Leave to File Exhibits Under Seal FIRST ADVANTAGE: Wilson Seeks Certification of Class GALAXY OF COMICS: Sookul Files ADA Suit in S.D. New York GENWORTH LIFE: Class Settlement With Objectors in Haney Suit OK'd GOCOLLECT LLC: Sookul Files ADA Suit in S.D. New York GOFUND ADVANCE: Haymount Loses Bid to Certify Class GOLDMAN SACHS: AP-Fonden Seeks to Modify Proposed Class Period GOVERNMENT EMPLOYEES: Biscardi Wins Bid for Class Certification HOWARD UNIVERSITY: Ct. Sets Class Certification Deadlines in Payne HUNT MH: Parties Seek Initial OK of Class Action Settlement J & L GAME INC: Rodriguez Files ADA Suit in E.D. New York KEVIN COPPINGER: Lucero Seeks to Certify Pretrial Detainee Class LAMON CONSTRUCTION: Josephson Labor Suit Removed to E.D. Cal. LAND O'LAKES: Cook Suit Voluntarily Dismissed Due to Settlement LEE ENTERPRISES: 8th Cir. Affirms Dismissal of All Goldsmith Claims LIFETIME BRANDS: Rodriguez Files ADA Suit in E.D. New York MAYFIELD CONSUMER: Aliff Consumer Suit Removed to W.D. Ky. MED-CALL HEALTHCARE: Bass Seeks More Time to File Class Cert. Bid NEMACOLIN WOODLANDS: Initial Approval of Class Settlement Sought OZARKS HEALTHCARE: Vinke Suit Asserts Discrimination, Retaliation PC RICHARD: Hearing on Class Action Settlement Set for Feb. 8 PERRY'S RESTAURANTS: Class Cert Bid Referred Magistrate Judge PIERCE COUNTY, WA: Lemmon State Law Claims Junked RANDALL MECHANICAL: Fixl Seeks to Certify Collective Action RAVALLI COUNTY, MT: Court Recommends Partial OK of Class Cert Bid RECOVERY REMEDIES: Douglas Seeks More Time to File Class Cert. Bid SAN BERNARDINO, CA: Johnson, et al., Seek Class to Certify Class SAVORY SPICE SHOP: Velazquez Files ADA Suit in S.D. New York SEATTLE, WA: Bid for Summary Judgment vs HCL Granted in Part SERCO INC: Bid for Summary Judgment in Cherry Class Suit Granted SOUTHERN CO: Astrom Seeks Conditional Status of Collective Action TAKEOFF GROUP: Velazquez Files ADA Suit in S.D. New York TOMBOLO LLC: Rodriguez Files ADA Suit in E.D. New York TOYOTA MOTOR: Bid for Summary Judgment in Weinreich Suit Granted TRANSWORLD SYSTEMS: Bell Files FDCPA Suit in N.D. Georgia UNITED OF OMAHA: Nieves Seeks to Certify Class of Policy Owners UNITEDHEALTHCARE: Parties Must Confer Class Cert. Deadlines VERVENT INC: One Class & Two Subclasses Certified in Turrey Suit ********* 3M COMPANY: Mason PFAS Suit Removed to N.D. Ala. ------------------------------------------------ The case styled ANTHONY BRUCE MASON; CARLOS ALBERTO GARCIA; THEODORE MICHAEL GARCIA; CHRISTOPHER DANE GARNER; MICHAEL SHAWN GARRETSON; SHAWN BENNETT GEE; KIRBY JOHN GIAMPA; EDWARD NORRIS GOERING JR.; RICARDO ADAN GOMEZ; MATTHEW GOODCHILD; RICHARD MARTIN GORDON; CHARLES WELDON GOTCHER; SAMUEL STEVEN GOULD SR.; THOMAS CARTER GREEN SR.; ROBIN HERBERT GREENBANK; JOSEPH EMANUEL GRIMES II; VON LEE GRUBER; HAMPTON KENNETH GUILLORY SR.; ROBERT FRANK HAMANN; ROY W. HANKINSON; TODD MASAAKI HARA; JAMES CARLETON HARMAN; JAMES EDGAR HARTON; JUSTIN MICHAEL HASKAMP; JEFFREY LAWRENCE HAYLES; BRADLEY JOHN HERING; JACOB THOMAS HERNANDEZ; KYLE JUSTIN HERNDON; CLAIR DEE HIGGINS; PAUL WILLIAM HIGGINS; CHRISTOPHER DARREN HIRONS; WILLIAM CLIFFORD HOGAN; GARY DEAN HUMMEL; MYRON EUGENE INGRAM; CHARLES ARTHUR IRWIN; EDWARD LEE IVERSON; JOHN FREDERICK JACKSON; CHARLES WAYNE JESSEE; EDWARD EARL JOHNSON; JOHN WAYNE JOHNSON; RODERICK JOSEPH JOHNSON; ROY LEE JOHNSON; EUGENE VERNON JONES JR.; KENNETH ARNOLD JONES JR.; RYAN SAUL JONKE; WILLIAM ELMER KEIP; WILLIE KING JR.; RAYMOND CASIMER KOZLOWSKI; BRUCE RUDOLPH KUNICK; JOSEPH DANIEL CERNIE; DONALD KEITH CHIPP; GEOFFREY MILES CLARK; MARK ANTHONY CLINTON; GLENN JOSEPH CLIVER; JERRY RAY COE; JOHN HOWARD COLBERT; CARL DAVID COLLIER; BRIAN KEITH COLLINS SR.; MILTON EUGENE CONLEY; LAWRENCE WILLIAM CONNELLY JR.; RALPH RUSSELL CONRAD; JAMES ALLEN COPELAND; DENNIS LEON COTTON; KENNETH LEE COUCH; CRAIG AARON COULTAS; ALBERT JAMES COURTOIS; ETHAN DOUGLAS COX; NICHOLAS RAY CROBER; TIMOTHY JAMES CRUM; SAMUEL AUSTIN CUTLER; RONALD KEITH CYPERT; MARK ALLEN DALY; LENNY DAMCOTT; CARL JOHN DAPPEN; MITCHELL J. DAVID; SHELAINE FAITHE DAVIS; MICHAEL ERIC DEBOARD; JACK MELVIN DECKER; PHILIP DEGUZMAN III; MURPHY PAUL DELHOMME; MICHAEL L. DEVOR; JAMES FREDERICK DIFFELL; KEVIN DWAYNE DILL; DANIEL PATRICK DOWLING; BRIAN LEE DUGGAN; LAWRENCE ESTEBAN; LOWELL LEE ESTER; WARREN LEE FAISON; BRIAN KEITH FARRIS; MICHAEL SEAN FAWCETT; CARLOS DANIEL FIGUEROA; SHELLEY ALONZO FISHER; STEVEN DEAN FISHER; JAMES GREGORY FISK; DENNIS EDWIN FOSBERG; CONNIE JAMES FOWLER JR.; TIM WILLIAM FRANKEN; TIMOTHY DIRK WILLIAMS; ROBERT WALTER KUROWSKI; MICHAEL JAMES LAMANNA; CHARLES FREDERICK LANSING; DAVID FARRELL LAPINE; THOMAS LEE LARSON; JEROD ELTON LEACH; CARL JAMES LEBLANC SR.; AARON TODD LEMASTER; DAVID G. LEWIS; STEVEN MERYL LEWIS; SCOTT JAMES LISKE; ROBERT ANTHONY LOMBARDI JR.; JOHN FRANCIS LOROW; SAMUEL LOWE JR.; RODNEY WILLIAM LUCK; ROBERT BRUCE LUNDGREN; JOHN M. LUTHER; EDWARD PATRICK LYNCH; RICHARD ALAN MABE; RICHARD ALLEN MACMURDO; AL SALVATORE MACRI; RANDOLPH ARLINGTON MADDOX JR.; DOUGLAS CHARLES MADIGAN; STUART MAHAFFEY; THOMAS ALAN MANN; PATRICK PETER MARIANI; KARL GARY MARKHARDT, Plaintiffs v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); ALLSTAR FIRE EQUIPMENT; FIRE-DEX, LLC; GLOBE MANUFACTURING COMPANY LLC; HONEYWELL SAFETY PRODUCTS USA, INC.; LION GROUP, INC.; MALLORY SAFETY AND SUPPLY LLC; MINE SAFETY APPLIANCES CO., LLC; MUNICIPAL EMERGENCY SERVICES, INC.; PBI PERFORMANCE PRODUCTS, INC.; SOUTHERN MILLS, INC.; STEDFAST USA, INC.; W.L. GORE & ASSOCIATES INC., Defendants, Case No. 01-CV-2022-903689.00, was removed from the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama, Southern Division, on January 9, 2023. The Clerk of Court for the Northern District of Alabama assigned Case No. 2:23-cv-00024-AMM to the proceeding. The Plaintiffs seek to hold 3M and other Defendants liable based on their alleged conduct in designing, manufacturing, and/or selling aqueous film-forming foams and/or firefighter turnout gear that Plaintiffs allege were used in firefighting activities, thereby causing injury to Plaintiffs. The Plaintiffs allege that 3M and the other Defendants sold AFFF containing per- and polyfluoroalkyl substances, including perfluorooctanoic acid and perfluorooctane sulfonic acid. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Defendants are represented by: M. Christian King, Esq. Harlan I. Prater, IV, Esq. W. Larkin Radney, IV, Esq. Benjamin P. Harmon, Esq. LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Telephone: (205) 581-0700 Facsimile: (205) 581-0799 E-mail: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com bharmon@lightfootlaw.com 8&9 CLOTHING CO: Velazquez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against 8&9 Clothing Co., LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. 8&9 Clothing Co., LLC, Case No. 1:23-cv-00376-KPF (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. 8&9 Clothing Co. -- https://www.8and9.com/ -- is an independent streetwear brand and Miami streetwear store offering new streetwear collections and urban clothing.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ABSOLUTE HOT: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Absolute Hot New York Corp. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Absolute Hot New York Corp., Case No. 1:23-cv-00278-RPK-VMS (E.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Absolute New York -- https://absolutenewyork.com/ -- is an all-around beauty brand that offers the essentials from cosmetics, skincare, to tools and accessories.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ADVANCED DRAINAGE: Class Cert. Bid Filing Extended to July 31 ------------------------------------------------------------- In the class action lawsuit captioned as Loschiavo, et al., v. Advanced Drainage Systems, Inc., Case No. 2:21-cv-05069 (S.D. Ohio), the Hon. Judge Chelsey M Vascura entered an order granting motion for extension of time to file class certification. The deadline is now July 31, 2023. The suit alleges violation of the Fair Labor Standards Act. Advanced Drainage designs, manufactures and markets polypropylene and polyethylene pipes, plastic leach field chambers and systems, septic tanks and accessories, storm retention/detention and septic chambers, polyvinyl chloride drainage structures, fittings, and water filters and water separators.[CC] ALAMEDA, CA: Parties Seek to Continue Class Cert Hearing Date ------------------------------------------------------------- In the class action lawsuit captioned as ALAMEDA COUNTY MALE PRISONERS And Former Prisoners, DANIEL GONZALEZ, et al. on behalf of themselves and others similarly situated, as a Class, and Subclass v. ALAMEDA COUNTY SHERIFF'S OFFICE, et al, Case No. 3:19-cv-07423-JSC (N.D. Cal.), the Parties stipulate and request the Court to continue hearing date on class certification proposed order. The parties request that the hearing date of February 9, 2023 be reset for February 23, 2023 or anytime thereafter, at the Court's convenience. The hearing on plaintiffs' motion for class certification was originally set for January 19, 2023. In order to accommodate defendant Aramark's request to file a sur-reply, the Court reset the hearing for February 9, 2023. The Plaintiffs' counsel is unavailable on February 9, 2023, as she has prepaid plans to be out of state on a much delayed vacation. A copy of the Parties' motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3GEnViS at no extra charge.[CC] The Plaintiffs are represented by: Yolanda Huang, Esq. LAW OFFICES OF YOLANDA HUANG Berkeley, CA 94705 Telephone: (510) 329-2140 Facsimile: (510) 580-9410 E-mail: yolanda@yhuanglaw.com The Defendant is represented by: Charles Reitmeyer, Esq. ARAMARK CORRECTIONAL SERVICES, LLC ALDI FOODS: Can Compel Arbitration; Erwin Class Suit Dismissed -------------------------------------------------------------- In the case, RICHARD ERWIN on behalf of himself and all others similarly situated, Plaintiff v. ALDI FOODS, INC., an Illinois corporation, and DOES 1 through 50, inclusive, Defendants, Case No. 1:22-cv-01207-ADA-BAM (E.D. Cal.), Judge Ana de Alba of the U.S. District Court for the Eastern District of California grants ALDI Foods' motion to compel arbitration and dismisses the action without prejudice. On July 25, 2022, Erwin filed a class action Complaint in the Superior Court of California on behalf of himself and all others similarly situated against ALDI Foods, alleging eight state law causes of action: (1) Failure to Pay Wages (Cal. Lab. Code Sections 1924, 1199); (2) Failure to Provide Lawful Meal Periods Or Compensation in Lieu Thereof (Cal. Lab. Code Section 226.7, 512; IWC Wage Orders); (3) Failure to Provide Rest Periods Or Compensation In Lieu Thereof (Cal. Lab. Code Section 226.7; IWC Wage Orders); (4) Failure to Reimburse Employees (Cal. Lab. Code Section 2802); (5) Failure to Timely Pay Wages During Employment (Cal. Lab. Code Section 204); (6) Failure to Timely Pay Wages Due at Termination (Cal. Lab. Code. Sections 201-03); (7) Knowing and Intentional Failure to Comply with Itemized Employee Statement Provisions (Cal. Lab. Code Section 226(b)); and (8) Violation of Unfair Competition Law (Cal. Bus. & Prof. Code Sections 17200-08). The Plaintiff seeks to represent a class of current and former California employees of Defendant categorized as hourly, non-exempt employees. The Defendant answered the Plaintiff's Complaint on Sept. 20, 2022, with 28 defenses listing "Arbitration" first and arguing the Plaintiff's claims are barred by their contractual agreement to arbitrate their individual claims, pursuant to an agreement he signed at the start of his employment with the Defendant. The Defendant then removed to this Court on Sept. 22, 2022. On Oct. 28, 2022, the Defendant filed its motion to compel the Plaintiff to arbitrate his claims, requesting dismissal of his action without prejudice. On Nov. 14, 2022, the Plaintiff filed a Statement of Non-Opposition to the Defendant's motion, conceding, his counsel has reviewed the Defendant's presented arbitration agreement and finds that the agreement covers the claims present in his operative complaint" and agreeing to the Defendant's "requested relief." The Defendant employed the Plaintiff between approximately March 2020 to July 25, 2021, as a non-exempt Cashier and Stocking employee. His duties included, but were not limited to, working on the cash register and stocking shelves with inventory. The Plaintiff alleges the Defendant implemented policies and procedures that precluded him from being paid minimum wage for all hours worked, such as, requiring him and non-exempt employees to undergo COVID-19-related temperature checks prior to clocking in. He alleges he and other non-exempt employees were frequently required to work without 10-minute breaks every four hours, and without 30-minute lunch breaks after five hours due to a lack of staffing and heavy workload. The Defendant did not compensate the Plaintiff for its failure to provide these rest breaks and failed to provide itemized wage statements documenting employees' hours. The Plaintiff alleges the Defendant failed to reimburse him and other non-exempt employees for all business expenses necessarily incurred, such as phone usage and purchasing both box-cutters and his uniform for work. On the day the Defendant terminated the Plaintiff, it did not provide him with his final paycheck. The Defendant's motion to compel arbitration relies on the arbitration agreement signed by the parties. The Agreement provides that "Company and Employee agree that any employment-related legal claims or controversies that Employee may have against the Company, or that the Company may have against Employee, must be resolved by arbitration instead of the courts, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under this Agreement" and that "arbitration will be final and binding upon the parties." The Agreement requires all Claims only be brought in "the party's individual capacity, and not as a plaintiff or class member in any class, collective, or representative proceeding except that if a waiver of representative claims is not permissible by law," such as Private Attorney General Actions in the State of California. Judge de Alba has reviewed the Agreement and concludes that the Defendant has demonstrated that a valid agreement to arbitrate exists and that it covers the dispute at issue. Accordingly, she grants its motion to compel arbitration. Because all of the Plaintiff's claims are subject to arbitration under the parties' Agreement, Judge de Alba can discern no reason to stay the action; further, the Plaintiff has not provided the Court with any reason why it should do so. Thus, she dismisses the action without prejudice. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Jan. 11, 2023 Order is available at https://tinyurl.com/2nb2m6hy from Leagle.com. ALLSTATE FIRE: Bid to Dismiss & Strike Sims' Class Claims Denied ---------------------------------------------------------------- In the case, JAMES SIMS, TERRIE SIMS, NEAL COMEAU, LILIANA COMEAU, JENIFER SIDDAL, Plaintiffs v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, Defendants, Case No. SA-22-CV-00580-JKP (W.D. Tex.), Judge Jason Pulliam of the U.S. District Court for the Western District of Texas, San Antonio Division, denies the Allstate Defendants' Amended Motion to Dismiss and Motion to Strike Class Allegations. Plaintiffs James and Terrie Sims purchased a homeowner's policy from Allstate, Plaintiffs Neal and Liliana Comeau purchased a homeowner's policy from Allstate Vehicle, and Plaintiff Jenifer Siddall purchased a homeowner's policy from Allstate Indemnity. Each of the Plaintiff parties incurred damage to their home and submitted claims for coverage to the Allstate Defendants. The parties do not dispute the damage to each property is covered under each policy. The dispute arises in how the Allstate Defendants calculate the initial payment to the insureds for the covered loss. The parties do not dispute the Plaintiffs policies are replacement cost insurance policies, under which there is a two-step process for recovery of loss payments. First, the Allstate Defendants pay an insured the actual cash value (ACV) of the insured loss when it is damaged or destroyed. Second, if the insured chooses to complete repairs or replacement of the subject property, they may then seek reimbursement for the actual cost of repairs under the replacement cost value provisions of the Policy. The parties do not dispute the Plaintiffs' Policies provide the ACV payment may include a deduction for depreciation, and the Policies do not provide a specific definition of ACV or depreciation. In each of the Plaintiffs' losses, the Allstate Defendants calculated their initial ACV payments by estimating the cost to repair or replace the damage with new building materials and then subtracted depreciation for both the cost of materials and the cost of labor. The Plaintiffs allege the Allstate Defendants incorrectly calculated the initial ACV payment by deducting depreciation for the anticipated labor cost. They contend the Policy language is ambiguous, by omission, by failing to define ACV specifically to disclose the Allstate Defendants' practice of calculating the ACV payment by deducting depreciation of anticipated labor costs. The Allstate Defendants contend the Plaintiffs' theory that they breached the Policies by depreciating labor when calculating ACV of damaged insured property is based on Plaintiffs' unreasonable interpretation of the Policies. They contend the Plaintiffs' interpretation allows insureds to receive the full amount estimated for all labor costs for repairing property before the insureds have incurred that cost and even if they decide to not repair the damaged property. This conflicts with the policy language, Texas case law, and the ordinary dictionary meaning of the terms actual cash value and depreciation. The Plaintiffs' Policies are replacement cost insurance policies where they will receive the actual cash value of their insured property when it is damaged or destroyed by a covered loss. If the Plaintiffs make the repairs or replacements, they will receive reimbursement up to the policy limits for the full amount of costs expended in making the repairs or replacements, less the ACV amount they already received. Thus, the Allstate Defendants contend their practice of calculating the ACV payment is in accordance with the Policies' plain terms, and therefore, is not ambiguous. The Plaintiffs brought the action asserting a cause of action for breach of contract and seek declaratory relief stating the applicable insurance contracts prohibit the withholding of future labor costs as depreciation when calculating "actual cash value" of the loss. Specifically, they seek declaration that the Allstate Defendants breached their Policies by wrongfully reducing the initial ACV payments by depreciated labor costs. The Allstate Defendants file the Motion to Dismiss. All parties agree the Motion presents an issue of law and dispute whether the applicable Policy provisions are ambiguous. Judge Pulliam finds that the Plaintiffs state a plausible cause of action for breach of contract based upon the Allstate Defendants' calculation of ACV to include depreciation of labor costs. He concludes the undefined term "actual cash value" as it appears in the subject insurance policy contracts is ambiguous because each party's interpretation is reasonable. This ambiguity must be resolved in the Plaintiffs' favor, that is, the term "actual cash value" in the subject Policies does not include depreciation of anticipated labor costs. Consequently, the Allstate Defendants' Motion to Dismiss on this basis will be denied. The Plaintiffs also seek Declaratory Judgment stating: "the applicable insurance contracts prohibit the withholding of future labor costs when adjusting losses." The Allstate Defendants move to dismiss this claim for Declaratory Judgment because the Plaintiffs' breach of contract cause of action is meritless, and therefore, this request for declaratory relief based upon the same legal issue has no merit. Because he concludes the Plaintiffs state a plausible cause of action for breach of contract, Judge Pulliam opines that this argument must fail. Therefore, he denies the Allstate Defendants' Motion to Dismiss on this basis. Finally, in their Motion to Dismiss, the Allstate Defendants move to strike the Plaintiffs' class allegations because the face of the Complaint demonstrates they cannot satisfy the Federal Rule 23 class action requirements. The Plaintiffs seek to define a putative class that includes similarly-situated policyholders who made a claim for damage to property located in Texas. The Allstate Defendants' Motion to strike the Plaintiffs' class allegations within this Federal Rule 12(b)(6) Motion to Dismiss is premature. Judge Pulliam finds that discovery has not commenced, and the Plaintiffs have not yet filed a Motion for class certification. The Allstate Defendants' arguments to strike any class allegations are more appropriately resolved at class certification stage of proceedings. For those reasons, Judge Pulliam denies the Allstate Defendants' Federal Rule 12(b)(6) Motion to Dismiss the Plaintiffs' proposed class allegations. A full-text copy of the Court's Jan. 11, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/kx8rs5zh from Leagle.com. ANTIHERO GALLERY: Sookul Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Antihero Gallery LLC. The case is styled as Sanjay Sookul, on behalf of himself and all others similarly situated v. Antihero Gallery LLC, Case No. 1:23-cv-00375 (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Antihero Gallery -- https://antiherogallery.com/ -- curates exclusive comic book variants and mystery boxes by some of the hottest cover artists.[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 APRIO LLP: Bid for Leave to File Docs Under Seal Granted in Part ---------------------------------------------------------------- In the class action lawsuit captioned as ANDREW LECHTER, et al., v. APRIO, LLP, et al., Case No. 1:20-cv-01325-AT (N.D. Ga.), the Hon. Judge entered an order: 1. granting in part the Plaintiffs' motion for leave to file documents under seal; 2. granting the Defendants' motion for leave to file documents under seal; and 3. directing the Clerk to place the following documents under seal: -- The chart attached to Exhibit A of the Dreary declaration and Exhibit T of the Dreary declaration. -- Exhibits A through K of Exhibit 8, Exhibits 9 through 21, Exhibits 24 through 33, Exhibits 40 through 44, and Exhibits 46 and 47 of Defendants' Opposition to Plaintiffs' Motion for Class Certification. In Plaintiffs' Motion, the Plaintiffs seek to file under seal a series of documents attached to their Motion for Class Certification that Defendants have previously designated as confidential pursuant to the Court's Protective Order. The Plaintiffs state that they take no position on whether there is good cause to seal any of these documents but that they are requesting that the documents be placed under seal to fulfill their obligations under the Protective Order. The Plaintiffs request that the Court evaluate whether there is good cause to seal any of these documents based on the Defendants' response brief. In their response brief, the Defendants indicate that they support sealing just two documents covered by Plaintiffs' Motion: Aprio is a full-service business advisory and CPA firm headquartered in Atlanta. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3XbaHkG at no extra charge.[CC] BIO-PACIFIC LLC: Alexander Labor Suit Removed to C.D. Cal. ---------------------------------------------------------- The case styled PATRICE LAVERN ALEXANDER and EMMA VERMUG MARTINEZ, on behalf of themselves and all others similarly situated, Plaintiffs v. BIO-PACIFIC, LLC d/b/a MARINER HEALTH CARE, a Delaware limited liability company; FRUITVALE OPERATING COMPANY, LP d/b/a FRUITVALE HEALTHCARE CENTER, a Delaware limited partnership; REHABILITATION CENTER OF SANTA MONICA OPERATING COMPANY, LP d/b/a THE REHABILITATION CENTER OF SANTA MONICA, a Delaware limited partnership; and DOES 1 through 50, inclusive, Defendants, Case No. 22STCV32149, was removed from the Superior Court for the State of California, County of Los Angeles, to the United States District Court for the Central District of California on January 9, 2023. The Clerk of Court for the Central District of California assigned Case No. 2:23-cv-00139 to the proceeding. In the complaint, Plaintiffs allege, on behalf of themselves and all others similarly situated, eight total causes of action, seven of which are for various violations of the California Labor Code and one of which is for "Unfair Competition" under the California Business & Professions Code. Bio-Pacific, LLC operates health care facilities throughout California.[BN] The Defendants are represented by: Jon D. Meer, Esq. Bethany A. Pelliconi, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jmeer@seyfarth.com bpelliconi@seyfarth.com BREAKINGT LLC: Velazquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against BreakingT, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. BreakingT, LLC, Case No. 1:23-cv-00377 (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. BreakingT -- https://breakingt.com/ -- offers high-quality, real-time sports fan gear with original designs including T-shirts, hoodies, mugs, masks, prints and more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com C.R. BARD: Joint Stipulation for Extension of Time Filed -------------------------------------------------------- In the class action lawsuit captioned as NORTH BREVARD COUNTY HOSPITAL DISTRICT D/B/A PARRISH MEDICAL CENTER, v. C. R. BARD, INC.; BARD ACCESS SYSTEMS, INC., Case No. 2:22-cv-00144-RJS-JCB (D. Utah), the Parties ask the Court to enter an order that: 1. The deadline for Defendants to file Feb. 24, 2023 a responsive expert disclosure and brief in opposition to class certification is extended to: 2. The deadline for Plaintiff to file March 27, 2023 a rebuttal expert report and reply brief in support of its motion for class certification is extended to: The date for Defendants to file a responsive expert disclosure and brief in opposition to class certification is set for February 10, 2023. The date for Plaintiff to file a rebuttal expert report and reply brief in support of its motion for class certification is set for March 13, 2023. C. R. Bard is a developer, manufacturer, and marketer of medical technologies in the vascular medicine, urology, oncology, and surgical specialty fields. A copy of the Parties' motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3ZFy6MFat no extra charge.[CC] The Plaintiff is represented by: Brent O. Hatch, Esq. HATCH LAW GROUP, PC 22 E 100 S, Salt Lake City, UT 84111 Telephone: (801) 869-1919 - and - R. Stephen Berry, Esq. BERRY LAW PLLC 1100 Connecticut Avenue, NW, Suite 645 Washington, D.C. 20036 Telephone: (202) 296-1212 E-mail: sberry@berrylawpllc.com - and - Velvel (Devin) Freedman, Esq. Edward Normand, Esq. FREEDMAN NORMAND FRIEDLAND LLP 99 Park Avenue, Suite 1910 New York, NY 10016 Telephone: (646) 350-0527 Facsimile: (646) 392-8842 E-mail: vel@rcfllp.com tnormand@rcfllp.com The Defendants are represented by: Andrew J. Frackman, Esq. Colleen Powers, Esq. O'M ELVENY & MYERS LLP Times Square Tower, 7 Times Square New York, NY 10036-6537 Telephone: 212-326-2000 Facsimile: 212-326-2061 E-mail: afrackman@omm.com cpowers@omm.com - and - Sergei Zaslavsky, Esq. Brian Quinn, Esq. O'M ELVENY & M YERS LLP 1625 Eye Street, NW Washington, DC 20006 Telephone: 202-383-5300 Facsimile: 202-383-5414 E-mail: szaslavsky@omm.com bquinn@omm.com - and - Andrew D. Deiss, Esq. Corey D. Riley, Esq. Sydney J. Sell, Esq. DEISS LAW PC 10 West 100 South, Suite 700 Salt Lake City, UT 84101 Telephone: (801) 433-0226 E-mail: deiss@deisslaw.com criley@deisslaw.com ssell@deisslaw.com CHARTSWAP LLC: Beloff Suit Removed to D.S.C. -------------------------------------------- The case styled EMILY BELOFF, individually and on behalf of all others similarly situated, Plaintiff v. CHARTSWAP, LLC; ACS PRIMARY CARE PHYSICIANS SOUTHEAST, P.C.; PRISMA HEALTH-UNIVERSITY MEDICAL GROUP; and NEWBERRY COUNTY MEMORIAL HOSPITAL BOARD d/b/a NEWBERRY COUNTY MEMORIAL HOSPITAL, Defendants, Case No. 2022CP1005274, was removed from the Court of Common Pleas for Dorchester County, South Carolina, to the United States District Court for the District of South Carolina on January 9, 2023. The Clerk of Court for the District of South Carolina assigned Case No. 2:23-cv-00092-BHH to the proceeding. The Plaintiff alleges that Defendants are responsible for charging allegedly unlawful fees in fulfilling request for copies of medical records and bills and seeks a variety of relief, including compensatory damages, prejudgment interest, punitive damages, reasonable costs and expenses, including reasonable attorneys' fees, an injunction prohibiting Defendants from further purported violation of the South Carolina Physicians' Patient Records Act, and a declaratory judgment finding that Defendants' conduct violates the Patient Records Act. ChartSwap, LLC provides Internet based services. The Company offers hospitals and other medical care facilities with the ability to securely delivery patient records. ChartSwap serves the medical sector in the United States.[BN] The Defendant is represented by: Cheryl D. Shoun, Esq. Rhett D. Ricard, Esq. NEXSEN PRUET, LLC 205 King Street, Suite 400 (29401) P.O. Box 486 Charleston, SC 29402 Telephone: (843) 577-9440 Facsimile: (843) 720-1777 E-mail: cshoun@nexsenpruet.com rricard@nexsenpruet.com CHARTSWAP LLC: Cobb Suit Removed to D.S.C. ------------------------------------------ The case styled NATHAN COBB, individually and on behalf of all others similarly situated, Plaintiff v. CHARTSWAP, LLC; CHARLESTON RADIOLOGISTS, P.A.; and ACS PRIMARY CARE PHYSICIANS SOUTHEAST, P.C., Defendants, Case No. 2022CP2000337, was removed from the Court of Common Pleas for Fairfield County, South Carolina, to the United States District Court for the District of South Carolina on January 9, 2023. The Clerk of Court for the District of South Carolina assigned Case No. 0:23-cv-00094-BHH to the proceeding. The Plaintiff alleges Defendants are responsible for charging allegedly unlawful fees in fulfilling request for copies of medical records and bills and seeks a variety of relief, including compensatory damages, prejudgment interest, punitive damages, reasonable costs and expenses, including reasonable attorneys' fees, an injunction prohibiting Defendants from further purported violation of the South Carolina Physicians' Patient Records Act, and a declaratory judgment finding that Defendants' conduct violates the Patient Records Act. ChartSwap, LLC provides Internet based services. The Company offers hospitals and other medical care facilities with the ability to securely delivery patient records. ChartSwap serves the medical sector in the United States.[BN] The Defendant is represented by: Cheryl D. Shoun, Esq. Rhett D. Ricard, Esq. NEXSEN PRUET, LLC 205 King Street, Suite 400 (29401) P.O. Box 486 Charleston, SC 29402 Telephone: (843) 577-9440 Facsimile: (843) 720-1777 E-mail: cshoun@nexsenpruet.com rricard@nexsenpruet.com CHARTSWAP LLC: Cook Suit Removed to D.S.C. ------------------------------------------ The case styled VAUGHN COOK, individually and on behalf of all others similarly situated, Plaintiff vs. CHARTSWAP, LLC; CHARLESTON RADIOLOGISTS, P.A.; and ACS PRIMARY CARE PHYSICIANS SOUTHEAST, P.C., Defendants, Case No. 2022CP1005274, was removed from the Court of Common Pleas for Charleston County, South Carolina, to the United States District Court for the District of South Carolina on January 9, 2023. The Clerk of Court for the District of South Carolina assigned Case No. 2:23-cv-00091-BHH to the proceeding. The Plaintiff alleges Defendants are responsible for charging allegedly unlawful fees in fulfilling request for copies of medical records and bills and seeks a variety of relief, including compensatory damages, prejudgment interest, punitive damages, reasonable costs and expenses, including reasonable attorneys' fees, an injunction prohibiting Defendants from further purported violation of the South Carolina Physicians' Patient Records Act, and a declaratory judgment finding that Defendants' conduct violates the Patient Records Act. ChartSwap, LLC provides Internet based services. The Company offers hospitals and other medical care facilities with the ability to securely delivery patient records. ChartSwap serves medical sector in the United States.[BN] The Defendant is represented by: Cheryl D. Shoun, Esq. Rhett D. Ricard, Esq. NEXSEN PRUET, LLC 205 King Street, Suite 400 (29401) P.O. Box 486 Charleston, SC 29402 Telephone: (843) 577-9440 Facsimile: (843) 720-1777 E-mail: cshoun@nexsenpruet.com rricard@nexsenpruet.com CHARTSWAP LLC: Gamble Suit Removed to D.S.C. -------------------------------------------- The case styled KARLEISHA GAMBLE, individually and on behalf of all others similarly situated, Plaintiff v. CHARTSWAP, LLC; CAROLINA RADIOLOGY ASSOCIATES, LLC, d/b/a CAROLINA RADIOLOGY ASSOCIATES; and ACS PRIMARY CARE PHYSICIANS SOUTHEAST, P.C., Defendants, Case No. 2022CP2607249, was removed from the Court of Common Pleas for Horry County, South Carolina, to the United States District Court for the District of South Carolina on January 9, 2023. The Clerk of Court for the District of South Carolina assigned Case No. 4:23-cv-00093-BHH to the proceeding. The Plaintiff alleges Defendants are responsible for charging allegedly unlawful fees in fulfilling request for copies of medical records and bills and seeks a variety of relief, including compensatory damages, prejudgment interest, punitive damages, reasonable costs and expenses, including reasonable attorneys' fees, an injunction prohibiting Defendants from further purported violation of the South Carolina Physicians' Patient Records Act, and a declaratory judgment finding that Defendants' conduct violates the Patient Records Act. ChartSwap, LLC provides Internet based services. The Company offers hospitals and other medical care facilities with the ability to securely delivery patient records. ChartSwap serves the medical sector in the United States.[BN] The Defendant is represented by: Cheryl D. Shoun, Esq. Rhett D. Ricard, Esq. NEXSEN PRUET, LLC 205 King Street, Suite 400 (29401) P.O. Box 486 Charleston, SC 29402 Telephone: (843) 577-9440 Facsimile: (843) 720-1777 E-mail: cshoun@nexsenpruet.com rricard@nexsenpruet.com CHARTSWAP LLC: LaCount Suit Removed to D.S.C. --------------------------------------------- The case styled FRANCES LACOUNT, individually and on behalf of all others similarly situated, Plaintiff v. CHARTSWAP, LLC; CAROLINA RADIOLOGY ASSOCIATES, LLC, d/b/a CAROLINA RADIOLOGY ASSOCIATES; DIAGNOSTIC RADIOLOGY OF ANDERSON, P.A.; and ACS PRIMARY CARE PHYSICIANS SOUTHEAST, P.C., Defendants, Case No. 2022CP0402366, was removed from the Court of Common Pleas for Anderson County, South Carolina, to the United States District Court for the District of South Carolina on January 9, 2023. The Clerk of Court for the District of South Carolina assigned Case No. 8:23-cv-00095-BHH to the proceeding. The Plaintiff alleges Defendants are responsible for charging allegedly unlawful fees in fulfilling request for copies of medical records and bills and seeks a variety of relief, including compensatory damages, prejudgment interest, punitive damages, reasonable costs and expenses, including reasonable attorneys' fees, an injunction prohibiting Defendants from further purported violation of the South Carolina Physicians' Patient Records Act, and a declaratory judgment finding that the Defendants' conduct violates the Patient Records Act. ChartSwap, LLC provides Internet based services. The Company offers hospitals and other medical care facilities with the ability to securely delivery patient records. ChartSwap serves the medical sector in the United States.[BN] The Defendant is represented by: Cheryl D. Shoun, Esq. Rhett D. Ricard, Esq. NEXSEN PRUET, LLC 205 King Street, Suite 400 (29401) P.O. Box 486 Charleston, SC 29402 Telephone: (843) 577-9440 Facsimile: (843) 720-1777 E-mail: cshoun@nexsenpruet.com rricard@nexsenpruet.com CHRISTENSEN BROTHERS: Stipulation to Strike Declarations OK'd ------------------------------------------------------------- In the class action lawsuit captioned as SEVERO JOHN HERNANDEZ, UMEET NAND, KRISTOFER BARR, on behalf of 13 themselves and all others similarly situated, v. CHRISTENSEN BROTHERS GENERAL ENGINEERING, INC., a California Corporation; CALEB CHRISTENSEN, and DOES 1-20, inclusive, Case No. 5:22-cv-00836-AB-SP (C.D. Cal.), the Hon. Judge Andre Birotte Jr. entered an order granting stipulation to strike certain declarations submitted by the plaintiffs in support of for class certification under Rule 23, conditional collective action. 1. Ernesto Ascensio declaration, dated October 27, 2022, and marked as Exhibit 63 in Plaintiffs' motion for class certification. 2. Ernesto Ascensio Sr. declaration, dated November 4, 2022, and marked as Exhibit 64. 3. Manuel Jordan declaration, dated October 28, 2022, and marked as Exhibit 67. 4. Mario Lopez declaration, dated November 1, 2022, and marked as Exhibit 69. 5. Francisco Molina declaration, dated November 4, 2022, and marked as Exhibit 70. 6. Steven Sanchez declaration, dated November 14, 2022, and marked as Exhibit 78 in Plaintiffs' Motion for Class Certification. Christensen Brothers is a General Contractor, Specialty Contractor that serves the Apple Valley, CA area and specializes in Project Management, Masonry, Demolition, Concrete, General Construction Management, Earthwork. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3XgQtpF at no extra charge.[CC] CHROMALLOY GAS: Bid for Arbitration Granted; Querette Suit Stayed ----------------------------------------------------------------- In the case, JAMES QUERETTE and VINCENT ISERNIA, Plaintiffs v. CHROMALLOY GAS TURBINE LLC, Defendant, Case No. 22-CV-00356 (PMH) (S.D.N.Y.), Judge Philip M. Halpern of the U.S. District Court for the Southern District of New York grants the Defendant's motion to compel the Plaintiffs to arbitrate their claims and stay the action pursuant to 9 U.S.C. Sections 3-4. The Plaintiffs commenced the putative class action against Chromalloy on Jan. 14, 2022. They assert a single claim for relief: untimely payment of wages in violation of New York Labor Law Section 191(1)(a). The Plaintiffs, former employees of the Defendant, allege that the Defendant violated New York Labor Law Section 191(1)(a), which requires that employers pay certain employees on a weekly basis. As relevant to the instant dispute, the Defendant entered into a collective bargaining agreement ("CBA"), effective from Sept. 19, 2018 through Sept. 18, 2021, with Local 475 IUE-CWA (the "Union"). The Plaintiffs do not dispute that they were both members of the Union during the relevant period and therefore subject to the terms of the CBA. Article 14 of the CBA creates a five-step process governing grievances related to Union members' employment, which culminates in arbitration. This section broadly defines "grievance" to include "any and all claims arising out of, or relating in any way to, this Agreement, including without limitation, any and all statutory claims between or involving the Employer and the Union or any member thereof which relate in any way to a Union member's employment by the Employer." Article 14 also states that all Grievances "shall be subject to the procedures set forth in this Article 14, including without limitation the arbitration procedures." If a Grievance is not resolved after the first four steps of the process, step five is arbitration before the American Arbitration Association ("AAA"). Section 14.F of the CBA states: "Any arbitration will be governed by the Federal Arbitration Act. Only the Union or the Defendant can commence an arbitration under the grievance procedures. Section G of Article 14, captioned "Exclusive Recourse to Agreement," states that the grievance process is the exclusive means of dispute resolution for disputes arising under the CBA. Before the Court is the Defendant's motion to compel the Plaintiffs to arbitrate their claims and stay the action pursuant to 9 U.S.C. Sections 3-4. The parties' dispute concerns two issues. First, whether the CBA clearly and unmistakably delegated the issue of arbitrability to the arbitrator. Second, if the CBA did not delegate the issue of arbitrability to the arbitrator, whether the Private Counsel Carveout exempts the Plaintiffs' claim from arbitration. Judge Halpern opines that the Defendant has not met its burden in overcoming the presumption that arbitrability "should be resolved by the court and not referred to an arbitrator." Accordingly, he, rather than the arbitrator, must decide whether the Plaintiffs' claim is arbitrable. Judge Halpern turns to whether the Private Counsel Carveout exempts the Plaintiffs' claim from the CBA's arbitration requirement. He holds that the Private Counsel Carveout does not apply to the Plaintiffs' claim and therefore the instant dispute is subject to the arbitration agreement contained in Article 14 of the CBA. He finds that interpreting the Private Counsel Carveout to mean that Union members can choose to bring those statutory claims specifically identified in Article 1 -- under federal and state non-discrimination and family-leave laws -- in a forum other than arbitration with counsel of their own choosing, gives meaning to all provisions of the CBA. It would be inappropriate to interpret a carefully negotiated instrument such as the CBA to allow Union members, such as the Plaintiffs, to sidestep the grievance process entirely for claims related to the payment of wages simply by retaining private counsel as permitted for a limited and specified number of claims set forth in the CBA. For the foregoing reasons, Judge Halpern grants the Defendant's motion to compel arbitration. He stays the action pending arbitration. The Clerk of the Court is respectfully directed to: (i) terminate the motion sequence pending at Doc. 19; and (ii) administratively close the case, without prejudice to either party moving to reopen the case within 30 days of the conclusion of the arbitration proceedings. A full-text copy of the Court's Jan. 10, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/mumhfmbx from Leagle.com. CIGARS DIRECT: Velazquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Cigars Direct, Inc. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Cigars Direct, Inc., Case No. 1:23-cv-00380-RA (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cigars Direct -- https://www.cigarsdirect.com/ -- is the cigar shop online to purchase cigars, samplers, cigarillos, flavored cigars, smoking accessories, and more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com COLLECTION PROFESSIONALS: McGrady Seeks to Modify Scheduling Order ------------------------------------------------------------------ In the class action lawsuit captioned as KENNETH MCGRADY, Individually, and On Behalf of All Other Similarly Situated, v. COLLECTION PROFESSIONALS, INC., a Wyoming corporation, BARNEY & GRAHAM, LLC, WESTON T. GRAHAM, CHRISTOPHER COCCIMIGLIO, and DAVID C. COCCIMIGLIO, Case No. 1:22-cv-00100-SWS (D. Wyo.), the Plaintiff asks the Court to enter an order granting his motion to modify initial scheduling order filed in this case on July 28, 2022: On December 2, 2022, the Plaintiff served interrogatories, requests for production of documents and requests for admissions separately upon all defendants. On January 9, 2023, Barney & Graham, LLC and Weston Graham timely responded to the Discovery pursuant to a prior extension agreement with the plaintiff. On January 3, 2023, Plaintiff emailed counsel for Collection Professionals, Inc., Christopher Coccimiglio, and David Coccimiglio (hereinafter referred to jointly as "CPI") seeking to secure CPI's responses to Discovery and their initial disclosures in which an extension to respond to Discovery was offered for January 9, 2023. As of January 13, 2023, Plaintiff has not received CPI's responses to the Discovery. The only communication from CPI regarding Discovery was in response to Plaintiff's attempt to confer on this motion in which counsel for CPI represented some personal difficulties contributing to CPI's failure to respond to the Discovery. Collection Professionals is a full service third party Debt Collection agency. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3GLywbH at no extra charge.[CC] The Plaintiff is represented by: Mr. Bret T. Allred, Esq. YELLOWSTONE LAW GROUP LLC 117 N. Bent Street, Ste C Powell, WY 82435 Telephone: (307) 271-1034 E-mail: bret@YellowstoneLawGroup.com COMPASS MINERALS: Local 338 Named Lead Plaintiff in IBT Suit ------------------------------------------------------------ In the case, IBT EMPLOYER GROUP WELFARE FUND, LOCAL 295, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. COMPASS MINERALS INTERNATIONAL, INC., et al., Defendants, Case No. 22-cv-2432-EFM-ADM (D. Kan.), Magistrate Judge Angel D. Mitchell of the U.S. District Court for the District of Kansas grants Retail Wholesale Department Store Union Local 338 Retirement Fund's Motion for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Counsel. Local 295 brought the putative class action under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), alleging violations of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a) ("Exchange Act"), and rules promulgated thereunder. Local 295 filed the action on Oct. 21, 2022, individually and on behalf of all others similarly situated, alleging that Defendants Compass Minerals; its former CEO, Francis J. Malecha; its former CFO, James D. Standen; and its former Senior VP, Anthony J. Sepich, defrauded investors who purchased Compass Minerals common stock between Oct. 31, 2017, and Nov. 18, 2018. Compass Minerals is a publicly traded company that mines and produces minerals, including salt for deicing roadways. The complaint alleges that Compass Minerals operates the largest underground rock salt mine in the world in Goderich, Ontario, Canada. Before the start of the class period, it announced it was investing in upgrades to the Goderich mine, which it forecasted would save the company approximately $30 million annually beginning in 2018. Beginning in October 2017 and continuing throughout the class period, the Defendants repeatedly assured investors that the mine upgrades were on track to materially reduce costs and boost Compass Minerals' operating results starting in 2018. But, Local 295 alleges, the Defendants failed to tell investors that costs at the Goderich mine were actually increasing, not decreasing, and the Defendants over-represented the mine's salt-production amounts. Local 295 claims that the Defendants' conduct and false and misleading statements artificially inflated the price of Compass Minerals stock and operated as a fraud on class-period purchasers who were injured when the value of the stock "fell precipitously." The same day that Local 295 filed the complaint, its counsel caused a notice to be published in Business Wire, a national business-oriented wire service, titled "CMP INVESTOR ALERT: Robbins Geller Rudman & Dowd LLP Files Class Action Lawsuit Against Compass Minerals International, Inc. and Announces Opportunity for Investors with Substantial Losses to Lead Case." The notice informed investors of the lawsuit and class allegations therein, explained the PSLRA's process for appointment of lead plaintiff, and advised that "Lead plaintiff motions for the Compass Minerals class action lawsuit must be filed with the court no later than Dec. 20, 2022." On Dec. 20, 2022, Local 338 filed the current Motion for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Counsel, along with its memorandum and exhibits in support. Neither Defendants nor any potential class member has filed a response to the motion, and no other potential class member has filed a motion for appointment as lead plaintiff. Judge Mitchell states that the PSLRA instructs the court to 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. It creates a rebuttable presumption that the "most adequate plaintiff" is the person or group that: (aa) has either filed the complaint or made a motion in response to a notice; (bb) has the largest financial interest in the relief sought by the class; and (cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. Having met all three elements of 15 U.S.C. Section 78u-4(a)(3)(B)(iii)(I), Judge Mitchell holds that Local 338 is entitled to the presumption of "most adequate plaintiff" under the PSLRA. With no evidence before the Court that rebuts the presumption, she is persuaded that Local 338 is the most adequate plaintiff. Hence, Local 338's motion to appoint it the Lead Plaintiff is granted. Local 338 has selected the firms of Kirby McInerney LLP and Robbins Geller Rudman & Dowd LLP to represent the class (presumably with law firm Stueve Siegel Hanson LLP, which filed the briefs, serving as local counsel). Neither Local 295 nor any other putative class member has made any argument that Local 338's chosen counsel is not sufficiently experienced or proficient, or otherwise suggested that Local 338 should not have its counsel approved if appointed lead plaintiff. Judge Mitchell has reviewed the firms' respective resumes. She finds that these firms have substantial experience litigating complex securities class actions, including in the Tenth Circuit and the District of Kansas, and are well qualified to serve as co-lead counsel. She therefore approves Local 338's selection of co-lead counsel and grants its motion in this regard. For these reasons, Local 338's Motion for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Counsel is granted. Local 338 is appointed as the Lead Plaintiff. The firms of Kirby McInerney and Robbins Geller are approved as co-lead counsel. A full-text copy of the Court's Jan. 11, 2023 Memorandum & Order is available at https://tinyurl.com/628r8evd from Leagle.com. CPA GLOBAL: Count II in Brainchild Suit Dismissed With Prejudice ---------------------------------------------------------------- In the case, BRAINCHILD SURGICAL DEVICES, LLC, Plaintiff v. CPA GLOBAL LIMITED, Defendant, Civil Action No. 1:21-cv-554 (RDA/JFA) (E.D. Va.), Judge Rossie D. Alston, Jr., of the U.S. District Court for the Eastern District of Virginia, Alexandria Division, grants the Defendant's Motion to Dismiss Count II of the Amended Class Action Complaint. The matter comes before the Court on the Defendant's Motion to Dismiss Count II brought by the Plaintiff, on behalf of itself and all other similarly situated persons and/or entities. The Court has dispensed with oral argument as it would not aid in the decisional process. The Plaintiff is a medical device company that develops medical technologies. It holds patents in the United States and abroad to protect its technologies. Governing regulations require patent holders to pay fees to renew their patents. To manage these renewal fees, the Plaintiff enlisted the help of the Defendant, a third-party patent renewal service. The patent renewal service agreement that the Parties entered into on April 24, 2018 is at the center of this dispute. The Agreement provided that the Defendant would pay the Plaintiff's patent renewal fees. In return, the Plaintiff would pay the Defendant a fixed fee per patent, plus certain other costs that included a "Funds Management Fee," a "Country Charge," and an "Official Charge." However, the Plaintiff alleges that the Defendant substantially overcharged it in violation of the Agreement. The Plaintiff further alleges that, to hide this overcharging, the Defendant issued opaque invoices to it that are devoid of any meaningful breakdown. It alleges that, prior to the formation of the contract, the Defendant misrepresented that it would only charge the Plaintiff the fixed fee plus the aforementioned other costs, in part, at the direction of the Defendant's then-CEO, Simon Webster. Moreover, the Plaintiff alleges that Webster used his position to continue the overcharging scheme throughout the Defendant's customer relationships, as well as the scheme of marketing its services as if no overcharging would occur and concealing its plans to overcharge customers once contracts had been signed. The Plaintiff initiated the action by filing suit in this Court on May 2, 2021. On Aug. 12, 2021, the Defendant moved to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court granted in part and denied in part the Defendant's initial Motion to Dismiss ("Initial Motion"). Specifically, it denied the Defendant's Initial Motion with respect to Count I of the Complaint, wherein the Plaintiff alleged a claim for breach of contract. It granted the Defendant's Initial Motion with respect to Counts II, III, IV, and V of the Complaint, which set forth claims for breach of the covenant of good faith and fair dealing, fraudulent concealment, unjust enrichment, and injunctive relief, respectively. The Court further dismissed Counts II and V with prejudice. However, it dismissed Count III of the Complaint -- the Plaintiff's fraud claim -- without prejudice, granting the Plaintiff leave to amend the Complaint with allegations containing the particularity Rule 9(b) demands. On April 21, 2022, the Plaintiff filed its Amended Complaint, bringing two claims: a breach of contract claim and a fraud claim. Then, on May 5, 2022, the Defendant filed the instant Motion along with a Memorandum in Support, arguing that the Plaintiff's Amended Complaint still fails to state a plausible claim for fraudulent concealment and does not comport with the heightened pleading standard of Rule 9(b). On May 19, 2022, the Plaintiff filed its Opposition to the Defendant's Motion, and on May 25, 2022, the Defendant filed a Response in support of its Motion. Because Count II of the Amended Complaint sounds in fraud, Judge Alston holds that the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies. The Plaintiff must therefore allege the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby. In other words, it is required to identify "the who, what, when, where, and how of the alleged fraud before access to the discovery process should be granted." In its March 31, 2022 Memorandum Opinion and Order, the Court found that the Plaintiff's allegations that the Defendant made pre-contractual misrepresentations and omissions to induce the Plaintiff and other members of the class to enter into renewal service agreements were actionable as fraud under the general pleading standard. But the Court concluded that the Plaintiff failed to plead its fraudulent concealment claim with the requisite particularity under Rule 9(b). In granting the Plaintiff leave to amend, the Court made clear that, for an amended complaint to survive a 12(b)(6) motion, the Plaintiff would have to allege with particularity (1) "which material facts were concealed," (2) "who is responsible for the concealing," and (3) "the manner of concealment." Judge Alston considers whether the Amended Complaint satisfies each of these requirements. Because the Plaintiff points to no occasions on which the Defendant made misrepresentations or omissions other than when entering into the Agreement, Judge Alston finds that the Plaintiff does not allege the material facts at issue with sufficient particularity. Judge Alston also does not find that the Amended Complaint complies with the Court's previous instruction to plead who is responsible for the concealing by merely alleging that the Defendant intentionally concealed and misrepresented material facts. Nor does merely accusing Webster of directing the overcharging scheme and other executives of turning a blind eye to the scheme satisfy the requirement of identifying which executives made misrepresentations to or omitted material facts from the Plaintiff. Moreover, Judge Alston says the Plaintiff's allegations are not sufficiently detailed to make the Defendant aware of what material facts were misrepresented or omitted, which of the Defendant's officers made the misrepresentations or omissions, and the manner in which any such misrepresentations or omissions were made. Accordingly, he once again concludes that the Plaintiff's fraud claim fails to pass Rule 9(b) muster and is dismissed. For these reasons, the Defendant's Motion is granted. Finally, the Defendant moves the Court to deny the Plaintiff leave to amend and dismiss Count II of the Amended Complaint with prejudice. Judge Alston finds that the Plaintiff does not indicate that it would be able to allege any occasions on which the Defendant misrepresented or omitted material facts besides when it entered into the Agreement. Accordingly, she denies the Plaintiff leave to amend and dismisses Count II of the Amended Complaint with prejudice. A full-text copy of the Court's Jan. 11, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/2p8udh8v from Leagle.com. CROSS RIVER BANK: Court Narrows Claims in Greenfield Suit --------------------------------------------------------- In the class action lawsuit captioned as JULIA GREENFIELD, v. CROSS RIVER BANK, Case No. 3:21-cv-09296-MMC (N.D. Cal.), the Hon. Judge Maxine M. Chesney entered an order: 1. granting in part and denying in part defendant's motion to dismiss and strike; 2. granting defendant's motion to strike class allegations; 3. affording plaintiff leave to amend; and 4. continuing case management conference. By order filed July 26, 2022, the Court granted CRB's motion to strike the class allegations contained in the initial Complaint, finding Greenfield had failed to show a determination as to whether class members' applications were complete could be conducted without engaging in an individualized review of each application. Greenfield was, however, afforded leave to amend. Greenfield, in addition to bringing an individual claim, seeks to certify the following two classes: "All PPP loan applicants located in the United States (1) who, in 2021, completed a loan application to Cross River Bank and received a "Application Complete!" message from Cross River Bank's portal(s); (2) who were given the following reason for denial: "Reason for Denial: Insufficient information or documentation to make a PPP credit decision" and/or "Unfortunately, the application(s) referenced below was (were) not successful in this attempt for approval through our automated system," and (3) who did not receive any other statement of reasons for Cross River Bank's denial of their PPP loan application from Cross River Bank within 30 days of such denial;" and "All PPP loan applicants located in the United States (1) who, in 2020, received a PPP loan from Cross River Bank and (2) who, in 2021, completed a loan application to Cross River Bank using data consistent with their 2020 PPP loan application; (3) who were given the following reason for denial: "Reason for Denial: Insufficient information or documentation to make a PPP credit decision" and/or "Unfortunately, the application(s) referenced below was (were) not successful in this attempt for approval through our automated system," and (4) who did not receive any other statement of reasons for Cross River Bank's denial of their PPP loan application from Cross River Bank within 30 days of such denial. Cross River is an American financial services organization that provides technology infrastructure to fintech and technology companies. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3GIU2hm at no extra charge.[CC] DELTA COUNTY, TX: Taylor, et al., File Bid for Class Certification ------------------------------------------------------------------ In the class action lawsuit captioned as PATRICK ANDRE TAYLOR II & TITUS WILEY, on behalf of themselves and of all others similarly situated, v. DELTA COUNTY, FORMER SHERIFF RICKY SMITH, CHARLA SINGLETON, COUNTY ATTORNEY JAY GARRETT, COUNTY JUDGE JASON MURRAY, and ZACH WILLIAMSON, Case No. 4:22-cv-00250-ALM (E.D. Tex.), the Plaintiffs ask the Court to enter an order certifying the following classes identified in their amended complaint: (i) All persons issued citations by Defendant Williamson while he operated unlawfully as a Delta County Sheriff's Deputy; and (ii) All persons arrested or detained and issued criminal charges by Defendant Williamson while he operated unlawfully as a Delta County Sheriff's Deputy." The Plaintiffs contend that their constitutional rights were violated when they were unlawfully fined and detained by Defendant Williamson. Similarly, the proposed class consists of individuals cited, arrested, detained, or criminally charged by Defendant Williamson while he did not possess a valid peace officer's license. Although there may be minor factual disparities, the proposed class would have identical legal claims to those of the named Plaintiffs. On July 15, 2022, the Plaintiffs filed their Amended Complaint, on behalf of themselves and those similarly situated, seeking recovery against Defendants Delta County, former Delta County Sheriff Ricky Smith, Current Delta County Sheriff Charla Singleton, Delta County Attorney Jay Garrett, County Judge Jason Murray, and Zach Williamson based on a month-long campaign of wanton unlawful conduct in the fall of 2019 by Defendant Williamson in concert with the other Defendants. The Defendant Williamson's History of Police Misconduct On September 12, 2002, Zach Williamson was lawfully granted a Texas Peace Officer's License. The license is required to lawfully operate as a Peace Officer under the Texas law. A law enforcement agency that employs an unlicensed Peace Officer may be fined at least $1,000 per day. Between 2002 and 2019, Defendant Williamson worked at eight different law enforcement departments across Texas but had a history of jumping between law enforcement entities for short stints. A copy of the Plaintiffs' motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3QG1kahat no extra charge.[CC] The Plaintiffs are represented by: Jay D. Ellwanger, Esq. David W. Henderson, Esq. ELLWANGER LAW LLLP 400 S. Zang Blvd. Ste. 600 Dallas, TX 75208 Telephone: (469) 998-6775 Facsimile: (469) 998-6775 E-mail: jellwanger@equalrights.law dhenderson@equalrights.law DEWAYNE HILL: Scheduling Order Entered in Capital Hitch Suit ------------------------------------------------------------ In the class action lawsuit captioned as CAPITAL HITCH SERVICE, INC., on behalf of Plaintiff and the class members defined herein, v. DEWAYNE HILL; and JOHN DOES 1-10, Case No. 4:22-cv-00234-RH-MAF (N.D. Fla.), the Hon. Judge Martin A. Fitzpatrick entered a scheduling order as follows: 1. The Plaintiff has until March 13, 2023, to file a notice of voluntary dismissal after completion of settlement documents, or Plaintiff shall pursue a default judgment. 2. The January 4, 2023, deadline in which to file a motion for class certification pursuant to Local Rule 23.1 is stayed. 3. The Clerk of Court shall return this file upon Plaintiff's filing a response to this Order, or no later than March 13, 2023. The Capital Hitch filed a complaint in late June 2022 alleging a violation of the Telephone Consumer Protection Act. The Defendant Hill was served with process, but failed to file a response to the complaint. The Clerk entered a default on the docket on October 6, 2022. On January 3, 2023, the Plaintiff filed a notice of settlement. The Plaintiff advises that completion of settlement documents will take between 45 and 60 days, and requests that all pending deadlines by stricken. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3GRcJQe at no extra charge.[CC] ELAP SERVICES: South Broward Hospital Seeks Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as SOUTH BROWARD HOSPITAL DISTRICT d/b/a MEMORIAL HEALTHCARE SYSTEM, on behalf of itself and all others similarly situated, v. ELAP SERVICES, LLC, a Pennsylvania limited liability company, and GROUP & PENSION ADMINISTRATORS, INC., a Texas corporation, Case No. 0:20-cv-61007-AHS (S.D. Fla.), the Plaintiff asks the Court to enter an order: 1. certifying the classes defined by Memorial pursuant to Rule 23(a), (b)(2), (b)(3), and (c)(4); and 2. designating Memorial as class representative and Benjamin Widlanski of Kozyak Tropin & Throckmorton LLP and Danya Pincavage of Wolfe Pincavage LLP as class counsel. Memorial further seeks certification of a nationwide issue class on the question of whether Defendants have unjustly retained benefits realized from its RBP scheme. The case centers around one issue: ELAP's uniform and unfair application of a healthcare repricing formula that slashes payments to hospitals well below the reasonable value of the services provided. ELAP applies its formula, which it calls "Reference-Based Pricing" ("RBP"), uniformly across all hospital claims at issue regardless of the nature of the service provided or the circumstances of a patient's treatment. The class is defined as follows: -- The Florida Emergent Class "All hospitals in Florida with emergent Claims for healthcare services provided to ELAP plan members within the applicable statute of limitations." -- The Florida Nonemergent Class "All hospitals in Florida with non-emergent Claims for healthcare services provided to ELAP plan members within the applicable statute of limitations." -- The Nationwide Issue Class: "On the issue of whether ELAP and GPA unjustly retained benefits realized due to their application of RBP, all hospitals nationwide that have Claims for providing healthcare services to ELAP plan members within the applicable statute of limitations." ELAP is a healthcare solution provider with 10 years of experience reducing employer health plan costs with its metric-based pricing solution. A copy of the Plaintiff's motion to certify classes dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3kl6gFu at no extra charge.[CC] The Plaintiff is represented by: Benjamin J. Widlanski., Esq. Gail McQuilkin, Esq. Tal J. Lifshitz, Esq. Michael Lorigas, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Blvd., 9th Floor Coral Gables, FL 33134 Telephone: (305) 372-1800 E-mail: bwidlanski@kttlaw.com gam@kttlaw.com tjl@kttlaw.com mlorigas@kttlaw.com - and - Douglas A. Wolfe, Esq. Danya J. Pincavage, Esq. Hana A. Aryan, Esq. WOLFE | PINCAVAGE 7800 SW 57th Avenue, Suite 217 Miami, FL 33143 Telephone: (786) 409-0800 E-mail: doug@wolfepincavage.com danya@wolfepincavage.com Hana.aryan@wolfepincavage.com EPIC LANDSCAPE: Gomez Seeks Leave to File Exhibits Under Seal ------------------------------------------------------------- In the class action lawsuit captioned as JOSE GONZALEZ GOMEZ, On behalf of himself and all other persons similarly situated, v. EPIC LANDSCAPE PRODUCTIONS, L.C., Case No. 2:22-cv-02198-JAR-ADM (D. Kan.), the Plaintiff asks the Court to enter an order granting him leave to file exhibits in support of his motion for class certification under seal. On November 4, 2022, the Court entered the Parties' stipulated protective order for the protection and entry of confidential information in this matter. Specifically, the Protective Order provides that information designated as "Confidential" shall be filed with the clerk under seal. The Plaintiffs filed a Motion and Memorandum in Support of Class Conditional on January 13, 2023. In support of his motion for Class Certification, Plaintiff attaches Exhibit A (Payroll records of Defendant), which has been partially redacted due to designations of confidentiality, and "Confidential" by Defendants pursuant to the Protective Order. Due to the designation by Defendants, Plaintiff seeks to have these exhibits filed under seal. Epic Landscape specializes in designing and building creative, functional and fabulous landscapes. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3GHnPahat no extra charge.[CC] The Plaintiff is represented by: Michael Hodgson, Esq. THE HODGSON LAW FIRM, LLC 3609 SW Pryor Road Lee's Summit, MO 64082 Telephone: (816) 600-0117 Facsimile: (816) 600-0137 E-mail: mike@thehodgsonlawfirm.com FIRST ADVANTAGE: Wilson Seeks Certification of Class ---------------------------------------------------- In the class action lawsuit captioned as TRYSTON WILSON, Individually And On Behalf Of All Others, v. FIRST ADVANTAGE BACKGROUND SERVICES CORP., Case No. 5:21-cv-06071 (W.D. Mo.), the Plaintiff asks the Court to enter an order: 1. Certifying the following Class in connection with the Plaintiff's claims against First Advantage: -- Proposed Conviction Class "All individuals who were the subject of one or more Consumer Reports that included language indicating that there was a "Conviction Found" when that consumer did not have a criminal conviction from May 3, 2019, through the conclusion of this matter;" Excluded from the Proposed Conviction Class are: (a) First Advantage and their employees; (b) this Honorable Court, its staff and/or immediate family; 2. Designating Tryston Wilson as Class Representative for the Proposed Conviction; 3. Appointing Brown & Watkins LLC as Class Counsel; 4. Directing Class Notice be delivered to the members of the Proposed Conviction Class; and 5. Directing the Defendant to pay for the distribution of Class Notice and all related expenses associated with notifying the Proposed Conviction Class of the case and their rights as members of the class; First Advantage provides background screening services and post-hire workforce monitoring services. A copy of the Plaintiff's motion to certify class dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3ZCaYPbat no extra charge.[CC] The Plaintiff is represented by: Charles Jason Brown, Esq. Jayson A. Watkins, Esq. BROWN & WATKINS LLC 301 S. US 169 Hwy Gower MO 64454 Telephone: (816) 424-1390 Facsimile: (816) 424-1337 E-mail: brown@brownandwatkins.com watkins@brownandwatkins.com GALAXY OF COMICS: Sookul Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Galaxy of Comics. The case is styled as Sanjay Sookul, on behalf of himself and all others similarly situated v. Galaxy of Comics, Case No. 1:23-cv-00379-JMF-BCM (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Galaxy of Comics -- https://galaxyofcomics.com/ -- in the San Fernando Valley sells comic books, graphic novels, back issues 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 GENWORTH LIFE: Class Settlement With Objectors in Haney Suit OK'd ----------------------------------------------------------------- In the case, FRED HANEY, et al., Plaintiffs v. GENWORTH LIFE INSURANCE CO., et al., Defendants, Civil Action No. 3:22cv55 (E.D. Va.), Judge Robert E. Payne of the U.S. District Court for the Eastern District of Virginia, Richmond Division, grants the Joint Motion to Approve Settlement with Objectors. The matter is before the Court on the Objectors' Settlement Motion filed by the Plaintiffs, the Defendants, and the following objectors: Michael Podoll, Dr. David Friedman, James Perry, Thomas Toman, Doug and Bonnie Ebstyne, and William and Linda Dudley, and Jane Belkin. On Dec. 13, 2022, the Court heard argument on the Objectors' Settlement Motion. Class Representatives Fred Haney, Marsha Merrill, Sylvia Rausch, Stephen Swenson, and Alan Wooten, individually and on behalf of a proposed class of Genworth Choice 2, Choice 2.1, California CADE, California Reprice, and California Unbundled policyholders as of Jan. 1, 2013, filed the class action against Defendants Genworth Life Insurance Co. ("GLIC") and Genworth Life Insurance Co. of New York ("GLICNY") (collectively "Genworth" or "Defendants"). Before the Complaint was filed, the parties engaged in three-days of mediation and extensive discovery that resulted in a Memorandum of Understanding ("MOU") that set forth the material terms of an agreement-in-principle to be incorporated into a formal Settlement Agreement for the Court's approval. The Complaint asserts two claims. Count One alleges a claim of fraudulent inducement by omission. Count Two is a claim for declaratory relief under 28 U.S.C. Section 2201. The Plaintiffs each have Choice 2, Choice 2.1, California CADE, California Reprice, or California Unbundled Long Term Care Insurance policies issued by Genworth. Long Term Care ("LTC") insurance is intended to defray the cost of home care, assisted living care, nursing home care, and other specialized skilled facility care required when an individual can no longer perform the basic activities of daily life. The Plaintiffs allege that, since 2013, Genworth has steadily and substantially increased the premiums on their LTC insurance policies. When Genworth learned that there were substantial deficiencies in its reserves going forward, it sought at least six waves of significant LTC premium rate increases to compensate for the deficiency. The Plaintiffs also allege that, to avoid reporting a current negative loss recognition testing margin, Genworth relied almost entirely on billions of dollars in future rate increases to plug the hole in its reserves. However, say the Plaintiffs, Genworth's plan for those substantial future rate increases was never shared with Genworth's LTC policyholders. In other words, it is alleged that the undisclosed information was material to decisions that LTC policyholders made respecting whether, and to what extent, to renew or retain their LTC coverage; that the undisclosed information was necessary to make accurate the information that was disclosed; and that, therefore, the omissions made the disclosed information fraudulent. It is also alleged that Genworth intended that policyholders would rely on the knowingly inadequate disclosures in making the election among their policy choices. Generally speaking, the choices given by Genworth to policyholders respecting whether, and to what extent, to maintain LTC policies were to: (1) maintain the existing LTC coverage and pay the increased premium; (2) reduce the LTC coverage and pay a lower premium; or (3) opt for a paid up LTC policy. The Plaintiffs maintain that, had they known the scope and magnitude of Genworth's plans for future rate increases, they would have made different policy option elections than they actually made. Armed with knowledge and evidence obtained in previous similar cases against Genworth, and after engaging in a period of confirmatory discovery, the Class Counsel filed Plaintiffs' Motion to Direct Notice of Proposed Settlement to the Class, which the Court granted on May 2, 2022. On July 6, 2022, the parties submitted an Amended Settlement Agreement to amend the final Release. The Court preliminarily approved the Amended Settlement Agreement on July 7, 2022, and directed that notice be sent to the Class. On Nov. 17, 2022, the Court held a hearing to give objectors the opportunity to explain their objections and for counsel to the parties to respond. The afternoon before that hearing, the parties informed the Court that an agreement had been reached with the Settlement Objectors, which counsel for Genworth described in more detail at the beginning of the November 17 hearing. On Nov. 30, 2022, the parties and settlement objectors filed the Objectors' Settlement Motion for the Court's approval. During a final approval hearing on Dec. 13, 2022, counsel for the parties and the Settlement Objectors were given an opportunity to further explain the terms of their agreement and advocate for its approval. The Amended Settlement Agreement directly addresses the alleged harm by providing the Class Members with additional Disclosures about future rate increases, and then allowing them options to either maintain their current benefits or restructure their benefits and premiums in light of those Disclosures, if they so wish. To that end, the Amended Settlement Agreement dated July 6, 2022 provides that the class members will receive a "special election letter" from Genworth, which will allow recipients to choose between keeping their current plan or electing from a selection of paid-up reduced benefit options and/or reduced benefit options some of which also entitle Class Members to damages payments. The Class members who make no elections will simply retain their current policies. The Class members who are not in non-forfeiture status (and excluding Class Members whose level of benefits are below the level of benefits available in the defined options) will receive the following election options: First Paid-Up Benefit Option: A paid-up benefit of lifetime paid-in premiums minus (1) benefits received to date, and (2) $10,000. And, in addition, a $10,000 cash damages payment. Second Paid-Up Benefit Option: A paid-up benefit of 1.5 times the difference between the class member's paid-in premiums to date minus claims paid to date. This option does not include a damages payment. Reduced Benefit Options (RBOs): For qualifying class members, options that reduce their policy benefits while also awarding them a $6,000 damages payment. A catchall RBO for otherwise non-qualifying members whereby they receive a benefits reduction and a damages payment of $1,000. Fully Paid-Up Options: Class members who are in fully paid-up status may choose between: (1) Paid-up benefits equivalent to premiums paid in, less $10,000 and less benefits received, in addition to a $10,000 damages payment; or (2) a reduction in benefits and a damages payment of $6,000. Non-Forfeiture Status Option: Retention of current paid-up benefits and a damages payment of $1,000. The Objectors' Settlement Agreement modifies two of those Special Election Options, adds a new Option, contains a release provision and agreement to withdraw the objections, and provides for attorneys' fees and incentive awards for the objecting parties. It produces the following three changes to the Special Election Options in the Amended Settlement Agreement: An option was added for class members with qualifying inflation benefits to receive a reduction in their overall benefits but retain the inflation protection and receive a damages payment of $3,000. Expanded the eligible members for the catchall RBO option and increased the damages payment from $1,000 to $1,200. Increased the damages payment for the non-forfeiture status option from $1,000 to $1,150. The release clause prevents the settlement objectors from further objecting to the settlement or delaying its implementation. The attorneys' fees and incentive awards are discussed in a separate opinion. Judge Payne explains that the "fairness" evaluation centers on the settlement process itself. In making that determination, he says a court considers (1) the posture of the case at the time settlement was proposed; (2) the extent of discovery that had been conducted; (3) the circumstances surrounding the negotiations; and (4) the experience of counsel in the area of the class action litigation. Moreover, citing In re Jiffy Lube Sec. Litig., 927 F.2d 155, 159 (4th Cir. 1991), Judge Payne notes that the "adequacy" evaluation focuses on the substance of the settlement. In assessing the adequacy of the proposed settlement, a court considers: (1) the relative strength of the plaintiffs' case on the merits; (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial; (3) the anticipated duration and expense of additional litigation; (4) the solvency of the defendant and the likelihood of recovery on a litigated judgment; and (5) the degree of opposition to the settlement. Under the Jiffy Lube factors, Judge Payne holds that the Objectors' Settlement Agreement is fair, reasonable, and adequate. He finds that (i) there was adequate time for the Settlement Objectors to fairly evaluate their options and decide whether to opt-out, retain their objections, or reach an agreement with the parties; (ii) the Plaintiffs and Genworth had adequate time to engage in discovery during pre-litigation discussions and once the Complaint was filed; (iii) there is no evidence to suggest that any fraud or collusion occurred during the negotiations; and (iv) the counsel for the Settlement Objectors has significant legal experience, including in complex commercial litigation. Turning to the adequacy of the proposed settlement, Judge Payne finds that (i) the Objectors' Settlement Agreement is estimated to increase the overall Amended Settlement Agreement by at least $10 million, which shows the value that the Settlement Objectors were able to achieve; (ii) had a settlement not been reached, there was a risk of continued, perhaps lingering, litigation, which would have delayed the Class receiving their relief and would have been costly; (iii) the Amended Settlement Agreement contains a provision that ensures that Genworth is solvent and that the payment of cash damages, Contingency Fees, Class Counsel's litigation expenses, and Named Plaintiffs' service payments will not cause GLIC or GLICNY to become insolvent; (iv) there were no challenges to the Objectors' Settlement Agreement. Since the five adequacy factors all weigh in favor of settlement approval, Judge Payne finds that the Objectors' Settlement Agreement is adequate. For these reasons, Judge Payne grants the Objectors' Settlement Motion. He addresses the settlement objectors' request for attorneys' fees and incentive awards in a separate opinion. A full-text copy of the Court's Jan. 11, 2023 Memorandum Opinion is available at https://tinyurl.com/yhcs5upm from Leagle.com. GOCOLLECT LLC: Sookul Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against GoCollect, LLC. The case is styled as Sanjay Sookul, on behalf of himself and all others similarly situated v. GoCollect, LLC, Case No. 1:23-cv-00382 (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. GoCollect -- https://gocollect.com/ -- offers the latest news, market data and innovative tools to maximize the value of collection and future investments.[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 GOFUND ADVANCE: Haymount Loses Bid to Certify Class --------------------------------------------------- In the class action lawsuit captioned as HAYMOUNT URGENT CARE PC et al., v. GOFUND ADVANCE, LLC, et al., Case No. 1:22-cv-01245-JSR (S.D.N.Y.), the Hon. Judge Jed S. Rakoff entered an order denying the plaintiffs' motion to certify a class. The Clerk is directed to close the motion on the docket. As stated in the Court's 12/29/22 bottom-line order and pursuant to the parties' Case Management Plan, any summary judgment motions will be due on February 13, 2023, with opening papers due February 27, 2023, and reply papers due March 6, 2023. A final pre-trial conference and argument on summary judgment motions will be held on March 15, 2023 at 4:00 PM. The Plaintiffs Haymount and its principal Robert A. Clinton Jr. have moved to certify a class of all persons nationwide who since 2018 received funding from one or more of defendants pursuant to a "merchant cash advance" ("MCA") agreement with an effective interest rate exceeding 25%. The Court denied plaintiffs' motion by bottom-line order on Dec. 9, 2022. The Plaintiffs alleges that defendants' employ business high-pressure sales tactics to get small businesses to sign up for what are in effect very high-interest loans made in violation of applicable state laws setting maximum interest rates. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3WnhJlm at no extra charge.[CC] GOLDMAN SACHS: AP-Fonden Seeks to Modify Proposed Class Period -------------------------------------------------------------- In the class action lawsuit captioned as SJUNDE AP-FONDEN, individually and on behalf of all others similarly situated, v. THE GOLDMAN SACHS GROUP, INC., et al., Case No. 1:18-cv-12084-VSB (S.D.N.Y.), the Lead Plaintiff asks the Court to enter an order modifying the proposed class period. On November 12, 2021, the Plaintiff moved the Court for an order certifying a class of: "all persons and entities that purchased or otherwise acquired The Goldman Sachs Group Inc.'s ("Goldman") common stock during the period from October 29, 2014 through December 14, 2018 (the "Class Period"), and were damaged thereby (the "Class"). The Plaintiff submits the present motion to modify the Class Period set forth in Plaintiff's pending class certification motion such that the Class Period begins on October 29, 2014, and concludes on November 8, 2018. The Plaintiff seeks to make this slight adjustment to the Class Period dates to align its class certification motion with the analysis and conclusions of its expert financial economist, Joseph Mason, Ph.D., and the amendment of its allegations of loss causation in its proposed Third Amended Class Action Complaint ("TAC"). Specifically, in the TAC, the Plaintiff has removed its loss causation allegations regarding the December 17, 2018 corrective disclosure as a result of Dr. Mason's conclusion that the recovery of Goldman's stock price on December 18, 2018 negated any damages incurred from the prior trading day's stock price decline. Accordingly, and as provided in the proposed order submitted with this motion, the Plaintiff requests that the Court grant its motion to modify the Class Period and consider the pending class certification motion to apply to the following Class of Goldman investors: "All persons and entities that purchased or otherwise acquired The Goldman Sachs Group Inc.'s ("Goldman") common stock during the period from October 29, 2014 through November 8, 2018, inclusive (the "Class Period") and were damaged thereby. Excluded from the Class are: (i) Defendants; (ii) Goldman's subsidiaries and affiliates; (iii) any officer, director, or controlling person of Goldman, and members of the immediate families of such persons; (iv) any entity in which any Defendant has a controlling interest; (v) Defendants' directors' and officers' liability insurance carriers, and any affiliates or subsidiaries thereof; and (vi) the legal representatives, heirs, successors, and assigns of any excluded party. The change Plaintiff proposes does not impact any of Plaintiff's arguments in support of its motion for class certification with respect to the proposed Class Period of October 29, 2014 through November 8, 2018, which are fully addressed in its prior briefing. Goldman Sachs is a leading global investment banking, securities and investment management firm. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3CTrfWaat no extra charge.[CC] The Plaintiff is represented by: Kessler Topaz, Esq. Andrew L. Zivitz, Esq. Matthew L. Mustokoff, Esq. Johnston de F. Whitman, Jr., Esq. Jamie M. McCall, Esq. Margaret E. Mazzeo, Esq. Nathan A. Hasiuk, Esq. MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: azivitz@ktmc.com mmustokoff@ktmc.com jwhitman@ktmc.com jmccall@ktmc.com mmazzeo@ktmc.com nhasiuk@ktmc.com - and - Salvatore J. Graziano, Esq. Rebecca E. Boon, Esq. BERNSTEIN LITOWITZ, Esq. BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: sgraziano@blbglaw.com rebecca.boon@blbglaw.com GOVERNMENT EMPLOYEES: Biscardi Wins Bid for Class Certification --------------------------------------------------------------- In the case, BRIDGET BISCARDI, CRAIG NEIDLINGER, and STEPHANIE KOONTZ, on behalf of themselves and all others similarly situated, Plaintiffs v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, d/b/a GEICO, a Maryland Corporation, Defendant, Case No. GJH-21-2240 (D. Md.), Judge George J. Hazel of the U.S. District Court for the District of Maryland, Southern Division, grants the Plaintiffs' Motion for Conditional Certification. The Plaintiffs, individually and on behalf of all others similarly situated, bring this civil action against GEICO, for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201, et seq. The action arises out of GEICO's alleged violations of the FLSA for failure to compensate employees for overtime work. The Plaintiffs bring the action on behalf of themselves and all other non-exempt Auto Claim and/or Damage Adjusters (collectively, "Adjusters") throughout the United States (with the exception of those employed in California, Florida, Massachusetts, New Jersey, New York, North Carolina, Ohio, and Pennsylvania). GEICO is an insurance company that employs Adjusters to investigate auto insurance claims and determine GEICO's liability. It is a Maryland corporation with a principal place of business in Maryland. According to the Amended Complaint, the Plaintiffs are employees who previously worked or continue to work for GEICO as Adjusters. Adjusters have numerous duties, including the following: processing insurance claims; calling customers; inspecting vehicles for collision and comprehensive damages; managing accurate funds for issuance of claims payments; submitting online reports; and driving to customer homes or working in auto body shops to assess vehicle damage. As Adjusters, the Plaintiffs assert that they were required to meet a quota of processing or working on assigned claims. Adjusters are commonly scheduled to work 7.75 hour per day, five days per week, for a total of approximately 38.75 hours of work per week. Each day is scheduled to be approximately 8.5 hours long, with a 45-minute lunch break. However, the Plaintiffs allege that they were regularly required to work additional hours beyond this schedule and were pressured not to report the extra hours worked. Thus, they worked additional hours while "off the clock" and without receiving compensation. GEICO allegedly pressured the Plaintiffs not to report overtime work by disciplining employees who did not reach their quotas during regular working hours. Further, the Plaintiffs allege that GEICO and its managers "routinely manipulate timecards of employees" in order to make it appear that employees took their designated meal break even when they did not. According to the Amended Complaint, GEICO's purportedly unlawful conduct has been "widespread, repeated, and consistent throughout its operations in the United States" and its actions stem from a corporate policy to limit labor expenses. In their Motion for Conditional Certification, the Plaintiffs submit that 16 Named and Opt-in Plaintiffs, who have "worked in many locations around the country, under multiple different supervisors," have filed consents to join the action. They have submitted 12 declarations on behalf of GEICO Adjusters attesting to the allegations. They allege that they have also identified "over 30 additional Adjusters" subject to GEICO's common practice of requiring Adjusters to work off-the-clock without pay. The Plaintiffs have also submitted 18 declarations by Adjusters who have brought claims in factually similar cases around the country. On Aug. 31, 2018, the Plaintiffs filed a Complaint against the Defendant. On April 28, 2022, the filed an Amended Complaint, and on April 29, 2022, they filed a Motion for Conditional Certification pursuant to section 216(b) of the FLSA. On May 27, 2022, the Defendant responded to the Plaintiffs' Motion for Conditional Certification, and on June 10, 2022, the Plaintiffs replied. The Plaintiffs have also filed several notices of supplemental authority. The Plaintiffs argue that they have met the lenient burden required for conditional certification. The Defendants, however, contend that conditional certification is not appropriate for several reasons. First, they argue that the Plaintiffs provide no evidence of explicit direction by management or a GEICO policy demanding employees work off the clock. As the Defendants assert, there is no account of any specific communication from management, much less any specific directive to work overtime without recording it. Nevertheless, while it is true that "mere allegations" are not sufficient to support conditional certification, Judge Hazel holds that it is equally true that employees cannot be expected to have evidence of a stated policy of refusing to pay overtime. He finds that the Plaintiffs have alleged a common policy sufficient to warrant conditional certification. The Defendants also assert that certification is inappropriate because the Plaintiffs' claims are too individualized to support a collective action. The Plaintiffs provide that Adjusters' duties include the following: processing insurance claims; calling customers; inspecting vehicles for collision and comprehensive damages; managing funds for the issuance of claim payments; submitting online reports; and driving to customer homes or working in auto body shops to assess vehicle damage. Judge Hazel finds that "all members of the proposed class share at least a manageably similar factual setting with respect to job requirements and pay provisions" and "common questions of law and liability predominate." The Defendants further assert that certification of a nationwide collective is "rare." However, courts in this district have found that conditional certification of a nationwide collective may be appropriate where the claims appear to arise from similar job requirements and pay provisions across the country. Judge Hazel finds that the Plaintiffs have properly alleged that GEICO Adjusters across the country share the same "essential duties" as required for a collective action, at least at this stage. Further, although the "crux of the 'similarly situated' analysis is not quantitative," he would note that the Plaintiffs have nonetheless provided a substantial number of declarations from employees across a number of states alleging factually similar issues. Lastly, the Defendant appears to suggest that this Court should follow the lead of courts that apply "a higher standard" to plaintiffs when "some discovery has taken place" before a decision is made on conditional certification. They, however, has not pointed to any cases in this district where the intermediate standard has been applied, and, further, the majority of courts within the Fourth Circuit have declined to impose such a heightened standard at the notice stage. Taken together, Judge Hazel grants the Plaintiffs' Motion for Conditional Certification. GEICO requests several modifications to the Plaintiffs' dissemination plan. Among the concerns, it asserts that Plaintiffs should be limited to a single mailed notice, and that it should therefore not be required to provide telephone numbers or email addresses for current and former employees, nor should it be required to produce locations or dates of employment. As the Plaintiffs note, however, courts in the Fourth Circuit have frequently permitted FLSA notices to be distributed via text and email, and Judge Hazel does not find a compelling reason why notice in this matter should be limited to traditional mail. Likewise, he finds that production of information regarding dates of employment and location is commonly authorized in FLSA cases, in order to assist with the notification and opt-in process. As such, he requires GEICO to provide the requested information as part of its production to the Plaintiffs. He does not exclude Virginia or Tennessee employees at this stage. Finally, GEICO asserts that it should be allotted 10 business days, not 10 calendar days, to produce a mailing list, and that the class should be limited to those employed at least "sometime in 2019," rather than as of Aug. 31, 2018, because the statute of limitations for violations under the FLSA runs for two or three years from the time an individual files a consent form opting into litigation. In their reply brief, the Plaintiffs agree to these requests, and, therefore, GEICO will have 10 business days from the date of the present Order to produce the requested employee information, and the list of potential members will include those who were employed by GEICO as of three years prior to the date on which the list of Opt-In Plaintiffs is due. A separate Order follows. A full-text copy of the Court's Jan. 11, 2023 Memorandum Opinion is available at https://tinyurl.com/3vneyxw3 from Leagle.com. HOWARD UNIVERSITY: Ct. Sets Class Certification Deadlines in Payne ------------------------------------------------------------------ In the class action lawsuit captioned as Payne v. Howard University, Case No. 1:20-cv-03792 (D.D.C.), the Hon. Judge Dabney L. Friedrich entered an order on motion for miscellaneous relief setting class certification deadlines as follows: -- Fact discovery shall close on: October 2, 2023 -- The plaintiffs' motion for June 16, 2023 class certification shall be filed on or before: -- The defendant shall file its July 14, 2023 opposition to class certification on or before: -- The plaintiffs shall file their Aug. 18, 2023 reply on or before: -- Initial expert disclosures Nov. 6, 2023 shall occur on or before: -- Eexpert discovery shall close Jan. 8, 2024 on: -- The parties shall submit a Jan. 15, 2024 post-discovery joint status report on or before: The nature of suit states Diversity-Breach of Contract. Howard University is a private, federally chartered historically black research university in Washington, D.C.[CC] HUNT MH: Parties Seek Initial OK of Class Action Settlement ----------------------------------------------------------- In the class action lawsuit captioned as DALTON SKINNER, individually and on behalf of all others similarly situated v. HUNT MH SHARED SERVICES, LLC AND HUNT MILITARY COMMUNITIES MGMT., INC., Case No. 5:22-cv-00799-JKP (W.D. Tex.), the Parties asks the Court to enter an order g (a) granting preliminary approval of the parties' settlement; (b) certifying the class under Rule 23(b)(3); (c) appointing Plaintiff's counsel as class counsel under Rule 23(g); (d) scheduling a hearing on the fairness of the proposed settlement and setting a due date for objections; and (e) approving the proposed notice to class members and directing class counsel to mail the approved notice to class members within 14 days after the Court's order approving notice, or as soon as administratively practicable thereafter. A copy of the Parties' motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3ISvPImat no extra charge.[CC] The Plaintiff is represented by: Chris Burks, Esq. WH LAW | WE HELP 1 Riverfront Pl. – Suite 745 North Little Rock, AR 72114 Telephone: (501) 891-6000 E-mail: chris@wh.law The Defendant is represented by: Heather Murray Sager, Esq. PERKINS COIE LLP 505 Howard Street, Suite 1000 San Francisco, CA 94105 E-mail: HSager@perkinscoie.com J & L GAME INC: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against J & L Game, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. J & L Game, Inc., Case No. 1:23-cv-00277 (E.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. J&L Game -- https://www.jnlgame.com/ -- is an independently owned Video Game store located in Midtown, Manhattan of NYC.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com KEVIN COPPINGER: Lucero Seeks to Certify Pretrial Detainee Class ---------------------------------------------------------------- In the class action lawsuit captioned as Manuel Lucero, et al., v. Kevin Coppinger, et al., Case No. 1:23-cv-10088-LTS (D. Mass.), the Plaintiff asks the Court to enter an order under Rule 3 of ther Federal Rules of Civil Procedure that the case may be maintained as class action on behalf of a class comprised of the Plaintiff and all others similarly situated, namely, "all pretrial detainees and convicted prisoners of the 'Voke' units within Essex County Correctional Facility." A copy of the Plaintiff's motion to certify class dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3Xg60pUat no extra charge.[CC] LAMON CONSTRUCTION: Josephson Labor Suit Removed to E.D. Cal. ------------------------------------------------------------- The case styled DAVID JOSEPHSON, as an individual on behalf of himself and on behalf of all others similarly situated, Plaintiff v. LAMON CONSTRUCTION COMPANY INC., a California corporation, and DOES 1 through 10, inclusive, Defendants, Case No. CVCS22-0001974, was removed from the Superior Court of the State of California, County of Sutter, to the United States District Court for the Eastern District of California on January 9, 2023. The Clerk of Court for the Eastern District of California assigned Case No. 2:23-at-00017 to the proceeding. In the complaint, Plaintiff alleges, on behalf of himself and all others similarly situated, eight causes of action, seven of which are for various violations of the California Labor Code and one of which is for "Unfair Competition" under the California Business & Professions Code section 17200. The Labor Code violations underlying the complaint are "founded directly on rights created by collective bargaining agreements" and/or are substantially dependent on an analysis and interpretation of a collective bargaining agreement. Lamon Construction Company, Inc. provides construction of nonresidential buildings and other construction services.[BN] The Defendant is represented by: Aaron B. Silva, Esq. Charles R. Hellstrom, Esq. MURPHY AUSTIN ADAMS SCHOENFELD LLP 555 Capitol Mall, Suite 850 Sacramento, CA 95814 Telephone: (916) 446-2300 Facsimile: (916) 503-4000 E-mail: asilva@murphyaustin.com chellstrom@murphyaustin.com LAND O'LAKES: Cook Suit Voluntarily Dismissed Due to Settlement --------------------------------------------------------------- In the case, JOHN COOK, Plaintiff v. LAND O'LAKES, INC., Defendant, Case No. 1:20-cv-00553-JLT-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California orders the Clerk of the Court is ordered to close the file in the case and adjust the docket to reflect voluntary dismissal of the action pursuant to Rule 41(a). The Plaintiff filed the action on April 17, 2020, alleging class and individual claims. On Sept. 27, 2021, the parties initially informed the Court that the action had reached a global settlement in conjunction with a related class action in state court. On Jan. 10, 2023, a stipulation was filed to dismiss all individual and class claims in light of final court approval of the class settlement in the related state action, and judgment entered therein. In light of the stipulation of the parties and approval of the settlement in state court, the action has been terminated, and has been dismissed with prejudice and without an award of costs or attorneys' fees. A full-text copy of the Court's Jan. 11, 2023 Order is available at https://tinyurl.com/5ces44rv from Leagle.com. LEE ENTERPRISES: 8th Cir. Affirms Dismissal of All Goldsmith Claims ------------------------------------------------------------------- In the case, Steven Goldsmith, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. Lee Enterprises, Inc., et al., Defendants-Appellees, Case No. 21-3927 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit affirms the district court's order granting summary judgment and dismissing all claims. Goldsmith, a home-delivery subscriber to the St. Louis Post-Dispatch daily newspaper, filed the putative class action for damages against the owner and publisher of the Post-Dispatch1 in state court on May 14, 2019. Goldsmith alleges that the Defendants "double-billed" him for "overlapping days" in consecutive subscription invoices. The Defendants timely removed the case to federal court in June 2019 under the Class Action Fairness Act, alleging that Goldsmith is seeking aggregate class-wide damages for the applicable five-year statute of limitations period that exceed $5 million. Goldsmith filed a First Amended Class Action Complaint alleging six claims for relief under Missouri law: (1) Breach of Contract (Count I); (2) Breach of the Implied Covenant of Good Faith and Fair Dealing (Count II); (3) Unjust Enrichment (Count III); (4) Money Had and Received (Count IV); (5) Violation of the Missouri Merchandising Practices Act ("MMPA") by Unfair Practices (Count V); and (6) Violation of the MMPA by Means of Deception (Count VI). After removal, both the Defendants and Goldsmith moved for summary judgment in October 2019, prior to class certification. Following additional discovery, the Defendants filed a Renewed Motion for Summary Judgment. The district court granted summary judgment dismissing all claims. In granting the Defendants summary judgment, the district court noted that, post-discovery, the Plaintiff obtained records showing how overlaps work and how funds are credited and debited to his account. The Plaintiff can no longer conflate overlaps as a factual basis to assert that the Defendants were in fact 'double-billing.' Despite Goldsmith's allegation that the Post-Dispatch double-bills, it is undisputed by the Plaintiff that DISCUS does not deduct the applicable rate twice for a single newspaper. Therefore, the court concluded, there is no genuine issue for trial based on the Plaintiff's failure to prove a necessary element of his breach of contract claim -- damages." G Likewise, the fact that the Plaintiff has no damages because he never paid twice for the same newspaper even though it may have appeared that he did defeats the third and fourth elements of his MMPA claim -- that the Post-Dispatch acted deceptively, and that the Plaintiff suffered an ascertainable loss as a result of any deception. Nor did sending Goldsmith bills that included overlap days breach the implied covenant of good faith and fair dealing because the undisputed facts show the Post-Dispatch provided Plaintiff with the amount of newspaper content that he expected. And because the retaining and use of overlapping payments to cover future newspapers was not unjust, Goldsmith's claims for unjust enrichment and money had and received "similarly fail." Goldsmith appeals. On appeal, Goldsmith argues the district court erred in granting summary judgment dismissing his breach of contract and MMPA claims because there are genuine issues of material fact whether overlaps cost subscribers money and whether the Defendants' billing practices violate the MMPA because "overlaps are incorrect and wrong." He asks that the Eighth Circuit remands for further proceedings but does not separately address his implied covenant, unjust enrichment, and money had and received claims. As to breach of contract claim, Goldsmith first argues that the day-to-day responses to overlap problems by Post-Dispatch employees demonstrates that overlaps cost subscribers money. The Eighth Circuit finds that Goldsmith came forward with no concrete evidence that any subscriber, including those who complained, ever paid twice for the same newspaper. Evidence the Post-Dispatch attempted to fix overlap issues and apologized for the error when customers complained does not negate this undisputed fact. Failing to fix the problem may have been bad customer relations, but it does not establish the damage element of a breach of contract claim. Goldsmith based his claim on customer perception. The district court based its loss and damage decision on undisputed facts. Second, Goldsmith argues that deposition testimony of three of the Defendants' witnesses create a genuine issue of disputed fact about whether overlaps cost subscribers money. Like the district court, the Eighth Circuit disagrees. In the first place, Goldsmith's counsel objected that outside contractor Wright lacked the capacity to give an opinion that DISCUS software does not have a double charging effect on a subscriber, yet he now relies on Wright's inconsistent response to another question asking for the same opinion. Goldsmith cannot have it both ways. Second, the question to which Wright answered "yes" was improper in form -- it asked whether Wright agreed with a long convoluted statement that was inconsistent with Wright's prior testimony. Finally, even taking Wright's alleged admission at face value, it does not create a genuine dispute about a material fact on the issues of loss and damages. Third, Goldsmith argues there are disputes and inconsistencies in the way Defendants determined, from an analysis of Goldsmith's individual account, that he did not pay for more newspapers than he received. The calculation errors Goldsmith alleges range from inclusion of an undelivered paper worth $0.63 to the exclusion of $78.24 in credits. The jury should decide, Goldsmith argues, whether he in fact paid more than the sum of the Post-Dispatch's charges." The problem with this contention, according to the Eighth Circuit, is that it is immaterial to the breach of contract and MMPA class action damage claims Goldsmith asserted. Whether credits and charges unique to his individual account resulted in him paying a few dollars more or less than the value of the papers he received during the five-year damage period is not evidence that Post-Dispatch subscribers paid twice for newspapers delivered on overlap days under the DISCUS billing system. The district court did not err in granting Defendants summary judgment dismissing the claims Goldsmith asserted despite his belated raising of this unpleaded contract claim. With respect to the MMPA claims, Goldsmith must show that he (1) purchased merchandise from the Post-Dispatch; (2) for personal, family or household purposes; and (3) suffered an ascertainable loss of money or property; (4) as a result of an act declared unlawful under the MMPA. On appeal, Goldsmith argues there is a genuine issue of material fact as to whether overlaps are incorrect or wrong, and therefore an MMPA unfair practice. All that may be true, or at least debatable, but, according to the Eighth Circuit, it does not address the district court's conclusion, based on the Defendants' uncontroverted Statement of Material Facts, that Goldsmith cannot show he suffered "an ascertainable loss as a result of" the alleged unlawful billing practices. After being afforded extensive discovery, Goldsmith failed to controvert the Defendants' evidence showing that DISCUS properly deducts (amortizes) from a subscriber's payment-in-advance the applicable rate charged as each newspaper is delivered. Because Goldsmith cannot establish the ascertainable loss element of an MMPA claim, the Eighth Circit need not address his additional argument that the Post-Dispatch's billing practices are unfair or unethical. For these reasons, the Eighth Circuit concludes that where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Applying this standard of review, it affirms the grant of summary judgment as to those Counts without further discussion. A full-text copy of the Court's Jan. 11, 2023 Order is available at https://tinyurl.com/3ch6fpj2 from Leagle.com. LIFETIME BRANDS: Rodriguez Files ADA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Lifetime Brands, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Lifetime Brands, Inc., Case No. 1:23-cv-00280 (E.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lifetime Brands -- https://lifetimebrands.gcs-web.com/ -- is a leading global provider of kitchenware, tableware and other products used in the home.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com MAYFIELD CONSUMER: Aliff Consumer Suit Removed to W.D. Ky. ---------------------------------------------------------- The case styled DUSTIN ALIFF, ROBERTA BROOKS, JEFF CHISM as personal representative of the Estate of JILL MONROE, JEMARYON HART, MONSERRATE DE LA PAZ LOPEZ JUSTINIANO as personal representative of the Estate of IVAN RAMIREZ LOPEZ, CHANCE PITTS, PATRICIA SCOTT as personal representative of the Estate of KAYLA MARIE SMITH, KRISTIE WHITE, MONTEL WIGGINS, DARRYL YONTS, MARCO SANCHEZ, ELIJAH JOHNSON, WILLIAM ALIFF, MATTHEW BARBER, MARY SMITH, HALEY CONDER, MCKAYLA EMERY, MATTHEW RILEE VALIANT, and JOHN LAWSON Plaintiffs v. MAYFIELD CONSUMER PRODUCTS, LLC; JUSTIN BOBBETT; and LORENZO H. CASH, Defendants, Case No. 22-CI-00362, was removed from the Circuit Court for Graves County, Kentucky, to the United States District Court for the Western District of Kentucky, Paducah Division, on January 9, 2023. The Clerk of Court for the Western District of Kentucky assigned Case No. 5:23-cv-00005-BJB to the proceeding. The Plaintiffs purported to represent a class of "all persons similarly situated individuals" who sustained physical, mental and/or emotional injuries and/or died as a result of the December 10, 2021 tornado striking and demolishing Mayfield Consumer Products' place of business, inclusive of any loss of consortium claims, and who have not filed a civil action and/or do not have a civil action pending in state or federal court. Mayfield Consumer Products, LLC is a manufacturer of candles and other home fragrance products.[BN] The Defendants are represented by: Russell B. Morgan, Esq. Edmund S. Sauer, Esq. BRADLEY ARANT BOULT CUMMINGS LLP Roundabout Plaza 1600 Division Street, Suite 700 Nashville, TN 37203 Telephone: (615) 252-2311 Facsimile: (615) 252-6311 E-mail: rmorgan@bradley.com esauer@bradley.com - and - Megan U'Sellis, Esq. FISHER & PHILLIPS LLP 220 West Main Street Suite 1700 Louisville, KY 40202 Telephone: (502) 561-3963 E-mail: musellis@fisherphillips.com MED-CALL HEALTHCARE: Bass Seeks More Time to File Class Cert. Bid ----------------------------------------------------------------- In the class action lawsuit captioned as SHARLEY BASS, on behalf of herself and on behalf of all others similarly situated, v. MED-CALL HEALTHCARE, INC., and RISHER DUMPIT, individually, Case No. 8:22-cv-00244-CEH-TGW (M.D. Fla.), the Plaintiff asks the Court to enter an order extending her deadline to file a Motion for Class Certification by just one month, making the new deadline February 28, 2023. The Plaintiff's current deadline to file her Motion for Class Certification is currently set for January 30, 2023. However, the Parties are currently engaged in settlement discussions. Thus, Plaintiff asks that her deadline to file her Motion for Class Certification by one month so the Parties can try to resolve this matter amicably on a class basis. If they are unable to resolve this case amicably on a class basis, the Parties have agreed to conduct the key depositions in this case in February, after which Plaintiff would then file her Motion for Class Certification (but only if this Motion is granted). Med-Call offers healthcare staffing solutions. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3iHBiH7 at no extra charge.[CC] The Plaintiff is represented by: Luis A. Cabassa, Esq. Brandon J. Hillv, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: lcabassa@wfclaw.com bhill@wfclaw.com gdesane@wfclaw.com NEMACOLIN WOODLANDS: Initial Approval of Class Settlement Sought ---------------------------------------------------------------- In the class action lawsuit captioned as CHERYL HOOK, DAVID SEMAN, BARBARA BROWN, LARRY ONDAKO, and JULIA ONDAKO, individually and on behalf of all others similarly situated, v. NEMACOLIN WOODLANDS, INC., a Pennsylvania corporation, d/b/a, NEMACOLIN WOODLANDS RESORT; NEMACOLIN, INC., a Pennsylvania corporation; and NWL, CO., a Pennsylvania corporation, Case No. 2:21-cv-00387-MPK (W.D. Pa.), the Parties file joint motion for preliminary approval of amended class action settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs also ask the Court to enter an order: -- Preliminarily certifying the Settlement Class under Rule 23 of the Federal Rules of Civil Procedure for settlement purposes only; -- Provisionally appointing them Class Representatives, and appointing Joy D. Llaguno of Hook & Hook PLLC as Class Counsel; -- Approving the method of notice and the proposed Notice of Class Action Settlement to the Amended Settlement Agreement, and directing that notice of the proposed Settlement be provided to the Settlement Class in accordance with the terms and provisions of the Amended Settlement Agreement; and -- Scheduling a Final Approval Hearing to consider whether to grant final approval of the proposed Amended Settlement Agreement. Nemacolin Woodlands provides hospitality services. A copy of the Plaintiffs' motion dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3H8zK2bat no extra charge.[CC] The Plaintiffs are represented by: Joy D. Llaguno, Esq. HOOK & HOOK PLLC 430 East Oakview Drive, Suite 101 Waynesburg, PA 15370 Telephone: (724) 802-7144 Facsimile: (724) 802-7959 E-mail: jllaguno@hooklaw.com The Defendants are represented by: William E. Blick, Esq. GORDON & REES LLP 707 Grant Street, Suite 3800 Pittsburgh, PA 15219 Telephone: (412) 577-7400 Facsimile: (412) 347-5461 E-mail: wblick@grsm.com OZARKS HEALTHCARE: Vinke Suit Asserts Discrimination, Retaliation ----------------------------------------------------------------- DON VINKE, on behalf of himself and all those similarly situated, Plaintiff v. OZARKS HEALTHCARE, LLC, Defendant, Case No. 6:23-cv-03009-BCW (W.D. Mo., Jan. 9, 2023) arises from the Defendant's alleged conduct of discriminating Plaintiff in the form of hostility, bullying, and harassment in violation of the Americans with Disabilities Act, as well as retaliatory conduct against Plaintiff for his reports and complaints of discrimination and harassment. The Plaintiff and his wife, Verna Jett, have worked for Defendant as full-time employees from approximately July of 2000 through the present. The Plaintiff worked for OZH as a charge nurse in the Neuropsychology Unit, while his wife, Mrs. Jett, works for OZH as a lab technician. In April of 2019, Mrs. Jett suffered a Grand Mal Seizure and was diagnosed with epilepsy. Following her seizure, despite her remaining an exceptional employee, Mrs. Jett suffered discrimination in the form of hostility, bullying, harassment, and was passed over for promotion, asserts the complaint. After Mrs. Jett filed her Charge of Discrimination on July 20, 2021, Plaintiff experienced retaliation. On October 5, 2021, Plaintiff was terminated for "false documentation" which was pretext for terminating him in retaliation for Plaintiff and his wife's complaints of discrimination based on her disability, says the complaint. Ozarks Healthcare, LLC is a not-for-profit medical referral center.[BN] The Plaintiff is represented by: Amir Ardebili, Esq. MONSEES & MAYER, P.C. 4717 Grand Avenue, Suite 820 Kansas City, MO 64112 Telephone: (816) 361-5555 Facsimile: (816) 361-5577 E-mail: ardebili@monseesmayer.com PC RICHARD: Hearing on Class Action Settlement Set for Feb. 8 ------------------------------------------------------------- In the class action lawsuit captioned as DOUGLASS v. P.C. RICHARD & SON, LLC, Case No. 2:22-cv-00399 (W.D. Pa.), the Hon. Judge Maureen P. Kelly entered an order setting hearing regarding motion to certify class for settlement purposes and for preliminary approval of class action Settlement for Feb. 8, 2023. P.C. Richard & Son, also known as simply P.C. Richard, is a chain of private, family-owned electronics and appliances stores in the United States. The suit alleges violation of the Americans with Disabilities Act of 1990. .[CC] PERRY'S RESTAURANTS: Class Cert Bid Referred Magistrate Judge -------------------------------------------------------------- In the class action lawsuit captioned as Paschal, et al., v. Perry's Restaurants LTD, et al., Case No. 1:22-cv-00027 (W.D. Tex.), the Hon. Judge Robert Pitman entered an order on motion to certify class. -- The Plaintiff's Motion to Certify Class is referred to United States Magistrate Judge Susan Hightower for a report and recommendation pursuant to 28 U.S.C. section 636(b)(1) (B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. The suit alleges violation of the Fair Labor Standards Act.[CC] PIERCE COUNTY, WA: Lemmon State Law Claims Junked ------------------------------------------------- In the class action lawsuit captioned as EDDIE LEE LEMMON, individually and on behalf of all others similarly situated, v. PIERCE COUNTY, a Washington municipality, Case No. 3:21-cv-05390-DGE (W.D. Wash.), the Hon. Judge David G. Estudillo entered an order granting in part the Defendant's motion for summary judgment and dismissing the plaintiff's state law claims. 1. The Plaintiff's claims brought pursuant to 42 U.S.C. section 1983 are dismissed with prejudice. 2. The Court dismisses without prejudice the Plaintiff's remaining state law claims pursuant to 28 U.S.C. section 1367(c)(3); 3. The Court dismisses Plaintiff's motion to certify class as moot. The Plaintiff, in response to Defendant's argument, asserts his complaint was timely filed because he "continued to have collection fees added to his LFO debt through May 31, 2018." Additionally, the Plaintiff's LFOs were subject to interest, which increased the collection fee charged by AllianceOne per their contract with the Clerk's Office. In other words, Plaintiff argues for each day interest was charged that day's interest was subject to a .234568 collection fee. If, as Plaintiff argues, each day constitutes a new and independent harm, the only harm not subject to the three-year statute of limitations would be the alleged harm between April 26, 2018 (three years before the day the complaint was originally filed) and June 6, 2018 (the last day interest was allowed pursuant to Washington Revised Code section 10.82.090(1)). In October 2010, the Plaintiff pled guilty in Pierce County Superior Court for violating an existing domestic violence court order, assault in the second degree, and burglary in the second degree. On December 1, 2010, the Clerk's Office sent Plaintiff a letter informing him he failed to comply with the October 8th judgment and requiring him to pay $900 in LFOs. The collection agency (AllianceOne) showed a balance owed of $1,138.72 on January 4, 2011, which included the $900 the County identified as owed, plus $22.37 of interest, and AllianceOne's collection fee of $216.35. Pierce County is a county in the U.S. state of Washington. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3ZDAzY8 at no extra charge.[CC] RANDALL MECHANICAL: Fixl Seeks to Certify Collective Action ----------------------------------------------------------- In the class action lawsuit captioned as MARY FIXL, v. RANDALL MECHANICAL, INC., d.b.a. "RANDALL" and JEFFREY S. CONDELLO, Case No. 6:22-cv-00901-RBD-LHP (M.D. Fla.), the class representative Fixl asks the Court to enter an order: 1. Conditionally certifying this case as a collective action; 2. Appointing N. Ryan LaBar and Scott C. Adams of LaBar & Adams, P.A. as class counsel; 3. Appointing the named Plaintiff as Class Representative to have authority to make any and all decisions on behalf of all class members/opt-in plaintiffs concerning this litigation; 4. permitting and supervise notice to similarly situated current and former employees of Randall who: worked in the electrical or fire divisions during the preceding three years; were paid an hourly rate; and worked more than forty 40 in a workweek without being paid proper overtime compensation as a result of the time shaving or banked hours practices; 5. approving Class Representative's Notices and Opt-In Forms; 6. Directing Randall, within 10 days of the Order, to provide Class Representative with the full name, job title, dates of employment, last known address, telephone numbers, 17 and email addresses 18 for each individual in the Certified Class in a computer readable format; This is a collective action to enforce the overtime wage provisions of the Fair Labor Standards Act ("FLSA"). Randall operates a construction and contracting company in Apopka, Florida that provides a variety of services to its commercial clientele including electrical, fire protection, architectural, site work, and engineering. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3WgcK5V at no extra charge.[CC] The Plaintiff is represented by: N. Ryan Labar, Esq. Scott C. Adams, Esq. LABAR & ADAMS, P.A. 2300 East Concord Street Orlando, FL 32803 Telephone: (407) 835-8968 E-mail: rlabar@labaradams.com sadams@labaradams.com RAVALLI COUNTY, MT: Court Recommends Partial OK of Class Cert Bid ----------------------------------------------------------------- In the class action lawsuit captioned as TERI LEA EVENSON-CHILDS, DANIEL O'TOOLE, RICHARD CHURCHILL, and KEITH LEONARD, individually, and on behalf of all similarly situated individuals v. RAVALLI COUNTY; STEPHEN HOLTON, in his official capacity as RAVALLI COUNTY SHERIFF; JENNIFER RAY, in her official capacity as RAVALI COUNTY JUSTICE OF THE PEACE; JIM BAILEY, in his official capacity as RAVALLI COUNTY JUSTICE OF THE PEACE; HOWARD RECHT, in his official capacity as DISTRICT JUDGE FOR THE 21st JUDICIAL DISTRICT and JENNIFER LINT; in her official capacity as DISTRICT JUDGE FOR THE 21st JUDICIAL DISTRICT, Case No. 9:21-cv-00089-DLC-KLD (D. Mont.), the Hon. Judge Kathleen L. DeSoto recommended that: (1) The District Court Judges' motion to dismiss be granted; (2) The County Defendants' motion to dismiss be granted as to Sheriff Holton and the Justices of the Peace and denied in all other respects; (3) The Plaintiffs' renewed motion for a preliminary injunction be denied; and (4) The Plaintiffs' motion for class certification be granted in part and denied in part as follows: (a) The Plaintiffs' motion to certify the proposed main damages and main injunctive classes should be denied as to all counts; (b) The Plaintiffs' motion to certify the proposed indigent damages subclass should be denied as to all counts; and (c) The Plaintiffs' motion to certify the proposed indigent injunctive subclass should be granted as to Counts 3 through 8, and denied without prejudice as to Counts 1, 2, and 9, subject to refiling if those claims survive summary judgment. The Court should certify the following class as to Counts 3 through 8 of the Second Amended Complaint: "All indigent persons who are or will be: accused of a crime in Ravalli County, Montana, arrested, incarcerated, placed on the Jail Diversion Program, and charged pretrial fees without having been convicted for the crime for which the Jail Diversion Program was ordered. The Plaintiffs Teri Lea Evenson-Childs, Daniel O'Toole, Richard Churchill, and Keith Leonard bring this putative class action under 42 U.S.C. section 1983, challenging the Defendant Ravalli County's Jail Diversion Program on constitutional and state law grounds. Individuals arrested in Ravalli County, Montana are typically booked at the county jail and may be released by the court upon paying bail or on their own recognizance without bail. If an arrestee is released subject to conditions of supervision, the court may assign the arrestee to Ravalli County's Jail Diversion Program and specify what program conditions, such as drug testing and electronic monitoring, the arrestee will be subject to while on pretrial release. A copy of the Court's recommendation dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3Xv5DIh at no extra charge.[CC] RECOVERY REMEDIES: Douglas Seeks More Time to File Class Cert. Bid ------------------------------------------------------------------ In the class action lawsuit captioned as ALLISON DOUGLAS, on behalf of herself and others similarly situated, v. RECOVERY REMEDIES CORPORATION, Case No. 1:22-cv-05018-ELR-RDC (N.D. Ga.), the Plaintiff asks the Court to enter an order extending the time for her to file motion for class certification pursuant to Fed. R. Civ.P.23 and Civil Local Rule of Practice. The Plaintiff also seeks to enlarge the date for the filing of the motion be determined by the Court after the conclusion of the Initial Case Management Conference held pursuant to Fed. R. Civ. P. 16. On Dec. 20, 2022, the Plaintiff commenced this civil action. Counsel for the Plaintiff certifies that he sought concurrence in the motion from counsel for the Defendant and that counsel for the Defendant does not oppose the Plaintiff's request. Recovery Remedies Corporation is a debt collection agency business in Irving, Texas. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3wmbWBW at no extra charge.[CC] The Plaintiff is represented by: Eric H. Weitz, Esq. Max S. MOrgan, Esq. THE WEITZ FIRM, LLC 1515 Market, PA 19102 Philadelphia, PA 19102 Telephone: (267) 587 6240 Facsimile: (215) 689 0875 E-mail: eric.weitztheweitz.com max.morgan@theweitzfirm.com The Defendant is represented by: Greg Mitchell, Esq. Garrett E. Land, Esq. STANLEY, ESREY & BUCKLEY, LLP Promenade, Suite 2400 1230 Peachtree Street, N.E. Atlanta, GA 30309 E-mail: gmichell@seblaw.com gland@seblaw.com SAN BERNARDINO, CA: Johnson, et al., Seek Class to Certify Class ---------------------------------------------------------------- In the class action lawsuit captioned as MARLON JOHNSON; CHRISTOPHER CROWELL; KIMBERLY JEAN McLEOD; SHAUNA LEE LANDIS; JANIELLE GUZMAN; GERALD WAYNE CRUTCHER; and RAFAEL DIAZ on behalf of themselves and all others similarly situated, v. COUNTY OF SAN BERNARDINO; SAN BERNARDINO SHERIFF'S DEPARTMENT; SHERIFF JOHN MCMAHON, individually; PAUL WYNN, individually; JOE BILLINGS, individually; RICK BESSINGER, individually; ROBERT GUILLEN, individually; Does 1 through 10, Case No. 5:18-cv-01121-GW-AFM (C.D. Cal.), the Plaintiffs Marlon Johnson, Christopher Crowell, Gerald Wayne Crutcher, Rafael Diaz, Janielle Guzman, and Shauna Lee Landis will move the Court on March 23, 2023 for an order: 1. certifying Class 2 pursuant to Rule 23(b)(3) for the issues of liability and damages on the fifth cause of action for violation of Penal Code section 4030; 2. certifying Classes 1, 2, 3, and 4 and Subclasses 3A, 3B, 4A, and 4B 11 pursuant to Rule 23(c)(4) for the issue of liability on the first and second causes of 12 action (42 U.S.C. section 1983) and fifth cause of action (Penal Code section 4030); and 3. certifying Classes 1, 2, 3, and 4 and Subclasses 3B and 4B pursuant to Rule 23(b)(2) for injunctive relief. The Class Period for all classes and subclasses other than Class 2 is the period 16 May 25, 2016, to the date the classes are certified, extended pursuant to California 17 Government Code section 945.3 and Code of Civil Procedure section 352.1. The Class Period for Class 2 is the period May 25, 2015, to the date Class 2 is 19 certified, extended pursuant to California Government Code section 945.3 and Code of Civil Procedure section 352.1. Class 1 consists of those persons who were in the custody of Defendant County of San Bernardino ("County") during the Class Period, were eligible for release, were strip and visual-body-cavity searched (collectively "strip search") before their arraignment, and were cited and released, released on bail, or released on their own recognizance. Class 2 consists of those persons who were in the custody of County in the Class Period on a misdemeanor or infraction not including those involving weapons controlled substances, or violence, were strip searched prior to placement in the general jail population without the prior written authorization of the supervising officer on duty, and for whom no peace officer determined, based on specific and articulable facts, that there was reasonable suspicion to believe that person was concealing a weapon or contraband, and that a strip search will result in the discovery of the weapon or contraband. See Penal Code section 4030(e). Class 3 consists of those persons who were in the custody of County in the Class 8 Period and were strip searched at a location that did not provide privacy from other 9 persons not involved in the search. Subclass 3A consists of those persons who were in the custody of County in the Class Period at the West Valley Detention Center ("WVDC"), and were strip searched prior to October 1, 2018, at a location that did not provide privacy from other persons not involved in the search. Subclass 3B consists of those persons who were in the custody of County in the Class Period at the WVDC, and were strip searched after October 1, 2018, at a location that did not provide privacy from other persons not involved in the search. Class 4 consists of those persons who were in the custody of County in the Class Period and strip searched in a group. Subclass 4A consists of those persons who were in the custody of County in the Class Period at the WVDC and were strip searched in a group before October 1, 2018. Subclass 4B consists of those persons who were in the custody of County in the Class Period at the WVDC and were strip searched in a group after October 1, 2018. The Plaintiffs also move pursuant to Rule 23(a) for orders appointing the following class representatives: -- Class 1: Johnson, Crowell -- Class 2: Crowell, Diaz, Landis -- Class 3: Johnson, Crowell, Crutcher, Diaz, Guzman, and Landis -- Subclass 3A: Crutcher, Diaz, and Landis -- Subclass 3B: Crutcher -- Class 4: Johnson, Crowell, Crutcher, Diaz, Guzman, and Landis -- Subclass 4A: Crutcher, Diaz, and Landis -- Subclass 4B: Crutcher The Plaintiffs also move pursuant to Rule 23(g) for an order appointing Skapik Law. Group and Southern California Lawyers Group as class counsel. The Plaintiffs bring this motion on the ground that the present action and the proposed classes 1, 2, 3, and 4 and subclasses 3A, 3B, 4A, and 4B, the class representatives, and class counsel satisfy Rule 23(a), (b)(2), (b)(3), (c)(4), and (g). In 2008, the Defendant County entered into a settlement agreement in the matter of Craft v. County of San Bernardino, No. 5:05-cv-00359-VAP-OP (C.D. Cal. April 1, 28 2008) to end unconstitutional and unlawful strip searches in its jails. Since all Classes and Subclasses meet the requirements of Rule 23(a), Class 2 11 meets the requirements of Rule 23(b)(3), Classes 1, 2, 3, and 4 and Subclasses 3A, 3B, 12 4A, and 4B meet the requirements of Rule 23(c)(4), and Classes 1, 2, 3, and 4 meet the requirements of Rule 23(b)(2), Plaintiffs' motion to certify should be granted, the Plaintiffs say. A copy of the Plaintiffs' motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3QKMdwd at no extra charge.[CC] The Plaintiffs are represented by: Mark J. Skapik, Esq. Geralyn L. Skapik, Esq. Blair J. Berkley, Esq. Matthew T. Falkenstein, Esq. SKAPIK LAW GROUP 5861 Pine Avenue, Suite A-1 Chino Hills, CA 91709 Telephone: (909) 398-4404 Facsimile: (909) 398-1883 E-mail: mskapik@skapiklaw.com gskapik@skapiklaw.com bberkley@skapiklaw.com mfalkenstein@skapiklaw.com - and - Eric Christopher Morris, Esq. SOUTHERN CALIFORNIA LAWYERS GROUP 5861 Pine Ave. Suite A-1 Chino Hills, CA 91709 Telephone: (909) 398-4404 E-mail: eric.c.morris@gmail.com SAVORY SPICE SHOP: Velazquez Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Savory Spice Shop, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Savory Spice Shop, LLC, Case No. 1:23-cv-00378 (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Savory Spice Shop -- https://www.savoryspiceshop.com/ -- offers a large variety of seasonings and spices.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SEATTLE, WA: Bid for Summary Judgment vs HCL Granted in Part ------------------------------------------------------------ In the class action lawsuit captioned as HUNTERS CAPITAL, LLC; HUNTERS PROPERTY HOLDINGS, LLC; GREENUS BUILDING, INC.; SRJ ENTERPRISES d/b/a CAR TENDER; THE RICHMARK COMPANY d/b/a RICHMARK LABEL; ONYX HOMEOWNERS ASSOCIATION; WADE BILLER; MADRONA REAL ESTATE SERVICES LLC; MADRONA REAL ESTATE INVESTORS IV LLC; MADRONA REAL ESTATE INVESTORS VI LLC; 12TH AND PIKE ASSOCIATES LLC; REDSIDE PARTNERS LLC; OLIVE ST APARTMENTS LLC; BERGMAN'S LOCK AND KEY SERVICES LLC; MATTHEW PLOSZAJ; SWAY AND CAKE LLC; and SHUFFLE LLC d/b/a CURE COCKTAIL, v. CITY OF SEATTLE, Case No. 2:20-cv-00983-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order that: (1) The City's motion to strike Plaintiffs' answer to the City's Interrogatory No. 3 is denied. (2) The City's motion for summary judgment, is granted in part and denied in part as follows: a. The motion is granted as it relates to Plaintiffs' first cause of action for violation of procedural due process, second cause of action for violation of substantive due process, and fourth cause of action for negligence, and these causes of action are dismissed with prejudice. b. Without opposition, the motion is GRANTED as to Redside Partners LLC's third cause of action for taking, and the cause of action is dismissed with prejudice. c. The motion is granted in part as it relates to the remaining plaintiffs' third cause of action for taking under a per se theory of liability, and denied in part as it relates to the remaining plaintiffs' third cause of action for taking under a "right of access" theory of liability. d. The motion is denied as it relates to Plaintiffs' fifth cause of 4 action for nuisance. Unlike Atherton and Hostetler, the Court cannot conclude that the purported nuisance in this matter is premised solely on the City's alleged negligence in failing to enforce Seattle's Fire Code or Street Use Ordinance. The Plaintiffs have significantly narrowed their negligence claim. Finally, the City argues that certain causation deficiencies require dismissal of Plaintiffs' claims. The Plaintiffs are local property owners, businesses, and residents who allege that the City's response to CHOP violated their legal rights. The City considered CHOP as occurring within the approximately 16-block area in Seattle's Capitol Hill neighborhood bounded by East Denny Way (to the north), Thirteenth Avenue (to the east), East Pike Street (to the south), and Broadway (to the west). Seattle, a city on Puget Sound in the Pacific Northwest, is surrounded by water, mountains and evergreen forests, and contains thousands of acres of parkland. A copy of the Court's order dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3H88S2e at no extra charge.[CC] SERCO INC: Bid for Summary Judgment in Cherry Class Suit Granted ---------------------------------------------------------------- In the case, MALCOLM CHERRY, Plaintiff v. SERCO, INC., Defendant, Case No. 2:19-cv-353-HL (D. Or.), Judge Michael H. Simon of the U.S. District Court for the District of Oregon adopts in part Magistrate Judge Andrew D. Hallman's Findings and Recommendation and affirms his order. On Sept. 13, 2022, Judge Hallman issued his Findings and Recommendation (F&R) on the Defendant's Motion for Summary Judgment and an order denying Cherry's motion to amend the case schedule. In his F&R, Judge Hallman recommended that this Court grants the Defendant's Motion for Summary Judgment. In his case scheduling order, Judge Hallman denied the Plaintiff's motion to reopen and extend discovery and other pretrial deadlines or, in the alternative, to strike the declaration of one of Serco's witnesses and for other sanctions. Cherry timely filed an objection to the F&R as well as an appeal of Judge Hallman's case scheduling order. Judge Simon examines the order denying pretrial schedule modification. Judge Hallman concluded that Cherry had failed to show that he needed to take Megan Capozzoli's deposition to respond to Defendants' motion for summary judgment, a fact that Cherry conceded at oral argument. Judge Hallman's Order references his discussion on the record from the hearing on the Defendant's motion for summary judgment. Judge Simon has reviewed the transcript and agrees with and affirms Judge Hallman's discussion on this issue, considering the motion as one under Rule 56(d). Judge Hallman's factual findings are not clearly erroneous, and the Court has considered the Rule 56(d) legal issue de novo. Even considering Cherry's motion under Rule 16, however, Cherry's motion fails. Cherry did not show good cause to reopen discovery as required by Rule 16. He has not shown that he acted diligently in attempting to depose Capozzoli before the close of discovery. Moreover, Cherry knew or should have known that Capozzoli was a person of interest as early as July 2019, and Cherry had Capozzoli's contact information by January 2021. By all accounts in the record, however, Cherry did not subpoena Capozzoli for a deposition during this time, or even make a robust attempt at contacting her. Judge Simon overrules Cherry's objections and affirms Judge Hallman's nondispositive Order, denying Cherry's motion to extend discovery or, in the alternative, to strike Capozzoli's declaration. Cherry timely filed an objection to the F&R, raising several allegations of error. Cherry first objects that the F&R impermissibly weighs evidence and resolves certain facts in favor of Serco, rather than construing the facts in the light most favorable to him, as is required at summary judgment. He also contends that the F&R omits facts material to his discrimination and retaliation claims. Judge Simon declines to adopt the F&R's background recitation of facts, because not all the facts are described in the light most favorable to Cherry. Nonetheless, after viewing the facts in the light most favorable to Cherry, the key facts show that there is no genuine dispute of material fact regarding pretext. Even viewed in the light most favorable to Cherry, the facts show that Serco terminated Cherry because he threatened his supervisor and Serco took a zero-tolerance disciplinary approach to Cherry's comment. The record presents no genuine dispute of material fact suggesting that Serco terminated Cherry for pretextual reasons. After reviewing the issues de novo and construing the facts in the light most favorable to the nonmoving party, Judge Simon agrees with the reasoning and analysis of the F&R and adopts the remainder of the F&R. The Plaintiff's remaining objections are unavailing. For the reasons stated, Judge Simon adopts in part the F&R. He declines to adopt the factual background section. He adopts the remainder of the F&R. Judge Simon grants the Defendant's Motion for Summary Judgment. He affirms Judge Hallman's Case Scheduling Order, denying the Plaintiff's Motion for Extension of Discovery & PTO Deadlines or alternatively Motion to Compel or Motion to Strike Declaration of Capozzoli for Summary Judgment. A full-text copy of the Court's Jan. 10, 2023 Order is available at https://tinyurl.com/mrxy74kn from Leagle.com. SOUTHERN CO: Astrom Seeks Conditional Status of Collective Action ----------------------------------------------------------------- In the class action lawsuit captioned as LAWRENCE ASTROM, Individually and For Others Similarly Situated, v. THE SOUTHERN COMPANY, Case No. 1:22-cv-03647-VMC (N.D. Ga.), the Plaintiff asks the Court to enter an order granting his motion to conditionally certify collective action and facilitate notice to potential class members. Pursuant to the Federal and Local Rules of Civil Procedure and 29 U.S.C. section 216(b), the Plaintiff, requests the entry of an Order permitting, under court supervision, notice to: "All power plant workers of Southern who were paid at less than time and a half for hours worked over 40 in a workweek in the last 3 years." The Plaintiff seeks to facilitate notice to the entire class of Putative Class Members who were/are not paid proper overtime compensation due to them, as required by the Fair Labor Standards Act ("FLSA"), because Southern Company's staffing companies instead paid them either straight time for overtime or an hourly rate which was less than time and a half for overtime hours that they worked each week. Southern Company is an American gas and electric utility holding company based in the southern United States. A copy of the Plaintiff's motion dated Jan. 13, 2022 is available from PacerMonitor.com at https://bit.ly/3XwqQkv at no extra charge.[CC] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (710) 877-8065 E-mail: rburch@brucknerburch.com - and - C. Ryan Morgan, Esq. Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 8581 Peters Road, Suite 4000 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: rmorgan@forthepeople.com afrisch@forthepeople.com TAKEOFF GROUP: Velazquez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Takeoff Group, LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Takeoff Group, LLC, Case No. 1:23-cv-00381 (S.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Takeoff Group -- https://takeoffdesigngroup.com/ -- is a design studio that creates, manufactures, and sells products to clients worldwide.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com TOMBOLO LLC: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Tombolo, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Tombolo, LLC, Case No. 1:23-cv-00276 (E.D.N.Y., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tombolo -- https://tombolocompany.com/ -- designs his and hers escapewear to transport to a sunnier time and place from cabana shirts, Hawaiian shirts and more.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com TOYOTA MOTOR: Bid for Summary Judgment in Weinreich Suit Granted ---------------------------------------------------------------- In the case, Gary Weinreich and Robert O'Hara, individually and on behalf of all others similarly situated, Plaintiffs v. Toyota Motor Sales, U.S.A., Inc., et al., Defendants, Civil Action No. 2:18-3294-RM (D.S.C.), Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Charleston Division, grants the Defendants' motion for summary judgment. The lawsuit is a putative class action. Weinreich alleges that in June 2005, he purchased a new, fourth generation Toyota 4Runner Sport and, when he took the car to be serviced at the Toyota Service Center in Myrtle Beach in 2011 and 2013, mechanics noted severe rust in the undercarriage including the transmission, although no resulting structural or safety problems were indicated. In 2017, service at a Meineke shop indicated excessive frame corrosion and Weinreich learned that Toyota had a customer support program for corrosion issues. In 2018, Weinreich lost control of the car when the wheel vibrated and, after being towed to a garage, it was determined that the right front control arm had broken away from the frame due to corrosion and rust. On Oct. 31, 2019, the Court granted in part and denied in part the Defendants' motion to dismiss the complaint. It dismissed the Plaintiff's negligent misrepresentation, negligence, and strict liability claims as barred by the economic loss rule. It also dismissed the Plaintiff's claim for injunctive relief. Following Carlson v. Gen. Motors Corp., 883 F.2d 287, 292 (4th Cir. 1989), the Court ruled the Plaintiff's warranty claims could proceed past the pleadings to determine whether, as a factual matter, the Defendants knew, at the time of sale, that the defect existed and would not manifest until the warranty expired, and that Toyota was on notice based on issues with the frames of prior car models. Accordingly, the parties proceeded to discovery on the Plaintiff's warranty claims and the Magnuson-Moss Warranty Act ("MMWA"). On June 17, 2022, the Plaintiffs filed their Second Amended Complaint ("SAC"). On July 13, 2022, the Court granted the Defendants' motion to strike certain paragraphs of the SAC which violated prior Court orders. Accordingly, it struck paragraphs 1, 3, 5, 16, 18, 19, 26, 27, 80, 96, and 106. The Plaintiffs were permitted to retain, however, Robert O'Hara as an additional named Plaintiff. The Plaintiffs were not permitted, however, to add additional claims for relief. The Defendants now move for summary judgment. The Plaintiffs filed a response in opposition, and the Defendants filed a reply. Also before the Court are three motions to seal related to the Defendants' motion. The Defendants' motion is fully briefed. As a preliminary matter, in opposition, the Plaintiffs argue that the Court cannot entertain Defendants' motion until it holds a "Rule 302 hearing." Judge Gergel rejects the Plaintiffs' contention, finding that the Plaintiffs cite no case law for the proposition that Section 302 requires a hearing. Accordingly, he considers the Defendants' motion. Judge Gergel holds that the Plaintiffs cannot establish that the Defendants had notice of corrosion related issues pertaining to the fourth generation 4Runner at the time Plaintiffs purchased their vehicles. For this basis alone, the Plaintiffs cannot establish unconscionability, and Judge Gergel grants the Defendants summary judgment on the Plaintiffs' claims. Judge Gergel further holds that the Plaintiffs' warranty and MMWA claims fail as a matter of law, and the Defendants are entitled to summary judgment. He finds that the Plaintiffs have adduced no evidence of a failure to disclose material information, much less a major, inherent product defect. For the foregoing reasons, Judge Gergel grants the Defendants' motion for summary judgment and the parties' pending motions to seal (Dkt. Nos. 262, 267, 273). He directs the Clerk to enter judgment for the Defendants and close the action. A full-text copy of the Court's Jan. 11, 2023 Order & Opinion is available at https://tinyurl.com/47zj5ptf from Leagle.com. TRANSWORLD SYSTEMS: Bell Files FDCPA Suit in N.D. Georgia --------------------------------------------------------- A class action lawsuit has been filed against Transworld Systems Inc. The case is styled as Taishi Bell also known as: Taishi Hyatt, individually and on behalf of all others similarly situated v. Transworld Systems Inc., Case No. 1:23-cv-00210-SCJ-JCF (N.D. Ga., Jan. 16, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Transworld Systems Inc. (TSI) -- https://tsico.com/ -- provides receivables collection and management services.[BN] The Plaintiff is represented by: Misty Oaks Paxton, Esq. THE OAKS FIRM 3895 Brookgreen Pt. Decatur, GA 30034 Phone: (404) 500-7861 Email: attyoaks@yahoo.com UNITED OF OMAHA: Nieves Seeks to Certify Class of Policy Owners --------------------------------------------------------------- In the class action lawsuit captioned as MARILYN NIEVES, Individually, and on Behalf of the Class, v. UNITED OF OMAHA LIFE INSURANCE COMPANY, a Nebraska Corporation; and DOES 1 through 10, Inclusive, Case No. 3:21-cv-01415-H-KSC (S.D. Cal.), the Plaintiff asks the Court to enter an order certifying the case as a class action under Federal Rule of Civil Procedure 23. The class is defined as follows: "All vested owners and beneficiaries of life insurance policies issued or delivered by Defendant in California, and which, after January 1, 2013, were lapsed or terminated for nonpayment of premium without Defendant first providing all the protections required by Insurance Code Sections 10113.71 and 10113.72." The Plaintiff excludes from the Class all the class members in the prior certified case of Bentley v. United of Omaha. Specially, Plaintiff excludes the following: "All beneficiaries who made a claim, or would have been eligible to make a claim, for the payment of benefits on life insurance policies renewed, issued, or delivered by United of Omaha Life Insurance Company in 2013 in the state of California that lapsed or were terminated by Omaha for the nonpayment of premium after January 1, 2013 (and which were not affirmatively cancelled by the policyholder), and as to which policies one or more of the third-party notices described by Sections 10113.71 and 10113.72 of the California Insurance Code were not sent by Omaha prior to lapse or termination." The Plaintiff also asks the Court to appoint her as the Class Representative and appoint the law firms of Nicholas & Tomasevic, LLP and Winters & Associates as Class Counsel. The Plaintiff alleges that Defendant failed to comply with California Insurance Code sections 10113.71 and 10113.72. In this Motion, Plaintiff asserts that class certification is appropriate under 11 Federal Rule of Civil Procedure 23(a) because: (1) the Class that Plaintiff seeks to certify is so numerous that joinder of all members is impracticable; (2) there are questions and answers of law or fact common to class members; (3) the claims of the representative Plaintiff are typical of the claims of the Class she seeks to represent; and (4) the representative Plaintiff and her counsel will fairly and adequately protect the interests of the proposed Class. The Plaintiff also asserts that certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because Defendant has acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class members as a whole. The Plaintiff Marylin Nieves is an ideal class representative. In 2016, Plaintiff purchased a $30,000 whole life policy from United that insured the life of her son, who has autism. The Plaintiff is the owner and sole beneficiary of the Policy. United of Omaha offers a range of insurance products life, disability, critical illness, long term care, and medical supplement. A copy of the Plaintiff's motion to certify class dated Jan. 13, 2022 is available from PacerMonitor.com at http://bit.ly/3kjwB6Rat no extra charge.[CC] The Plaintiff is represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Jack B. Winters, Jr., Esq. Sarah Ball, Esq. WINTERS & ASSOCIATES 8489 La Mesa Boulevard La Mesa, CA 91942 Telephone: (619) 234-9000 Facsimile: (619) 750-0413 E-mail: jackbwinters@earthlink.net sball@einsurelaw.com UNITEDHEALTHCARE: Parties Must Confer Class Cert. Deadlines ----------------------------------------------------------- In the class action lawsuit captioned as Aventus Health, LLC, et al v. UnitedHealthcare, Inc., et al., Case No. 6:22-cv-02408 (M.D. Fla,), the Hon. Judge Paul G. Byron entered an order directing the parties to confer regarding deadlines pertinent to a motion for class certification and advise the Court of agreeable deadlines in their case management report. The deadlines should include a deadline for: (1) disclosure of expert reports - class action, plaintiff and defendant; (2) discovery - class action; (3) motion for class certification; (4) response to motion for class certification; and (5) reply to motion for class certification. The nature of suit states Other Statutes -- Other Statutory Actions. Aventus specializes in providing healthcare services. UnitedHealth is an American multinational managed healthcare and insurance company based in Minnetonka, Minnesota.[CC] VERVENT INC: One Class & Two Subclasses Certified in Turrey Suit ---------------------------------------------------------------- In the case, HEATHER TURREY, OLIVER FIATY, JORDAN HERNANDEZ, and JEFFREY SAZON, individually, and on behalf of all others similarly situated, Plaintiffs v. VERVENT, INC., fka FIRST ASSOCIATES LOAN SERVICING, LLC; ACTIVATE FINANCIAL, LLC; DAVID JOHNSON; and LAWRENCE CHIAVARO, Defendants, Case No. 20-CV-0697 DMS (AHG) (S.D. Cal.), Judge Dana M. Sabraw of the U.S. District Court for the Southern District of California grants in part and denies in part the Plaintiffs' motion to certify a consumer class action. The Plaintiffs bring the consumer class action as alleged victims of a racketeering student loan scheme against companies and persons that collected millions of dollars in loan payments from them. In their Second Amended Complaint, the Plaintiffs allege ITT Education Services, Inc., now bankrupt, and one the nation's largest and most notorious for-profit school chains, offered high-cost programs that left students with large debt and inferior credentials. The present case involves one aspect of ITT's alleged fraud: its creation and exploitation of a sham private student loan program called "PEAKS," an acronym for "Program for Education Access and Knowledge." The Plaintiffs allege Deutsche Bank Trust Co. Americas ("DBTCA") designed the PEAKS loan program and was complicit with ITT. The original complaint, filed on April 10, 2020, named DBTCA and Defendants Vervent, the loan servicer for the PEAKS loan program (formerly known as First Associates Loan Servicing or "FALS"); Activate Financial, LLC ("AFL"), an "in-house" collection agency owned by Vervent; and David Johnson (owner and CEO of Vervent and Activate Financial) and Lawrence Chiavaro (former owner and executive of Vervent). Thereafter, DBTCA was dismissed by the Plaintiffs. The Plaintiffs now seek class certification of five claims against the Defendants under (1) the Racketeer Influenced and Corrupt Organizations Act ("RICO"); (2) the Fair Debt Collection Practices Act ("FDCPA"); (3) California's Rosenthal Fair Debt Collection Practice Act ("RFDCPA"); (4) California's Unfair Competition Law ("UCL"); and (5) common law negligent misrepresentation. The original complaint included three PEAKS borrowers as proposed class representatives: Jody Aliff, Marie Smith, and Heather Turrey. The Defendants settled with Aliff and Smith, and both were voluntarily dismissed from the case. The Court granted leave to amend new named Plaintiffs. The Plaintiffs filed a first amended complaint adding Tara Chambers and Philip Fernandez. The Defendants filed a motion to dismiss the FAC on Dec. 3, 2021, but then withdrew the motion on Jan. 7, 2022, and instead filed a motion for summary judgment. They settled with Chambers and Fernandez, and both were voluntarily dismissed. This left Turrey as the sole Plaintiff to defend the summary judgment motion. The Court ultimately denied in part and deferred in part the Defendants' motion for summary judgment, and permitted Turrey to file a SAC, in which she added three new Plaintiffs: Jeffrey Sazon, Jordan Hernandez, and Oliver Fiaty. As with the original complaint, the Plaintiffs' SAC alleges the Defendants joined and facilitated the fraudulent loan scheme initiated by ITT and DBTCA. They allege Vervent collected approximately $80 million in PEAKS loan payments from borrowers from January 2012, when it took over from loan originator Access Group, Inc. until all PEAKS loan balances were cancelled in 2020, following investigations by the Securities and Exchange Commission ("SEC") and Consumer Financial Protection Bureau ("CFPB"). Vervent earned approximately $14 million in servicing and collection fees from the PEAKS portfolio during that time. By the time all PEAKS loan balances were canceled in 2020, more than 41,000 student loans (or 79% of the PEAKS loans) "had defaulted." ITT falsely represented PEAKS to shareholders and the U.S. Department of Education as a source of non-federal, outside funding for student tuition payments, when in fact, ITT controlled who got loans and serviced the loans, and ITT itself was the primary funder of the loan program. The Plaintiffs seek to certify a nationwide class consisting of: All individuals who, based on Defendants' records: (i) were PEAKS loan borrowers, and (ii) made a payment during the period April 10, 2016 until the present. The Plaintiffs also seek certification of two subclasses, a nationwide subclass under the FDCPA ("FDCPA subclass") and a California subclass under the RFDCPA ("RFDCPA subclass"), respectively, as follows: FDCPA subclass: All individuals to whom, on or after April 10, 2019, Activate Financial directed a written communication in an attempt to collect on a PEAKS loan, and who thereafter made a payment to Activate Financial. RFDCPA subclass: All individuals to whom Defendants, on or after April 10, 2019, sent a written communication to an address in California, attempting to collect a PEAKS loan payment, and who thereafter made a payment to Defendants. Judge Sabraw explains that Federal Rule of Civil Procedure 23(a) sets out four requirements for class certification -- numerosity, commonality, typicality, and adequacy of representation. A showing that these requirements are met, however, does not warrant class certification. A plaintiff also must show that one of the requirements of Rule 23(b) is met. In the case, the Plaintiffs assert they meet the requirements of Rule 23(b)(3), which allows class certification in a much wider set of circumstances but with greater procedural protection. They must prove, by a preponderance of the evidence, the elements of Rule 23(a) and Rule 23(b)(3) are satisfied. First, Judge Sabraw examines whether the Plaintiffs satisfy Rule 23(a) and its prerequisites for class certification. She finds that (i) the evidence presently before the Court indicates that the proposed Class and subclasses will include thousands of individuals; (ii) given evidence of Hernandez's payments as result of the Defendants' alleged conduct, his claims are typical of the UCL and negligent misrepresentation Class members' claims; (iii) the Plaintiffs are ready and able to pursue the interests of the Class and subclasses, and possess a "rudimentary understanding" of the claims and relief sought; and (iv) the proposed class counsel -- Blood Hurst & O'Reardon, LLP, Langer, Grogan & Diver, and the Law Office of Paul Arons -- are experienced and capable of handling this complex consumer class action. Next, Judge Sabraw determines whether class certification under Rule 23(b)(3) is proper. She finds that questions common to the class predominate over any individual inquiries for the RICO claim and can be answered on a class-wide basis. She further finds that questions common to the Debt Collection subclasses predominate over any individual inquiries and can be answered on a class-wide basis. Hence, the Plaintiffs have met their burden on these claims under Rule 23(b)(3), as to Vervent and AFL. Moreover, Judge Sabraw finds that the Plaintiffs have therefore shown that central issues regarding these claims are capable of class-wide resolution and have satisfied Rule 23(b)(3)'s predominance requirements. Finally, given the number of issues that can be addressed class-wide through common evidence, Judge Sabraw finds that the case is well-suited for class adjudication and raises no significant administrative or management issues. Therefore, she finds that a class action is superior to other methods of adjudicating these claims. For these reasons, Judge Sabraw grants in part and denies in part the Plaintiffs' motion for class certification. She certifies the following Class and subclasses under Federal Rule of Civil Procedure 23(a) and (b)(3): a. A nationwide Class consisting of all individuals who, based on Defendants' records: (i) were PEAKS loan borrowers, and (ii) made a payment during the period April 10, 2016 until the present. The Class includes the RICO claims against all Defendants, and the UCL and negligent misrepresentation claims against Defendants Vervent and Activate Financial. b. A nationwide FDCPA subclass consisting of all individuals to whom on or after April 10, 2019, Activate Financial sent a written communication in an attempt to collect on a PEAKS loan, and who thereafter made a payment to Activate Financial. The FDCPA subclass includes claims against Defendants Vervent and Activate Financial. c. A California RFDCPA subclass consisting of all individuals to whom on or after April 10, 2019, Defendants sent a written communication in an attempt to collect on a PEAKS loan to an address in California, and who thereafter made a payment to Defendants. The RFDCPA subclass includes claims against Defendants Vervent and Activate Financial. Turrey, Hernandez, Fiaty, and Sazon are appointed as the class representatives for the Class RICO claim. Hernandez and Fiaty are appointed as the class representatives for the FDCPA subclass. Hernandez, Fiaty, and Sazon are appointed as the class representatives for the RFDCPA subclass. Hernandez is appointed as the class representative for the Class UCL and negligent misrepresentation claims. The law firms of Blood Hurst & O'Reardon, LLP, Langer, Grogan & Diver, and Law Office of Paul Arons are appointed as the class counsel, pursuant to Rule 23(g). A full-text copy of the Court's Jan. 11, 2023 Order is available at https://tinyurl.com/4fh4cudk 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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