/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230203.mbx C L A S S A C T I O N R E P O R T E R Friday, February 3, 2023, Vol. 25, No. 26 Headlines 11-15 BROADWAY: Gutierrez Sues Over Wrongful Increase of Rent 206-16 HOLLIS AVE: Ramirez Sues Over Unpaid Overtime Wages ABRISA INDUSTRIAL: Dorantes Sues Over Failure to Pay Proper Wages ADASA LTD: Lopez Files ADA Suit in S.D. New York ADVANCE MAGAZINE: Dodd Appeals Amended Suit Dismissal to 2nd Cir. AIR PRODUCTS: C.D. California Denies Johnson's Bid to Remand Suit AMERICAN FINANCIAL: Ramsey Sues Over Failure to Pay Overtime Wages APPLE INC: Kelly Sues Over Deceptive Use of Personal Data ARBOR LODGINGS: Thurber Files FCRA Suit in D. Minnesota AVANTUS LLC: Appeals Class Cert. Order in Martinez Suit to 2nd Cir. BAJO INC: Toro Files ADA Suit in S.D. New York BED BATH & BEYOND: Jones Sues Over Unlawful Wiretapping BIOSTEEL SPORTS: Bedson Sues Over Dangerous Synthetic Chemicals BJ'S RESTAURANT: Appeals Ruling in Flores FLSA Suit to 5th Cir. BJC HEALTH: Appeals Remand Order in Doe Suit to 8th Cir. BLANK SHIRTS INC: Toro Files ADA Suit in S.D. New York BLOOMINGDALES.COM LLC: Wiretaps Website Visitors, Daghaly Suit Says BRANDON BLACKWOOD: Slade Files ADA Suit in S.D. New York CARDINAL HEALTH: Sixth Circuit Affirms Dismissal of Bare Class Suit CENTER FOR EXCELLENCE: Judge Recommends Arbitration in Romero Suit CHC PAYROLL: Colon Sues Over Health Care Providers' Unpaid OT CIRCLE K STORES: Loses Bid for Judgment on Pleadings in Moody Suit COLGATE-PALMOLIVE: Esquibel Sues Over Dangerous Synthetic Chemicals COLUMBIA OMNI STUDIO: Hwang Files ADA Suit in E.D. New York CONSUMER CONSULTING: $2.2K in Attys.' Fees Awarded in Taylor Suit DARE COUNTY, NC: Fourth Circuit Affirms Dismissal of Blackburn Suit DEFALCO CONSTRUCTION: Class Cert. Ruling in Matute Suit Appealed DELOITTE LLP: S.D. New York Grants Bid to Dismiss Singh ERISA Suit DIRECT ENERGY: 2nd Circuit Affirms Summary Judgment in Forte Suit EVERLASTING INTERNATIONAL: Black Sues Over Unlawful Labor Practices FARMINGTON HILLS, MI: Summary Disposition in Greenfield Suit Upheld FATE THERAPEUTICS: Faves Shareholder Class Action Investigation FCA US LLC: Kim Sues Over Unlawful Sold Vehicles FEDERATION INTERNATIONALE: Shields Appeals Orders in Antitrust Suit FITNESS INTERNATIONAL: Bartuccio Balks at Unsolicited Text Messages FLAGSTAR BANCORP: Safai Suit Removed to C.D. California GIANNELLA'S MODERN: Alarcon Sues to Recover Unpaid Overtime Wages GLOBAL CUSTOM: Rudham Files Suit in S.D. California GO FLORIDA: Price Sues Over Failure to Pay Overtime Compensation HEARST COMMUNICATIONS: Anderson Appeals Case Dismissal to 2nd Cir. INESS COUTURE INC: Lopez Files ADA Suit in S.D. New York JELD-WEN INC: Court Refuses to Remand Faulk Suit to State Court LE SPORTSAC INC: Class Settlement in Murphy Suit Wins Prelim. Nod MAVIS TIRE: Faces Conley Suit Over Store Managers' Unpaid Wages MD CBD 180: Marantz's Bid to Renew Opposition to Dismissal Granted MEDICARE DIRECT: Misclassifies Insurance Sales Agents, Castro Says METROPOLITAN GENERAL: Bid to Dismiss MSP's 2nd Amended Suit Granted NEW YORK CITY: Bid for Injunctive Relief in Santiago Suit Denied NEW YORK CITY: S.D. New York Denies Allen's Bid for Reconsideration PACIFICORP: Or. App. Adheres to Class Certification in James Suit PRUDENT FIDUCIARY: Bid to Compel Arbitration in Burnett Suit Denied ROBINHOOD MARKETS: Faces Class Action Suit Over Trading Model ROBLOX CORP: Court Dismisses V.R.'s First Amended Class Complaint SOS LIMITED: Agrees $5-M Settlement in Securities Class Action T-MOBILE US: Corkins Sues Over Failure to Protect Personal Info T-MOBILE US: Fails to Protect Personal Info, Clark Suit Alleges UNITED STATES: Micu Appeals Judgment to Federal Circuit Court VAXART INC: Attorneys' Fees & Expense Awarded in Securities Suit VAXART INC: Class Settlement in Securities Suit Wins Final Approval VAXART INC: Final Judgment Entered in Securities Class Suit WAL-MART STORES: Fourth Cir. Affirms Dismissal of Henderson Suit WALMART INC: Ramos Wins Cross-Bid for Partial Judgment on Pleadings Asbestos Litigation ASBESTOS UPDATE: Suit Claims Zurich Purposely Stalling Libby Cases ********* 11-15 BROADWAY: Gutierrez Sues Over Wrongful Increase of Rent ------------------------------------------------------------- Mario Gutierrez and John Rosa on behalf of themselves and all others similarly situated v. 11-15 BROADWAY DELAWARE OWNER LLC and FAIRSTEAD MANAGEMENT LLC, Case No. 150756/2023 (N.Y. Sup. Ct., New York Cty., Jan. 25, 2023), is brought against the Defendants' violation of the Housing Stability and Tenant Protection Act ("HSTPA") by wrongfully increasing the Plaintiffs' preferential rent exponentially higher than that allowed by the Rent Guidelines Board ("RGB"). 11-15 Broadway Delaware Owner LLC is the owner-in-fee of the apartment building located at 11-15 Broadway (the "Building"), in Astoria, Queens. The Building is managed by Fairstead Management LLC. The Building participates in the 421 -a Program, which requires landlords to register their units with the Division of Housing and Community Renewal ("DHCR"), and that those apartments be treated as rent stabilized. The Defendants, and their predecessor-owners, have evaded the 421-a Program's requirements, and governing rent-stabilization laws, in two ways, both via the improper use of "concessions." First, the initial legal regulated rent to be registered for an apartment in a 421-a building must be the "monthly rent charged and paid by the tenant," and all subsequent rent increases are to be derived from that first payment. Here, based upon its initial rent listings on Streeteasy, (an online rental listing website), the Building's owners provided rent concessions to many of the Building's initial tenants, but those amounts were not reflected in the unit's initial registrations. In fact, those initial rent listings advertise the apartment's "net rent," (also known as a "net effective rent"), as the unit's rent. The net effective rent represents the rent that was actually "charged and paid," and that lower amount should have been registered as the initial rent with DHCR. By manipulating the way they assessed a unit's rent, Defendants' predecessors were able to register a unit with at initial rent higher than what was actually charged, and all subsequent increases, such as vacancy increases and Rent Guidelines Board increases, were based off that higher, impermissible figure. New York law holds successor entities liable for their predecessors' rent stabilization misconduct, and thus Defendants are liable for the predecessors' illegally registered first rents. Second, Defendants failed to abide by the rent regulations with respect to "preferential rents." For example, Plaintiff Gutierrez first occupied Apartment 4E on November 1, 2020 with a lease expiring on October 31, 2021. Plaintiff Gutierrez's 2020 lease provided that the monthly "preferential" rent for his unit was $2,625.00. Plaintiff Gutierrez's 2020 lease 14. also contained a concession rider which provided for a $5,250.00 concession for the last two months of his lease. The aforementioned "concession" should have been included in the calculation of Plaintiff Gutierrez's preferential rent, but was not. With respect to preferential rents, the HSTPA provides that a landlord can only increase a preferential rent by the percentage increase, as promulgated by the RGB. In October 2021, Plaintiff Gutierrez received another lease renewal. In violation of HSTPA, Defendants wrongfully increased Plaintiff Gutierrez's preferential rent from $2,187.501 to $2,664.37--a 22% increase, exponentially higher than that allowed by the RGB. The correct amount of Plaintiffs' legal regulated rent must be calculated pursuant to the rent laws. And the correct amount of Plaintiffs' legal regulated rent can only be determined after discovery. The aforementioned conduct evinces an attempt by Defendants, to circumvent the requirements of New York City's rent regulations, all at the expense of the Building's many tenants, says the complaint. The Plaintiffs reside in separate Apartments at the Building. 11-15 Broadway Delaware Owner LLC is a corporation which is the Building's fee owner.[BN] The Plaintiffs are represented by: Lucas A. Ferrara, Esq. Roger A. Sachar, Jr., Esq. NEWMAN FERRARA LLP 1250 Broadway, 27th Floor New York, NY 10001 Phone: (212) 619-5400 Email: lferrara@nfllp.com rsachar@nfllp.com 206-16 HOLLIS AVE: Ramirez Sues Over Unpaid Overtime Wages ---------------------------------------------------------- Fermin Ramirez, individually and on behalf of others similarly situated v. 206-16 HOLLIS AVE. FOOD CORP. (D/B/A COMPARE FOODS), JOSE ESPINAL AKA THEO, Case No. 1:23-cv-00601 (E.D.N.Y., Jan. 26, 2023), is brought for unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and for violations of the N.Y. Labor Law (the "NYLL"), and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor codified (herein the "Spread of Hours Wage Order"), including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiff worked for the Defendants in excess of 40 hours per week, without appropriate overtime, and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which he had worked over 10 hours a day. The Defendants' conduct extended beyond the Plaintiff to all other similarly situated employees. The Defendants maintained a policy and practice of requiring the Plaintiff and other employees to work in excess of 40 hours per week without providing the overtime compensation required by federal and state law and regulations, says the complaint. The Plaintiff was employed as a produce stocker at the supermarket. The Defendants own, operate, or control a supermarket, located in Queens Village, New York under the name "Compare Foods."[BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 ABRISA INDUSTRIAL: Dorantes Sues Over Failure to Pay Proper Wages ----------------------------------------------------------------- JOSE DORANTES, on behalf of himself and other aggrieved employees, Plaintiff v. ABRISA INDUSTRIAL GLASS, INC.; REAL TIME STAFFING SERVICES, LLC; EMPLOYBRIDGE, LLC; and DOES 1 to 100, inclusive, Defendants, Case No. 23STCV01532 (Cal. Super., Los Angeles Cty., Jan. 24, 2023) is a Private Attorneys General Act representative action brought by Plaintiff on behalf of himself and other current and former aggrieved employees of Defendants who worked as hourly non-exempt employees in California during the relevant time period, seeking civil penalties associated with the Defendants' violation of the California Labor Code. The Plaintiff filed this complaint over the Defendants' failure to pay wages for all hours worked at the employees' minimum wage rate or overtime rate, failure to provide all legally required and legally compliant meal and rest periods, failure to timely pay earned wages during employment, failure to provide complete and accurate wage statements, and failure to timely pay all unpaid wages following separation of employment. The Plaintiff was employed by Defendants in an hourly position from approximately March 2021 until February 2022. Abrisa Industrial Glass, Inc. designs, manufactures, and distributes precision optical coating solutions, and custom glass fabricated optical products.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Melissa A. Huether, Esq. Christine Gutierrez, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Boulevard, Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 E-mail: jlavi@lelawfirm.com vgranberry@lelawfirm.com mhuether@lelawfirm.com cgutierrez@lelawfirm.com ADASA LTD: Lopez Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Adasa Ltd, Inc. The case is styled as Iliana Lopez, on behalf of herself and all others similarly situated v. Adasa Ltd, Inc., Case No. 1:23-cv-00653 (S.D.N.Y., Jan. 25, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Adasa Ltd, Inc. -- https://adasa.com/ -- offers the latest women's formal dresses & gowns.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com ADVANCE MAGAZINE: Dodd Appeals Amended Suit Dismissal to 2nd Cir. ----------------------------------------------------------------- LINDA M. DODD, et al. are taking an appeal from a court order dismissing their lawsuit entitled Linda M. Dodd, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. Advance Magazine Publishers, Inc., doing business as Conde Nast, Defendant, Case No. 1:21-cv-08899, in the U.S. District Court for the Southern District of New York. The Plaintiffs commenced the putative class action against Defendant Advance Magazine Publishers Inc., d/b/a/ Conde Nast for alleged violations of the right of publicity statutes of seven states and Puerto Rico that make it unlawful to use the identity of a person for commercial purposes, such as advertising, marketing, and promotion, without their consent. According to the Complaint, Conde Nast packages information about its subscribers into what the Plaintiffs call "Data Brokerage Products," or subscriber lists that include subscriber names, home addresses, and magazine subscription preferences, and then sells that information to third parties. The third parties include, according to the Plaintiffs, "data miners, data aggregators, data appenders, data cooperatives, list rental recipients, list exchange recipients, and/or list brokers." The Plaintiff in this matter subsequently filed the First Amended Complaint, joining additional named plaintiffs and adding causes of action under seven additional right of publicity statues: Alabama, Ala. Code Section 6-5-770, et seq.; California, Cal. Civ. Code Section 3344; Nevada, Nev. Rev. Stat. Section 597.770, et seq.; Ohio, Ohio Rev. Code Ann. Section 2741.01, et seq.; South Dakota, S.D. Codified Laws Section 21-64-1, et seq.; Washington, Wash. Rev. Code Section 63.60.010, et seq.; and Puerto Rico, P.R. Laws Ann. tit. 32, Section 3151, et seq. On April 29, 2022, the Defendant moved to dismiss the First Amended Complaint, which the Court granted through an Order entered by Judge Ronnie Abrams on Dec. 19, 2022. The Clerk of Court was directed to close the case. The appellate case is captioned Dodd v. Advance Magazine Publishers, Inc. d/b/a Conde Nast, Case No. 23-0092, in the United States Court of Appeals for the Second Circuit, filed on January 19, 2023. [BN] Plaintiffs-Appellants LINDA M. DODD, et al., individually and on behalf of all others similarly situated, are represented by: Philip Lawrence Fraietta, Esq. BURSOR & FISHER, P.A. 888 7th Avenue New York, NY 10019 Telephone: (646) 837-7150 Defendant-Appellee Advance Magazine Publishers, Inc., DBA Conde Nast is represented by: Sandra Hauser, Esq. DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 768-6700 - and - Kristen Rodriguez, Esq. DENTONS US LLP 233 South Wacker Drive Chicago, IL 60606 Telephone: (312) 876-6133 AIR PRODUCTS: C.D. California Denies Johnson's Bid to Remand Suit ----------------------------------------------------------------- Judge Josephine L. Staton of the U.S. District Court for the Central District of California denies the Plaintiff's motion to remand in the lawsuit entitled Trevor Johnson v. Air Products and Chemicals, Inc., et al., Case No. 2:22-cv-07327-JLS-PD (C.D. Cal.). Air Products employed Johnson as an hourly-paid, non-exempt employee from approximately May 2016 until March 10, 2022, in Los Angeles County, California. Johnson alleges that Air Products and the fictitiously-named Doe Defendants 1-100 engaged in illegal wage practices. On Aug. 11, 2022, Johnson filed a class action complaint in the Superior Court of the State of California for the County of Los Angeles, asserting claims for: (1) Violation of Cal. Lab. Code Sections 1194 and 1197 (Unpaid Minimum Wages); (2) Violation of Cal. Lab. Code Sections 510, 1194 (Failure to Pay Overtime); (3) Violation of Cal. Lab. Code Sections 226.7 and 512 (Failure to Authorize or Permit Meal Periods); (4) Violation of Cal. Lab. Code Section 226.7 (Failure to Authorize or Permit Rest Periods); (5) Violation of Cal. Lab. Code Section 204 (Failure to Timely Pay Earned Wages During Employment); (6) Violation of Cal. Lab. Code Section 226 (Failure to Provide Complete and Accurate Wage Statements); (7) Violation of Cal. Lab. Code Sections 201, 202, and 203 (Failure to Pay Wages Timely Upon Separation of Employment); and (8) Violation of Cal. Bus. & Prof. Code Section 17200, et seq. (Unfair Business Practices). Johnson also requests attorneys' fees, where applicable. Air Products removed the action to this Court on Oct. 7, 2022, asserting that subject matter jurisdiction was appropriate under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). Johnson now moves to remand this action to Los Angeles County Superior Court, arguing that this Court does not have subject matter jurisdiction because the amount in controversy is insufficient under CAFA. Judge Staton notes that the Complaint seeks no specific amount in damages and the amount in controversy is not apparent by looking at the Complaint's four corners; therefore, Air Products must prove by a preponderance of the evidence that the damages claimed exceed $5 million. In its Notice of Removal, Air Products argues that the amount-in-controversy is met on the basis of Johnson's claims for failure to authorize or permit meal periods, his claim for failure to authorize or permit rest periods, his claim for failure to pay wages when due, and his request for attorneys' fees. Johnson argues that the 100% violation rate Air Products applies is "unreasonable and unsupported." Based on the Complaint's allegation that Johnson and similarly-situated employees were required to always remain with their trucks during meal and rest periods, Air Products assumed a 100% violation rate for class members, who were employed as drivers during the relevant period. By multiplying the number of shifts during the class period where drivers should have been given a meal or rest period by one hour of pay at the average wage of drivers during the period, Air Products argues that Johnson's meal period claim puts $2,721,430.864 in controversy, and his rest period claim puts $2,948,752.285 in controversy. Together, these violations alone put $5,670,183.14 in controversy, exceeding the $5 million jurisdictional requirement, Air Products argues. Mr. Johnson argues that he has alleged a "pattern and practice" violation, and that assuming a 100% violation rate based on such allegations is unreasonable. While Johnson does allege in his Complaint that Air Products "employed policies, practices, and/or procedures" resulting in failure to provide meal and rest periods, he also alleges that he and similarly-situated employees always had to remain with their trucks during such periods. This allegation supports a 100% violation rate, Judge Staton holds. Indeed, it is difficult to interpret it otherwise. Because Air Products' assumption of a 100% violation rate as to these two claims is based directly on the allegations of the Complaint, Judge Staton finds that it is reasonable, and Air Products has adequately shown that Johnson's claims put at least $5,670,183.14 in controversy. As the $5 million threshold has been met by the meal and rest period violation claims alone, the Court will not examine the amount put in controversy by Johnson's six other claims and request for attorneys' fees. For these reasons, Judge Staton holds the jurisdictional threshold is met, and Johnson's Motion is denied. A full-text copy of the Court's Order dated Jan. 12, 2023, is available at https://tinyurl.com/4ktrxn2y from Leagle.com. AMERICAN FINANCIAL: Ramsey Sues Over Failure to Pay Overtime Wages ------------------------------------------------------------------ David Ramsey, individually and on behalf of others similarly situated v. AMERICAN FINANCIAL RESOURCES, INC., Case No. 8:23-cv-00177-WFJ-TGW (M.D. Fla., Jan. 25, 2023), is brought pursuant to the Fair Labor Standards Act of 1938 as a result of the Defendant's failure to pay overtime wages. The Plaintiff regularly worked hours over 40 in a work week, however, the Plaintiff was not compensated at the rate of one and a half times his regular rate of pay for hours worked over 40 in the work week. The Defendant has a policy or pattern/practice of improperly calculating the lawful overtime rate of the Plaintiff and others similarly situated. All records necessary to calculate the amount of overtime monies due are in the possession of the Defendant, says the complaint. The Plaintiff began his employment in December 2021 as a Principal Loan Originator. The Defendant is a Florida corporation licensed and authorized and doing business in Hernando County, Florida. County.[BN] The Plaintiff is represented by: Miguel Bouzas, Esq. Gregory A. Owens, Esq. FLORIN GRAY BOUZAS OWENS, LLC 16524 Pointe Village Drive, Suite 100 Lutz, FL 33558 Phone (727) 220-4000 Facsimile (727) 483-7942 Email: miguel@fgbolaw.com greg@fgbolaw.com APPLE INC: Kelly Sues Over Deceptive Use of Personal Data --------------------------------------------------------- Elizabeth Kelly, on behalf of herself and all others similarly situated v. APPLE INC., Case No. 5:23-cv-00314-HB (E.D. Pa., Jan. 25, 2023), is brought against Apple on behalf of herself and others for Apple's deceptive use of personal data from iPhones as well as additional personal Apple devices including Ipads, and Apple personal computers that utilize the App Store, etc. (hereinafter Apple devices). The technical detail of this case sounds complex, but it can be distilled down to a simple premise: for all of Apple's promises regarding privacy and its consumers' choice to keep their personal data private, Apple's still tracks such information even when it leads consumers to believe they are not being tracked. This case is a simple case in which one of the largest technology companies in the world has inappropriately utilized its brand loyalty and consumer trust to unknowingly charge a premium for features for its products that it knew did not exist. Until recently, consumers had no idea Apple was tracking their personal data to profit even when they specifically asked Apple not to. After purchasing the phone, the Plaintiff turned off the "Share iPhone Analytics" option. Apple has nevertheless accessed her data while these features were turned off, says the complaint. The Plaintiff regularly accesses iPhone apps including, but not limited to, the App Store, Apple Music, Maps, and Weather, to name a few. Apple is one of the world's most popular and trusted brands.[BN] The Plaintiff is represented by: Charles E. Schaffer David C. Magagna Jr. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Phone: (215) 592-1500 Facsimile: (215) 592-4663 Email: cschaffer@lfsblaw.com dmagagna@lfsblaw.com - and - Jason P. Sultzer, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP, P.C. 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Phone: (845) 483-7100 Fax: (888) 749-7747 Email: sultzerj@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and - Jeffrey K. Brown, Esq. LEEDS BROWN LAW, P.C. 1 Old Country Rd., Suite 347 Carle Place, NY 11514 Phone: (516) 873-9550 Email: jbrown@leedsbrownlaw.com ARBOR LODGINGS: Thurber Files FCRA Suit in D. Minnesota ------------------------------------------------------- A class action lawsuit has been filed against Arbor Lodgings Partners LLC. The case is styled as Tony Thurber, on behalf of himself and all others similarly situated v. Arbor Lodgings Partners LLC, Case No. 0:23-cv-00195-JRT-TNL (D. Minn., Jan. 25, 2023). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Arbor Lodging -- https://arborlodging.com/ -- is a hotel investment and management company that manages Marriott, Hilton, Hyatt, and IHG properties across the United States.[BN] The Plaintiff is represented by: Ryan D. Peterson, Esq. PETERSON LEGAL, PLLC 6600 France Avenue, Suite 602 Edina, MN 55435 Phone: (612) 367-6568 Email: ryan@peterson.legal AVANTUS LLC: Appeals Class Cert. Order in Martinez Suit to 2nd Cir. ------------------------------------------------------------------- AVANTUS, LLC is taking an appeal from a court order granting the Plaintiff's motion for class certification in the lawsuit entitled Marvel Martinez, on behalf of himself and all others similarly situated, Plaintiff, v. Avantus, LLC, Defendant, Case No. 3:20-cv-01772, in the U.S. District Court for the District of Connecticut. The Plaintiff Martinez brings this putative class action against Avantus, LLC and Xactus, LLC 1, which is a successor in interest to certain Avantus assets, for alleged violations of section 1681e(b) of the Fair Credit Reporting Act ("FCRA"), section 1681 of title 15, et seq., of the U.S. Code. Martinez's lawsuit alleges that Avantus willfully failed to ensure maximum possible accuracy of its credit reports, leading to the Plaintiff being wrongly identified as an international drug trafficker who is prohibited from conducting business in the United States. On May 20, 2022, the Plaintiff filed a motion to certify class. The Plaintiff seeks for certification of a class defined as: "All persons residing in the United States and its Territories about whom the Defendants sold a consumer report to a third party that included any Office of Foreign Assets Control (OFAC) record using its proprietary UltraAMPS OFAC product, during the period beginning July 6, 2020, and continuing through 30 days before the date of notice to the class." On January 5, 2023, the Court granted the Plaintiff's motion to certify class through an Order entered by Judge Janet C. Hall. The Court held that, "The defendant contests only the manageability prong of the superiority requirement. However, their challenge is rooted in the same argument about individualized issues with determining whether absent class members have Article III standing that the court has already rebuffed." Additionally, the court can discern no reason why a putative class member would have an individual interest in controlling the litigation. Nor is the court aware of any similar suit that has already been initiated by an absent member of the class or any reason why Connecticut would be an undesirable forum for this case. Ultimately, proceeding as a class action "would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about undesirable results." The appellate case is captioned Martinez v. Avantus, LLC, Case No. 23-0081, in the United States Court of Appeals for the Second Circuit, filed on January 19, 2023. [BN] Plaintiff-Respondent Marvel Martinez, individually and on behalf of all others similarly situated, is represented by: James A. Francis, Esq. FRANCIS MAILMAN SOUMILAS P.C. 1600 Market Street Philadelphia, PA 19103 Telephone: (215) 735-8600 Defendant-Petitioner AVANTUS, LLC is represented by: Michael Leffel, Esq. FOLEY & LARDNER LLP 150 East Gilman Street, Suite 5000 Madison, WI 53703 Telephone: (608) 257-5035 BAJO INC: Toro Files ADA Suit in S.D. New York ---------------------------------------------- A class action lawsuit has been filed against Bajo, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Bajo, Inc., Case No. 1:23-cv-00640 (S.D.N.Y., Jan. 25, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bajo -- https://bajogroup.ca/ -- is an importer, wholesaler and distributor of full range of international food products, dry and frozen.[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 BED BATH & BEYOND: Jones Sues Over Unlawful Wiretapping ------------------------------------------------------- Ann Jones, individually and on behalf of all others similarly situated v. BED BATH & BEYOND INC., Case No. 4:23-cv-00082 (E.D. Mo., Jan. 25, 2023), is brought against Defendant for surreptitiously intercepting and wiretapping the electronic communications of visitors to its website, www.bedbathandbeyond.com in violation of the Missouri Wiretap Act, the Missouri Merchandising Practices Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, ("CFAA") and constitutes an invasion of the privacy rights of website visitors and a trespass to chattels. The Defendant procures third-party vendor, Quantum Metric, to utilize "session replay" spyware to intercept the Plaintiff's and the Class members' electronic computer-to computer data communications ("Electronic Communications") with the Defendant's website, including how they interacted with the website, their mouse movements and clicks, keystrokes, search terms, information inputted into website, and pages and content viewed while visiting the website. The Defendant intercepted, stored, and recorded electronic communications regarding the webpages visited by the Plaintiff and the Class Members, as well as everything the Plaintiff and the Class Members did on those pages, e.g., what they searched for, what they looked at, the information they inputted, and what they clicked on. The "session replay" spyware utilized by the Defendant is not a traditional website cookie, tag, web beacon, or analytics tool. It is a sophisticated computer spyware that allows the Defendant to contemporaneously intercept, capture, read, observe, re-route, forward, redirect, and receive incoming Electronic Communications to its website. The Plaintiff's and Class Members' Electronic Communications are then stored by the Defendant using an outside vendor's services and can later be viewed and utilized by the Defendant to create a session replay, which is essentially a video of a Class Member's entire visit to Defendant's website. The Defendant never alerted or asked the Plaintiff or the Class Members for permission to watch, intercept, and record their visits to the Defendant's website using session replay technology. The Plaintiff and the Class Members never consented to being watched or having their Electronic Communications on the Defendant's website intercepted by the Defendant or anyone acting on the Defendant's behalf, and they were never given the option to opt out of the Defendant's surreptitious watching and recording. The Plaintiff and the Class Members never provided Defendant, its employees, or agents with consent to watch and intercept and record their Electronic Communications using session replay technology, says the complaint. The Plaintiff has visited www.bedbathandbeyond.com while in Missouri. Bed Bath & Beyond Inc. operates the website www.bedbathandbeyond.com.[BN] The Plaintiff is represented by: Tiffany Marko Yiatras, Esq. CONSUMER PROTECTION LEGAL, LLC 308 Hutchinson Road Ellisville, MO 63011-2029 Phone: 314-541-0317 Email: tiffany@consumerprotectionlegal.com - and - Bryan L. Bleichner, Esq. Philip J. Krzeski, Esq. CHESTNUT CAMBRONNE PA 100 Washington Avenue S, Suite 1700 Minneapolis, MN 55401 Phone: (612) 339-7300 Fax: (612) 336-2940 Email: bbleichner@chestnutcambronne.com pkrzeski@chestnutcambronne.com - and - Kate M. Baxter-Kauf, Esq. Karen Hanson Riebel, Esq. Maureen Kane Berg, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Facsimile: (612) 339-0981 Email: kmbaxter-kauf@locklaw.com khriebel@locklaw.com mkberg@locklaw.com BIOSTEEL SPORTS: Bedson Sues Over Dangerous Synthetic Chemicals --------------------------------------------------------------- Laura Bedson, individually and on behalf of all others similarly situated v. BIOSTEEL SPORTS NUTRITION INC., Case No. 1:23-cv-00620 (E.D.N.Y., Jan. 27, 2023), is brought on behalf of similarly situated consumers ("Class Members") who purchased for personal, family, or household use, Defendant's BioSteel Blue Raspberry flavored Sports Drink (the "Product"), which is marketed as the "healthiest and most trusted sports hydration product on the planet," and is prominently labeled as "Zero Sugar" and "Eco Friendly" when, in fact, the Plaintiff's testing has revealed that the Product contains per- and polyfluoralkyl substances ("PFAS"), a category of synthetic chemicals that are, by definition, not healthy for consumers or the environment. PFAS are a group of synthetic, man-made, chemicals known to be harmful to both humans and the environment. Because PFAS persist and accumulate over time, they are harmful even at very low levels. Indeed, "PFAS have been shown to have a number of toxicological effects in laboratory studies and have been associated with thyroid disorders, immunotoxicity effects, and various cancers in epidemiology studies. The Defendant formulates, manufactures, markets, and sells the Product, which they uniformly represent as being made from "clean, quality ingredients," "designed with sustainability in mind," and "good for consumers and the environment." The Defendant's marketing of the product as a healthy sports drink extends to the Products' packaging, where it cannot be missed by consumers. Accordingly, reasonable consumers reasonably believe that the Product is a safe and healthy sports drink. The Defendant clearly knows the importance of marketing and labeling, including the value of the label representations they carefully choose for placement on the Product. Even beyond its packaging, the Defendant has engaged in extensive marketing efforts to inform consumers about the health benefits of drinking the Product, including through high profile endorsement deals with well-known professional athletes and partnerships with professional sports organizations such as the National Hockey League. The Defendant's uniform representations that the Product is a "clean" sports drink with significant health benefits are purposefully designed to drive sales and increase profits, including by targeting health-conscious consumers who reasonably believe that the Product is free from chemical ingredients which are known to be harmful to human health. However, despite Defendant's consistent and pervasive marketing representations to consumers that their Product is a healthy sports drink, Plaintiff's independent testing has determined that the Product actually contains PFAS--a category of man-made chemicals with a toxic, persistent, and bioaccumulative nature which are associated with numerous health and environmental concerns. The presence of PFAS is entirely inconsistent with Defendant's uniform representations that the Product is clean, eco-friendly, and good for both consumers and the environment. As a result of Defendant's misconduct, Plaintiff and putative Class Members have suffered injury in fact, including economic damages, says the complaint. The Plaintiff purchased and consumed Defendant's Product that contained PFAS. The Defendant manufactures and sells a variety of sports drinks, sports hydration mixes, specialty nutrition products, and protein products under the BioSteel brand name.[BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Daniel Markowitz, Esq THE SULTZER LAW GROUP 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Phone: (202) 470-3520 Fax: (888) 749-7747 Email: sultzerj@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and - Nick Suciu III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Road, Suite 115 Bloomfield Hills, MI 48301 Phone: (313) 303-3472 Email: nsuciu@milberg.com - and - Gary Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 221 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Email: gklinger@milberg.com - and - Erin Ruben, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: 919-600-5000 Email: eruben@milberg.com BJ'S RESTAURANT: Appeals Ruling in Flores FLSA Suit to 5th Cir. --------------------------------------------------------------- BJ'S RESTAURANT OPERATIONS COMPANY is taking an appeal from a court order adopting report and recommendations in the lawsuit entitled Daniel Flores, individually and on behalf of all others similarly situated, Plaintiff, v. BJ's Restaurant Operations Company, Defendant, Case No. 1:21-cv-01185, in the U.S. District Court for the Western District of Texas. The Plaintiff filed this lawsuit against the Defendant for its failure to pay appropriate minimum wages in violation of the Fair Labor Standards Act. On Dec. 15, 2022, the District Court adopted a magistrate judge's report and recommendations related to the Defendant's motion to compel individual arbitration. The appellate case is captioned Flores v. BJ's Restaurant Operations, Case No. 23-50038, in the United States Court of Appeals for the Fifth Circuit, filed on January 19, 2023. [BN] Plaintiff-Appellee DANIEL FLORES, individually and on behalf of all others similarly situated, is represented by: Don J. Foty, Esq. HODGES & FOTY, L.L.P. 2 Greenway Plaza Houston, TX 77046 Telephone: (713) 523-0001 - and - Anthony J. Lazzaro, Esq. 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Defendant-Appellant BJ's Restaurant Operations Company is represented by: David B. Jordan, Esq. LITTLER MENDELSON, P.C. 1301 McKinney Street Houston, TX 77010 Telephone: (713) 652-4784 BJC HEALTH: Appeals Remand Order in Doe Suit to 8th Cir. -------------------------------------------------------- BJC HEALTH SYSTEM, doing business as BJC HEALTHCARE, is taking an appeal from a court order granting the Plaintiff's motion to remand his lawsuit entitled John Doe, II, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. BJC Health System, Defendant, Case No. 4:22-cv-00919-RWS, 22nd Judicial Circuit Court of the City of St. Louis. The nature of suit is stated other P.I. On Sept. 1, 2022, the Defendant filed a notice to remove the case, which was originally assigned Case No. 2222-CC09151, from the 22nd Judicial Circuit Court of the City of St. Louis, to the U.S. District Court for the Eastern District of Missouri. The Court granted the motion and assigned Case No. 4:22-cv-00919-RWS to the proceeding. On Oct. 3, 2022, the Plaintiffs filed a motion to remand the case, which the Court granted through an Order entered by Judge Rodney W. Sippel on Jan. 10, 2023. The appellate case is captioned John Doe, I, et al. v. BJC Health System, Case No. 23-1107, in the United States Court of Appeals for the Eighth Circuit, filed on January 20, 2023. [BN] Plaintiffs-Appellees JOHN DOE, I, et al., on behalf of themselves and all others similarly situated, are represented by: Jason Owen Barnes, Esq. SIMMONS & HANLY 231 S. Bemiston Avenue, Suite 525 Saint Louis, MO 63105 Telephone: (573) 418-0719 - and - Amy Collignon Gunn, Esq. Elizabeth S. Lenivy, Esq. SIMON LAW FIRM 800 Market Street, Suite 1700 Saint Louis, MO 63101 Telephone: (314) 241-2929 Defendant-Appellant BJC HEALTH SYSTEM, doing business as BJC Healthcare, is represented by: David Alan Carney, Esq. BAKER & HOSTETLER Key Tower, Suite 2000 127 Public Square Cleveland, OH 44114 - and - John D. Comerford, Esq. Adam Joseph Simon, Esq. DOWD & BENNETT 7676 Forsyth Boulevard, Suite 1900 Saint Louis, MO 63105 Telephone: (314) 889-7300 - and - Paul G. Karlsgodt, Esq. BAKER & HOSTETLER 1801 California Street, Suite 4400 Denver, CO 80202 Telephone: (303) 764-4013 BLANK SHIRTS INC: Toro Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Blank Shirts, Inc. The case is styled as Andrew Toro, on behalf of himself and all others similarly situated v. Blank Shirts, Inc., Case No. 1:23-cv-00641 (S.D.N.Y., Jan. 25, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. BlankShirts -- https://www.blankshirts.com/ -- offers low prices on blank wholesale t-shirts, polo shirts, hoodies and more, from manufacturers like Next Level, Gildan, and Bella+Canvas.[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 BLOOMINGDALES.COM LLC: Wiretaps Website Visitors, Daghaly Suit Says ------------------------------------------------------------------- AMANDA DAGHALY, individually and on behalf of all others similarly situated, Plaintiff v. BLOOMINGDALES.COM, LLC, and any related entities, Defendants, Case No. 3:23-cv-00129-L-WVG (S.D. Cal., Jan. 24, 2023) is a class action brought against Defendants for secretly recording the electronic communications of visitors to their website, www.bloomingdales.com, including their scrolling, clicking, and keystrokes, in violation of the Wiretap Act, the California Invasion of Privacy Act, the California Business & Professions Code and an invasion of the privacy rights of website visitors. According to the complaint, the Defendants use recent developments in session replay technology to surreptitiously record visitors to its website using JavaScript software code that continuously wiretap Internet users' keystrokes, mouse movements, clicks, webpage locator data, and/or other electronic communications. These scripts are placed on a website or app and are responsible for recording the user's actions. When a user visits www.bloomingdales.com, the Session Replay Code begins recording their interactions for storage in video form on a server for playback, including by third parties such as FullStory. FullStory developed some of the session recording technology that Bloomingdale is using, says the suit. According to the complaint, after intercepting and capturing the website communications, Defendants use the Session Replay Code to playback website visitors' entire visit to www.bloomingdales.com. Because session replay records every action a user takes on a website, it can also record sensitive information such as login credentials and personal information entered into forms. The Defendants' use of Session Replay Code is therefore an unusual and highly offensive form of monitoring and wiretapping sensitive personal data, including data not intended to be shared with third parties such as FullStory, the suit alleges. BLOOMINGDALES.COM, LLC is an American luxury department store chain.[BN] The Plaintiff is represented by: Brett R. Cohen, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 Facsimile: (516) 747-5024 E-mail: bcohen@leedsbrownlaw.com BRANDON BLACKWOOD: Slade Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Brandon Blackwood LLC. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Brandon Blackwood LLC, Case No. 1:23-cv-00682 (S.D.N.Y., Jan. 26, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Brandon Blackwood -- https://brandonblackwood.com/ -- crafts contemporary designer bags and accessories.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com CARDINAL HEALTH: Sixth Circuit Affirms Dismissal of Bare Class Suit ------------------------------------------------------------------- In the case, AARON MILES BARE, on behalf of himself and all others similarly situated, Plaintiff-Appellant v. CARDINAL HEALTH, INC., Defendant-Appellee, Case No. 22-5557 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the judgment of the district court: a. granting Cardinal's motion to dismiss; b. denying Bare's motion to amend; and c. rejecting Bare's request for attorney's fees under Title VII. In response to the COVID-19 pandemic, Cardinal Health mandated that all employees be "FULLY vaccinated" against the virus. The company's policy was problematic for employee Bare due to his "abortion-related religious beliefs," which prevent him from using products derived from or connected in any way with abortion. Bare alleges that those products include the available COVID-19 vaccines, which, he says, were derived from or produced by utilizing "aborted fetal cell lines." In some respects, Cardinal's vaccination policy anticipated issues of this nature. The policy acknowledges that "a small number of employees" would be unable to receive the vaccine for religious reasons. So the company developed a process to address requests for religious exemptions. Bare engaged in the process but ultimately was denied an exemption from Cardinal's vaccine mandate. Having failed to receive an exemption, Bare filed this suit. Bare's complaint alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2(a), and the Emergency Use Authorization Act, 21 U.S.C. Section 360bbb-3. To Bare's mind, Cardinal's process for seeking a religious exemption from the company's vaccine mandate was a "sham," one that, in practice, did not allow for exemptions. That was so, Bare alleged, due to Cardinal's animus towards, and discrimination against, its employees because of their religious beliefs. Not long after Bare filed suit, Cardinal granted him a six-month religious exemption from its vaccine mandate. But Bare's case, he says, was the exception to the rule -- most other Cardinal employees, Bare alleges, had their requests for religious accommodations denied. To aid his non-exempted colleagues, he filed an amended complaint, seeking to turn his case into a class action. He alleged that the putative class members would likely be fired once the mandate went into effect and that he would be fired after his accommodation expired. To prevent Cardinal from moving ahead with these terminations, Bare sought injunctive and declaratory relief for himself as well as the purported class. Before Bare moved to certify the class, Cardinal moved to dismiss the amended complaint on two grounds: one, because Bare admitted that he had not been injured, and two, because he failed to state a claim for which relief could be granted. In response, Bare sought to amend his complaint yet again. This time, he proposed adding a second named plaintiff, Christopher Davis, who, like Bare, had also refused vaccination. The district court granted Cardinal's motion to dismiss and denied Bare's motion to amend. Dismissal was appropriate under Federal Rule of Civil Procedure 12(b)(1), the district court explained, because Bare lacked standing to pursue his individual claims, leaving the court without subject matter jurisdiction over those claims. As to Bare's motion to amend, see Fed. R. Civ. P. 15, the district court concluded that any amendment would be futile because Davis, like Bare, lacked standing to bring his claims. Bare later asked the court to alter its judgment in accordance with Federal Rule of Civil Procedure 59(e). When his motion was denied, Bare filed a timely appeal. Before the Sixth Circuit, Bare challenges the district court's decisions dismissing his complaint and denying him leave to amend, as well as its decision, made in its ruling denying Bare's motion to alter the judgment, rejecting his request for attorney's fees under Title VII. The Sixth Circuit begins with the threshold question of the district court's subject matter jurisdiction. It holds that the district court was correct to dismiss Bare's suit. Bare's allegations that the vaccine mandate has caused him and others mental and emotional anguish are too conclusory to establish a cognizable past injury. And by the time Bare filed his amended complaint, he had been granted an exemption to the vaccine mandate, staving off any imminent injury as well. Cardinal later assured the district court that it had no plans to deny renewal of Bare's religious accommodation unless the accommodation causes operational disruption. Any injury to Bare, in other words, was contingent on future events that may never come to pass, which is a much "too speculative" state of affairs "to satisfy the well-established requirement that threatened injury must be 'certainly impending.'" All told, the district court lacked jurisdiction to entertain Bare's amended complaint. Should future developments threaten Bare's employment, he may be able to invoke the district court's jurisdiction then. But the Sixth Circuit need not speculate on a factual setting that has not yet come to pass. The Sixth Circuit opines that the district court properly denied leave to amend. By and large, Bare's proposed second amended complaint was identical to his first, save for the addition of a second named plaintiff -- Davis. And like Bare, Davis has neither been fired nor vaccinated. According to the Sixth Circuit, Davis' case does present one factual wrinkle, but it is not one that changes the standing analysis. At the time Bare sought leave to file the second amended complaint and add Davis as a plaintiff, Davis was "choosing not to become vaccinated for personal reasons," rather than due to a faith-based objection (Davis was later granted an accommodation). Cardinal, meanwhile, had not decided that it would soon terminate Davis. At the time the motion to amend was filed, Cardinal had no plans to do so. Davis, then, also lacked a cognizable injury for purposes of standing. That leaves Davis in substantially the same place as Bare: he is only speculating that his job may be in jeopardy in the future. And in the absence of an imminent injury to Davis, adding him as a named plaintiff through the second amended complaint still would not clear the jurisdictional bar the Sixth Circuit's standing doctrine puts in place. That leaves Bare's request for attorney's fees, an issue the district court addressed when it denied Bare's Rule 59(e) motion. The Sixth Circuit holds that the district court was correct to deny Bare a fees award. It says the Supreme Court held that while a defendant's voluntary change in conduct may accomplish what the plaintiff sought to achieve by the lawsuit, that change lacks the necessary judicial imprimatur, citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Hum. Res., 532 U.S. 598, 605 (2001). As a result, one is not a "prevailing party" without a corresponding alteration in the legal relationship of the parties. The Sixth Circuit is not free to disregard Supreme Court precedent. Nor was the district court, which properly denied Bare's fees request. A full-text copy of the Court's Jan. 25, 2023 Opinion is available at https://tinyurl.com/yfzubbb9 from Leagle.com. CENTER FOR EXCELLENCE: Judge Recommends Arbitration in Romero Suit ------------------------------------------------------------------ In the lawsuit titled TYSON ROMERO, on behalf of himself and all others similarly situated, Plaintiff v. CENTER FOR EXCELLENCE IN HIGHER EDUCATION, INC., Defendant, Case No. 21-1124-RGA (D. Del.), Magistrate Judge Jennifer L. Hall of the U.S. District Court for the District of Delaware recommends that the Defendant's Motion to Dismiss or Stay and Compel Arbitration be granted and that the case be stayed pending arbitration. The Defendant is a Delaware corporation with headquarters in Salt Lake City, Utah. The Plaintiff worked for the Defendant at its headquarters for seven years. On Aug. 2, 2021, the Defendant terminated the Plaintiff and about 300 other employees from its Salt Lake City and Phoenix locations without notice. On the same day, the Plaintiff filed his complaint in this action. The Plaintiff's complaint is styled, Class Action Complaint for Violation of WARN Act, 29 U.S.C. Section 2101, et seq. In it, the Plaintiff purports to be bringing an action on behalf of himself and a class of similarly situated former employees for monetary relief under the WARN Act. The Plaintiff's complaint refers to Rule 23 of the Federal Rules of Civil Procedure and expressly requests certification of a class made up of employees that were terminated by the Defendant within 90 days of Aug. 2, 2021. The Defendant has not yet served a responsive pleading. On Jan. 6, 2022, the parties jointly requested a stay so that they could pursue mediation. The parties weren't able to resolve the case through mediation, and the Court lifted the stay on Aug. 2, 2022. On Aug. 17, 2022, the Defendant filed the pending motion, which seeks to stay or dismiss the case so the parties can pursue resolution of this dispute in arbitration. The Defendant submitted with its motion a copy of a two-page Mediation and Arbitration Agreement signed by the Plaintiff when he started working for the Defendant in 2014. That document is set forth as Exhibit A to D.I. 32, and is referred to as the Agreement. The Agreement outlines a three-step dispute resolution procedure that, by its terms, applies to any and all disputes, conflicts, problems, controversies, or claims of any kind without exception arising from or connected to employment with the Company. In the first step, the employee must take his complaint internally up the chain of command at the company. In the second step, the parties must attempt resolution of the dispute in mediation. The Defendant's motion concerns the Agreement's third step. The third step provides that any and all disputes, conflicts, problems, controversies, or claims of any kind arising from or connected to employment with the Company, will be submitted to binding arbitration under the substantive and procedural requirements of the Federal Arbitration Act, under the rules of the American Arbitration Association. Any dispute or claim will be brought solely in that party's individual capacity and not as a plaintiff or class member in any purported class action, representative proceeding, mass action, or consolidated action. The Defendant argues, and the Plaintiff does not dispute, that the Agreement is a valid arbitration agreement at least as to some disputes that may arise between the parties. The Defendant further points out, and the Plaintiff agreed during the argument, that to the extent that he has an individual WARN claim, such a claim falls within the scope of the Agreement. What's more, the Plaintiff acknowledged in his brief that the Agreement has an express class/representative action waiver and that class action waivers are generally enforceable, even for federal statutory claims. In other words, the Plaintiff recognizes that the plain terms of the Agreement prevent him from pursuing a class arbitration of his and similarly situated employees' individual WARN claims. In light of all that, the Defendant says this case should be stayed so that arbitration can be had in accordance with the terms of the Agreement. Judge Hall agrees. That outcome should have been simple to reach. Unfortunately, Judge Hall explains, untangling the Plaintiff's arguments against sending the case to arbitration wasn't so simple. The Plaintiff's main argument is that the arbitration agreement is unenforceable with respect to his WARN Act claim because it operates as a waiver of a substantive remedy. The Plaintiff says that notwithstanding the express reference to a class action and Rule 23 in his complaint he is not trying to bring a class action made up of individual employee claims under the WARN Act. According to the Plaintiff, what he is actually intending to bring is a representative action. He says that his right to bring a representative action is provided by 29 U.S.C. Section 2104(a)(5), which, as a reminder, says that a person seeking to enforce such liability--i.e., the liability to employees for backpay and benefits under paragraph (1) or liability to the local government under paragraph (3)--including a representative of employees or a unit of local government aggrieved under paragraph (1) or (3), may sue either for such person or for other persons similarly situated, or both, in federal court. Because everyone agrees that the Agreement expressly prohibits the Plaintiff from pursuing class/representative action claims in arbitration, the Plaintiff argues that it operates as a waiver of his substantive right to bring a representative claim and should not be enforced. Judge Hall rejects that argument, for many reasons. For one thing, as the Defendant points out, the parties' Agreement delegates all disputes over the enforceability of the Agreement to the arbitrator, Judge Hall opines. To be clear, while the Plaintiff has raised challenges to the enforceability of the class/representative action waiver in the Agreement, he has never specifically challenged the validity of the parties' agreement to delegate arbitrability to the arbitrator, nor has he persuasively explained why the Court should not enforce the parties' express agreement to arbitrate any disputes the parties have over the enforceability of the Agreement, which would seem to include their dispute over the enforceability of the class/representative action waiver. That alone is enough to grant the Defendant's motion and send the case to arbitration, Judge Hall points out, among other things. To conclude, Judge Hall agrees with the Defendant that the case is going to arbitration. If the Defendant is right that the parties agreed to arbitrate the enforceability of the class/representative action waiver, this case is going to arbitration. But even if the Plaintiff is right that the Court should assess the enforceability of the class/representative action waiver, this is going to arbitration because Judge Hall would reject the Plaintiff's argument that the waiver is unenforceable. Lastly, Judge Hall addresses the Plaintiff's argument that the Defendant waived his right to enforce the arbitration agreement altogether. According to the Supreme Court in its recent case Morgan v. Sundance, Inc., the waiver is the intentional relinquishment or abandonment of a known right. Judge Hall holds that this case is not an appropriate occasion to engage in the philosophical exercise of figuring out how much of Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 925 (3d Cir. 1992) survived Sundance because there is no basis on this record to conclude that the Defendant has acted inconsistent with its right to have the dispute resolved in arbitration as opposed to court. The Plaintiff's contention that the Defendant waived its right to arbitration through litigation conduct is meritless, Judge Hall holds. In the section of his brief dealing with a waiver, the Plaintiff says he is concerned about the Defendant's ability and intention to pay arbitration fees, and he requests discovery into the Defendant's finances and/or an order requiring the Defendant to post a bond with the Court. Judge Hall points out that the Plaintiff has cited no authority supporting either of those requests, and they should be denied. The parties contracted to have their disputes resolved in arbitration, and the Federal Arbitration Act requires the Court to stay the case and send the parties to arbitration. For the reasons set forth, Judge Hall recommends that the Defendants' motion be granted and that the case be stayed pending arbitration. This Report and Recommendation is filed pursuant to 28 U.S.C. Section 636(b)(1)(B), (C), Federal Rule of Civil Procedure 72(b)(1), and District of Delaware Local Rule 72.1. Any objections to the Report and Recommendation will be filed within fourteen days and limited to ten pages. Any response will be filed within fourteen days thereafter and limited to ten pages. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the district court. A full-text copy of the Court's Report and Recommendation dated Jan. 12, 2023, is available at https://tinyurl.com/yck59zbt from Leagle.com. CHC PAYROLL: Colon Sues Over Health Care Providers' Unpaid OT ------------------------------------------------------------- CARLOS COLON and CANDACE HARRIS, individually and on behalf of all others similarly situated, Plaintiffs v. CHC PAYROLL AGENT, INC., Defendant, Case No. 3:23-cv-00074 (M.D. Tenn., Jan. 24, 2023) seeks to recover from the Defendant unpaid overtime compensation, liquidated damages, and attorneys' fees and costs of Plaintiffs and similarly situated current and former hourly employees, pursuant to the provisions of the Fair Labor Standards Act, and unpaid straight time wages pursuant to Florida and Georgia common law. Plaintiff Colon was employed by CHC in Tallahassee, Florida as a registered nurse and later as a paramedic from approximately October of 2017 until January 2021. Plaintiff Harris was employed by CHC in Savannah, Georgia as a patient care technician from approximately June 2017 until March 2022. CHC Payroll Agent, Inc. is a subsidiary of HCA Healthcare, Inc. HCA owns and operates 182 hospitals and 2,300 care sites located in 20 states across the United States.[BN] The Plaintiffs are represented by: Melody Fowler-Green, Esq. YEZBAK LAW OFFICES 2021 Richard Jones Rd., Suite 310-A Nashville, TN 37215 Telephone: (615) 250-2000 Facsimile: (615) 250-2020 E-mail: mel@yezbaklaw.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. Carter T. Hastings, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com carter@a2xlaw.com CIRCLE K STORES: Loses Bid for Judgment on Pleadings in Moody Suit ------------------------------------------------------------------ In the case, WILLIE MOODY, JR., et al., Plaintiffs v. CIRCLE K STORES, INC., Defendant, Case No. 2:18-cv-435-CLM (N.D. Ala.), Judge Corey L. Maze of the U.S. District Court for the Northern District of Alabama, Southern Division: a. denies Circle K's Motion for Judgment on the Pleadings; and b. denies in part and denies as moot Circle K's motion to strike the class allegations. Four named Plaintiffs sue Circle K. They allege various violations of Title III of the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq. ("ADA"), and its implementing regulations. Generally, the Plaintiffs allege that Circle K discriminated against, and continues to discriminate against, customers with mobility disabilities. And they wish to bring the action individually, and on behalf of all others similarly situated. The Court has not yet ruled on class certification. Circle K has filed a partial motion for judgment on the pleadings under Rule 12(c), or in the alternative, a motion strike the class allegations in the Plaintiffs' Amended Complaint under Rule 23(d)(1)(D). Judge Maze examines Circle K's Motion for Judgment on the Pleadings. Circle K argues that the Plaintiffs' Amended Complaint should be dismissed for (1) lack of standing, and (2) failure to state a claim upon which injunctive relief can be granted. Judge Maze opines that the Plaintiffs have the ultimate burden of establishing standing. And at the class certification stage, they will need to establish that their own injuries are sufficiently similar to those of the purported class. But the Court will decide this issue at the class certification stage. Judge Maze declines to grant judgment on the pleadings for lack of standing. In addition, Judge Maze opines that the Plaintiffs have stated a plausible claim for relief. At this stage, he says the Court must construe the facts in the light most favorable to the Plaintiffs. And under that standard, he finds that the Plaintiffs have stated a plausible claim upon which relief can be granted. So he declines to grant judgment on the pleadings for failure to state a plausible claim. Judge Maze now turns to Circle K's Motion to Strike Plaintiffs' Class Allegations. Circle K asks the Court to strike the Plaintiffs' class allegations because (1) the Plaintiffs' proposed class definition is an improper fail-safe class, and (2) the Plaintiffs have not pleaded sufficient factual allegations to establish commonality. Judge Maze finds that the Plaintiffs changed their class definition after Circle K's motion, so Circle K's request is moot. He understands that, with the benefit of further discovery, the Plaintiffs have proposed a new class definition different from the definition Circle K objected to when filing this motion. Accordingly, Judge Maze denies as moot Circle K's request to strike the class allegations based on an impermissible fail-safe class. Circle K may object to the new definition in its brief opposing class certification. Lastly, Judge Maze rules on commonality at the class certification stage. Without the benefit of formal discovery, the Plaintiffs have pleaded facts that allege a pattern and practice of systematic discrimination. They have also alleged a common design plan, resulting in access barriers at Circle K locations across the country. So while he does not opine on whether the Plaintiffs have established commonality, Judge Maze does not find it clear from the face of the complaint that the Plaintiffs cannot satisfy Rule 23's commonality requirement. Accordingly, he declines to strike the Plaintiff's class allegations on this basis. For these reasons, Judge Maze denies Circle K's motion for judgment on the pleadings, and denies in part and denies as moot in part its motion to strike the class allegations. A full-text copy of the Court's Jan. 25, 2023 Memorandum Opinion is available at https://tinyurl.com/mwpta7rs from Leagle.com. COLGATE-PALMOLIVE: Esquibel Sues Over Dangerous Synthetic Chemicals ------------------------------------------------------------------- Abigail Esquibel, Tammy Searle, Jeremy Wahl, Aimen Halim and Nicholas Salerno, individually and on behalf of all others similarly situated v. COLGATE-PALMOLIVE CO., and TOM'S OF MAINE, INC., Case No. 1:23-cv-00742 (S.D.N.Y., Jan. 27, 2023), is brought on behalf of similarly situated consumers ("Class Members") who purchased for personal, family, or household use, Tom's Wicked Fresh! Mouthwash (the "Product"), which is prominently labeled as a "natural" mouth wash. In reality, Plaintiffs' testing has revealed that the Product contains per- and polyfluoralkyl substances ("PFAS"), a category of synthetic chemicals that are, by definition, not natural. PFAS are a group of synthetic, man-made, chemicals known to be harmful to both humans and the environment. Because PFAS persist and accumulate over time, they are harmful even at very low levels. Indeed, "PFAS have been shown to have a number of toxicological effects in laboratory studies and have been associated with thyroid , immunotoxicity effects, and various cancers in epidemiology studies. The Defendants formulate, manufacture, market, and sell the Product, which they uniformly represent as a "natural" mouth wash that is made by the "#1 Natural Mouthwash Brand". Defendants have engaged in tireless marketing efforts to convince consumers that its mouthwashes, including the Product at issue, are made with natural ingredients. The Defendants, as one of the leading manufacturers of natural hygiene products, know the importance of marketing and labeling, including the value of the label representations they carefully choose for placement on the Product, including the "natural" representation on the front of the Product label. The Defendants state their mission is to "make products that are good for you and good for the planet!" the Defendants' uniform marketing is intentionally designed to drive sales and increase profits by targeting health-conscious consumers who reasonably believe that the Product is natural and therefore free from synthetic or artificial ingredients which are known to be harmful to human health. However, despite the Defendants' consistent and pervasive marketing representations to consumers that their Product is a healthy, all natural mouthwash, the Plaintiffs' independent testing has determined that the Product actually contains PFAS—a category of man-made chemicals with a toxic, persistent, and bioaccumulative nature which are associated with numerous health hazards. The presence of PFAS is entirely inconsistent with Defendants' uniform representations that the Product only contains only "natural" ingredients. As a result of the Defendants' misconduct, Plaintiffs and putative Class Members have suffered injury in fact, including economic damages. Accordingly, Plaintiffs bring their claims against Defendants individually and on behalf of a Class of all others similarly situated for: violation of the Magnuson-Moss Warranty Act; violation of California's False Advertising Law, Business & Professions Code; violation of California's Unfair Competition Law, Business & Professions Code; violation of California's Consumer Legal Remedies Act; violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; breach of express warranty; (7) fraud; (8) constructive fraud; and unjust enrichment, says the complaint. The Plaintiffs purchased and consumed the Defendant's Product that contained PFAS. Colgate Palmolive Co. is a Delaware corporation with its principal place of business located in New York City.[BN] The Plaintiff is represented by: Jason P. Sultzer, Esq. Daniel Markowitz, Esq THE SULTZER LAW GROUP 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Phone: (202) 470-3520 Fax: (888) 749-7747 Email: sultzerj@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and - Nick Suciu III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Road, Suite 115 Bloomfield Hills, MI 48301 Phone: (313) 303-3472 Email: nsuciu@milberg.com - and - Gary Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 221 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Email: gklinger@milberg.com - and - Erin Ruben, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 900 W. Morgan Street Raleigh, NC 27603 Phone: 919-600-5000 Email: eruben@milberg.com COLUMBIA OMNI STUDIO: Hwang Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Columbia Omni Studio, LLC. The case is styled as Jenny Hwang, on behalf of herself and all others similarly situated v. Columbia Omni Studio, LLC, Case No. 1:23-cv-00546 (E.D.N.Y., Jan. 25, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Columbia Omni Studio -- https://columbiaomnistudio.com/ -- is a customer service focused 50 year family-run business helping fashion, graphic, and industrial design studios.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CONSUMER CONSULTING: $2.2K in Attys.' Fees Awarded in Taylor Suit ----------------------------------------------------------------- Magistrate Judge Embry J. Kidd of the U.S. District Court for the Middle District of Florida, Orlando Division, grants in part and denies in part the Plaintiff's Verified Motion for Attorneys' Fees in the lawsuit entitled ROBIN TAYLOR, Plaintiff v. CONSUMER CONSULTING GROUP, LLC, Defendant, Case No. 6:22-cv-482-WWB-EJK (M.D. Fla.). On July 27, 2022, the Plaintiff filed a motion to compel requesting the Court order the Defendant to comply with outstanding discovery requests. Because the Defendant did not respond to the motion, the Court construed the motion as unopposed, granted it, and directed the Defendant to produce the responsive discovery. On Sept. 28, 2022, the Plaintiff filed a second motion to compel that the Court denied without prejudice, directing the Plaintiff to file a motion for sanctions as appropriate. On Oct. 19, 2022, the Plaintiff filed a motion for sanctions for the Defendant's failure to comply with the Court's previous order. On Nov. 4, 2022, Judge Kidd granted the motion for sanctions in part, ordering the Defendant to pay the Plaintiff's reasonable expenses in making the motion for sanctions and the prior motion to compel. Thereafter, the Plaintiff filed the instant Motion, to which the Defendant has filed a response. The Plaintiff seeks an award of $5,000 in attorney's fees for a total of 6.25 hours of work. Judge Kidd previously found that the Plaintiff was entitled to attorney's fees; as such, this Order will not reiterate the Plaintiff's entitlement to fees. The Plaintiff requests that her attorney be compensated at a rate of $800 per hour. Attorney Kaufman has been practicing law since 2008 and has substantial experience handling TCPA class action claims, such as this one, Judge Kidd notes. The fee applicant bears the burden of producing satisfactory evidence that the requested rate is in line with the prevailing market rates. To support her request, the Plaintiff cites to the Middle District and three cases from other jurisdictions--the Central District of California and the Northern District of California. However, based on its own knowledge of the prevailing market rates in the Middle District of Florida, the Court is not persuaded by the Plaintiff's request for an hourly rate of $800. Thus, the Court will rely on its own knowledge and experience to determine a reasonable hourly rate for similar services by lawyers of reasonably comparable skills, experience, and reputation for the award. Therefore, relying on own experience and familiarity with rates in the Orlando area, and given Mr. Kaufman's experience and level of expertise, Judge Kidd finds that $350 is a reasonable hourly rate for Mr. Kaufman. The next step in the analysis is to determine what hours were reasonably expended on the Motion for Sanctions and the previous Motion to Compel. The Plaintiff seeks compensation for 6.25 hours of attorney time. While the Plaintiff did not provide a list of the work performed and the hours expended on each task, where the time or fees claimed seem expanded or there is a lack of documentation or testimonial support the Court may make the award on its own experience. Thus, Judge Kidd finds it is proper to award attorney's fees based on the Plaintiff's representation that her attorney expended 6.25 hours in preparing both motions, which the Court finds reasonable. Accordingly, Judge Kidd finds that the Plaintiff is entitled to an attorney's fees award of $2,187.50. Hence, the Plaintiff's Motion for Attorneys' Fees is granted in part. The Plaintiff is awarded $2,187.50 in attorney's fees. A full-text copy of the Court's Order dated Jan. 12, 2023, is available at https://tinyurl.com/bddw2sbw from Leagle.com. DARE COUNTY, NC: Fourth Circuit Affirms Dismissal of Blackburn Suit ------------------------------------------------------------------- In the case, JOSEPH E. BLACKBURN, JR.; LINDA C. BLACKBURN, all similarly situated individuals, Plaintiffs-Appellants v. DARE COUNTY; TOWN OF NAGS HEAD; TOWN OF DUCK; TOWN OF KILL DEVIL HILLS; TOWN OF MANTEO; TOWN OF KITTY HAWK; TOWN OF SOUTHERN SHORES, Defendants-Appellees, Case No. 20-2056 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit affirms the district court's decision to dismiss the Blackburns' suit for failure to state a claim. The Blackburns own a beach house in Dare County, North Carolina. In March 2020, Dare County's Board of Commissioners, like many governments across the country, enacted several public health restrictions to limit the spread of COVID-19. Dare County banned non-resident property owners from entering the county. As a result, the Blackburns could not reach their beach house for 45 days. The Blackburns responded by suing Dare County for violating the Fifth Amendment's Takings Clause. They sought damages, both for themselves and for a putative class of other non-resident property owners. After the district court found that the ban was not a Fifth Amendment taking and dismissed the Blackburns' suit for failure to state a claim, the Blackburns appealed. The Fourth Circuit states that the Fifth Amendment's Takings Clause provides that "nor shall private property be taken for public use, without just compensation." The Takings Clause aims to prevent the "Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. For the past century, the Supreme Court has also recognized that the Takings Clause protects against restrictions on an owner's ability to use his property that "go too far." Laid out in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), this "essentially ad hoc, factual inquiry," asks us to examine (1) the "economic impact" of the use restriction, (2) how much the restriction interferes with "investment-backed expectations," and (3) "the character of the governmental action." The Blackburns allege that the order prohibiting non-resident property owners from entering Dare County meets each of the Supreme Court's takings tests. That is, they claim that the order was (1) a physical appropriation, (2) a use restriction amounting to a per se taking under Lucas, and (3) a taking under Penn Central's balancing test. But they have failed to state a claim under any approach. The Fourth Circuit finds that the ban did not physically appropriate the Blackburns' beach house. And though it restricted their ability to use the house, compensation is not required under the ad hoc balancing test that determines the constitutionality of most use restrictions. The Fourth Circuit concludes that Dare County's order restricted the Blackburns from using their property in many ways. But not every use restriction is a taking. And, properly viewed, Dare County's order is neither a physical appropriation, a use restriction that renders the property valueless, nor a taking under Penn Central. The effects of the order were temporary, the Blackburns had a chance to occupy their property before it took effect, and while the order was operative they could still exercise significant ownership rights over their property. The Blackburns' complaint, therefore, fails to state a plausible claim for relief, and the district court's decision is affirmed. A full-text copy of the Court's Jan. 25, 2023 Order is available at https://tinyurl.com/3faz3eah from Leagle.com. ARGUED: Lloyd C. Smith Jr., Lloyd Clifton Smith, III, PRITCHETT & BURCH PLLC, Windsor, North Carolina, for the Appellants. Brian Florencio Castro, WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for the Appellees. ON BRIEF: S. Wade Yeoman, Corey Ann Finn, FINN AND YEOMAN, Louisville, Kentucky, for the Appellants. Christopher J. Geis, WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for the Appellees. DEFALCO CONSTRUCTION: Class Cert. Ruling in Matute Suit Appealed ---------------------------------------------------------------- GUSTAVO MATUTE, et al., are taking an appeal from a class certification ruling entered in the lawsuit entitled GUSTAVO MATUTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO AND GIACOMO V. GISONDA AND ANY OTHER, JOSE SALINAS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO AND GIACOMO V. GISONDA AND ANY OTHER, Plaintiffs v. DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO, GIACOMO V. GISONDA, ANY OTHER ENTITIES AFFILIATED WITH, CONTROLLING, OR CONTROLLED BY DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., AND MICHAEL FALCO AND GIACOMO V. GISONDA INDIVIDUALLY, Defendants, Index No. 154387/2020 (N.Y. Sup.). As reported in the Class Action Reporter on Dec. 28, 2022, Justice Louis L. Nock of the New York Supreme Court, New York County, granted class certification in the lawsuit. The putative class representatives and three other putative class members allege that the Defendants each employed them in various construction trades and had a common practice of not paying their workers, including the putative class representatives, all of their earned wages at both prevailing and overtime rates (affidavits of the Class Plaintiffs). In addition, it is alleged that the Defendants failed to issue paystubs or issued inaccurate paystubs, deducted pay for unused lunch breaks, and did not distribute annual wage statements as required by Labor Law Section 195.1. In addition to the affidavits of the Class Plaintiffs, the Plaintiffs also submit work schedules, a sample of the putative class representatives' paychecks and a spreadsheet showing hours worked, and payment receipts. The claims of all the putative class members arise from the same alleged common practice of failing to pay accurate wages, Judge Nock notes. Further, and contrary to the Defendants' arguments regarding part-time versus overtime status and different trades and pay scales, the common claims predominate, and the putative class representatives' claims are typical of the class, especially as individual discrepancies may be easily resolved by reference to the Defendants' records to determine the accurate individual measures of damages. Judge Nock pointed out that inconsistencies in the evidence and testimony presented by the Plaintiffs are not, at this stage, a bar to class certification. The Defendants make no meritorious objections to the requirements of numerosity, or fair representation by the putative class representatives and their counsel of record, Virginia & Ambinder LLP, Judge Nock holds. Their claim that the employer Defendants are not actually related is unsupported by anything other than Defendant Michael Falco's essentially conclusory and self-serving affidavit, says the order. The appellate case is captioned as DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO and GIACOMO V. GISONDA and any other et al vs. DEFALCO CONSTRUCTION INC. et al, Case No. 2023-00444, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department, on January 24, 2023. The petitioners are (1) GUSTAVO MATUTE, individually and on behalf of all other persons similarly situated who were employed by GUSTAVO MATUTE, individually and on behalf of all other persons similarly situated who were employed by DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO and GIACOMO V. GISONDA and any other entities affiliated with, controlling, or controlled by DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., and MICHAEL FALCO and GIACOMO V. GISONDA individually; and (2) JOSE SALINAS, individually and on behalf of all other persons similarly situated who were employed by DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., MICHAEL FALCO and GIACOMO V. GISONDA and any other entities affiliated with, controlling, or controlled by DEFALCO CONSTRUCTION INC., X-TREME CONCRETE INC., LIBERTY READY MIX, INC., and MICHAEL FALCO and GIACOMO V. GISONDA individually.[BN] DELOITTE LLP: S.D. New York Grants Bid to Dismiss Singh ERISA Suit ------------------------------------------------------------------ Judge John G. Koeltl of the U.S. District Court for the Southern District of New York grants the Defendants' motion to dismiss the lawsuit styled RUPINDER SINGH, ET AL., Plaintiffs v. DELOITTE LLP, ET AL., Defendants, Case No. 21-cv-8458 (JGK) (S.D.N.Y.). The Plaintiffs, Rupinder Singh, Jeffrey Popkin, Joni Walker and Jenny Mark brought this putative class action against the Defendants Deloitte LLP, the Board of Directors of Deloitte LLP, and the Retirement Plan Committee of Deloitte LLP alleging a breach of the fiduciary duty of prudence in violation of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. 1001, et seq. The Defendants now move to dismiss various claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Plaintiffs were employed by the Defendant, Deloitte, an audit, consulting, tax, and advisory services firm. The Defendants offered two retirement plans (the "Plans"): the 401(k) Plan and the Profit Sharing Plan ("PSP"). The Plans were administered by the Committee, which was appointed by the Board to be the "fiduciary" of the Plans and had "the authority to control and manage the operation and administration of" the Plans. The Plaintiffs allege that the Committee's role was to ensure that the investments available to both Plans' participants are appropriate, had no more expense than reasonable and performed well as compared to their peers. The Plaintiffs further allege that the Committee fell well short of these fiduciary goals. The Plans are defined-contribution retirement plans. Defined-contribution plans provide that the "retirement benefits provided by the Plans are based solely on the amounts allocated to each individual's account," based on the amount of an individual's contribution to their account. The 401(k) Plan was available to regular full-time employees, who are not designated as partners, principals or managing directors. The PSP was limited to all Principals and Partners (collectively 'Partners') and Managing Directors ('Directors') who meet the eligibility requirements of the PSP. Each of the individual Plaintiffs invested in the 401(k) Plan. None of them participated, or were eligible for, the PSP. The Plaintiffs allege that both Plans are managed in an identical fashion, have identical sponsors, recordkeepers, administrators, managers, and have identical Trustees. The Plans allowed for participants to contribute in several different ways, and Deloitte would match these contributions up to a certain percentage. The Plans managed a substantial amount of assets, with each having over $7 billion dollars in assets under management, qualifying them as "jumbo plans" and among the largest plans in the United States. The Plaintiffs allege that, as jumbo plans, the Plans had substantial bargaining power regarding the fees and expenses that were charged against participants' investments. The Plaintiffs allege that the recordkeeping costs for the Plans were higher than comparable peer plans. The Plaintiffs allege that part of a fiduciary's duty to remain informed about overall trends in the recordkeeping fee marketplace includes conducting a Request for Proposal ("RFP") process at reasonable intervals, and immediately if the plan's recordkeeping expenses have grown significantly or appear high in relation to the general marketplace. The Plaintiffs allege that, because the Plans kept Vanguard as recordkeeper and paid outrageous amounts for recordkeeping from 2015 to 2017, there is "little to suggest" that Deloitte conducted an RFP at reasonable intervals, or certainly at any time prior to 2015 through the present. In addition to the recordkeeping costs, each of the funds offered by the Plans has an associated management cost for "investment management and other services." This fee is referred to as the "expense ratio," and is the amount paid by a plan's participant relative to the percentage of assets held by that participant in the fund. The Plaintiffs identify six funds offered by the Plans that they allege had "excessively high" expense ratios. The funds, and their associated ratios, are as follows: * T. Rowe Price Emerging Markets Equity Trust B: 0.80% * T. Rowe Price In'l Small Cap Equity Trust C: 0.85% * T. Rowe Price Real Estate Fund: 0.78% * T. Rowe Price Inst. Emerging Markets Bond Fund: 0.70% * T. Rowe Price Spectrum Mod GR Allc Fund: 0.89% * Vanguard Explorer Value Fund: 0.55% The Plaintiffs compare these funds to median and average costs of funds according to a study conducted by the Investment Company Institute ("ICI"), and the Plaintiffs argue that the expense ratios for these funds are "excessively high" when compared to the ICI Medians and ICI Averages. The Plaintiffs allege that these costs, in addition to the recordkeeping costs of the Plans, are "indirect evidence" that the Plans were managed imprudently. The Plaintiffs allege only that Plaintiff Popkin invested in one of the challenged funds, the T. Rowe Price Real Estate Fund. The Defendants note in a separate declaration that Popkin also invested in the T. Rowe Price Emerging Markets Equity Trust B. No other Plaintiff has alleged any investment into the other remaining challenged funds. The Plaintiffs claim that, in managing the Plans, the Defendants breached their fiduciary duty of prudence as required by ERISA. The Plaintiffs seek compensatory damages, recovery of any lost profits, an injunction against the Defendants for any further ERISA violations, and attorney's fees. The Defendants argue that the Plaintiffs lack standing with respect to the claims involving the PSP because none of the Plaintiffs participated in the PSP. Judge Koeltl notes that the Plaintiffs have not alleged any involvement in the PSP because none of them have invested in the PSP. Consequently, they are not participants, beneficiaries, or fiduciaries of that Plan within the meaning of ERISA. Accordingly, Judge Koeltl holds that the Plaintiffs lack standing with respect to the PSP because none of them have alleged participation in that Plan. The Plaintiffs also lack standing with respect to their claims involving four of the six challenged funds in the 401(k) Plan because the Plaintiffs only invested in two of those six challenged funds. Injury-in-fact requires the Plaintiffs to show that they have suffered an actual or imminent injury that is concrete and particularized as to the Plaintiffs. Because the Plaintiffs here did not invest in four of the six challenged funds, the allegedly poor performance of those specific products could not have affected the individual account of any of the named Plaintiffs, Judge Koeltl holds. Accordingly, none of the Plaintiffs have shown that the four challenged funds in which they did not invest caused them any particularized injury, and therefore, lack standing to bring their claims against those four funds. That leaves the Defendants' Rule 12(b)(6) motion to dismiss the claims relating to the two remaining challenged funds, Judge Koeltl says. The Plaintiffs allege that the recordkeeping fees charged by the 401(k) Plan were unreasonably excessive, indicating that the Plan was managed imprudently. Because the 401(k) Plan's recordkeeping fees were higher than comparable plans, the Plaintiffs argue that the Defendants' lack of a prudent process to monitor the Plans' fees is evident. However, Judge Koeltl holds, the Plaintiffs must allege more than just that the 401(k) Plan's recordkeeping fees were higher than those of other plans. Here, the Plaintiffs have not done so, Judge Koeltl finds. The Plaintiffs allege that nearly all recordkeepers in the marketplace offer the same range of services. Accepting this as true, Judge Koeltl holds that the Plaintiffs still do not allege, with specificity, what recordkeeping services the 401(k) Plan received from Vanguard. Even further, they have not alleged what recordkeeping services the comparator plans received from Vanguard. Moreover, the Plaintiffs' comparison is disingenuous because it compares the combined direct and indirect costs of the 401(k) Plan to only the direct costs of the comparator plans, Judge Koeltl opines. This comparison is plainly inapposite and "provides little insight" into whether the total recordkeeping fees paid by the Plaintiffs are higher than the total recordkeeping fees paid by participants in the comparator plans. Because the Plaintiffs' comparison does not compare apples to apples, the comparison fails to indicate plausibly imprudence on the part of the Defendants, Judge Koeltl points out. The Plaintiffs also allege that the 401(k) Plan was managed imprudently because the expense ratios charged by the offered funds were excessive. The Plaintiffs compare the cost of the two funds to aggregate medians and averages offered by the ICI. The Plaintiffs' argument that the funds' expense ratios were unreasonably high as compared to an arbitrary benchmark is duplicative of their recordkeeping fee argument and fails for similar reasons, Judge Koeltl holds. The Plaintiffs do not allege why the two funds they challenge are comparable to the ICI Medians and Averages, nor do they offer details for any other comparable funds. The Plaintiffs' only metric of comparison is the "average fees of funds in similarly-sized plans." Moreover, the mere fact that a fund charges an expense ratio higher than the mean or median, in and of itself, does not imply that the cost was excessive, Judge Koeltl says. The Plaintiffs here do not offer any additional context beyond their allegation that the two challenged funds had higher expense ratios as compared to arbitrary third-party median values, Judge Koeltl notes. The Plaintiffs do not allege, for example, that the two funds underperformed relative to other comparable funds with similar or lower expense ratios, which would provide meaningful context from which to determine whether a fiduciary acted prudently. Instead, the Plaintiffs allege only that the funds offered to them by the 401(k) Plan were more expensive than other funds. Without pleading facts indicating additional indicia of imprudence, the Plaintiffs have not alleged plausibly that the plan fiduciaries breached their duty of prudence, Judge Koeltl points out. Accordingly, the Defendants' motion to dismiss the claim of fiduciary breach is granted. The Plaintiffs also bring a claim for a failure to monitor. Both parties agree that this claim is derivative of the Plaintiffs' claim of a breach of fiduciary duty. Because the Plaintiffs have insufficiently pleaded their claim for a breach of fiduciary duty, the Defendants' motion to dismiss the derivative claim for failure to monitor is likewise granted. The Court has considered all of the arguments of the parties. To the extent not specifically addressed here, the arguments are either moot or without merit. For these reasons, the Defendant's motion to dismiss is granted. Judge Koeltl holds that the complaint is dismissed without prejudice to the ability of the Plaintiffs to move to file an amended complaint. Any such motion must be filed within 30 days of the date of this Memorandum Opinion and Order and explain how any proposed amended complaint would resolve the defects in the current complaint. The Clerk is directed to close all pending motions. A full-text copy of the Court's Memorandum Opinion and Order dated Jan. 12, 2023, is available at https://tinyurl.com/mwxmh3du from Leagle.com. DIRECT ENERGY: 2nd Circuit Affirms Summary Judgment in Forte Suit ----------------------------------------------------------------- In the case, Martin Forte, Plaintiff-Appellant, Thomas Aurelia, Jerry Baglione, Richard Schafer, Intervenors-Plaintiffs-Appellants v. Direct Energy Services, LLC, a Delaware Limited Liability Company, Defendant-Appellee, Case No. 22-201 (2d Cir.), the Court of Appeals for the Second Circuit affirms the district court's judgment, entered on Jan. 3, 2022, granting Direct Energy's motion for summary judgment under Federal Rule of Civil Procedure 56. New York law requires every contract for residential energy service to "clearly and conspicuously" identify all variable charges. N.Y. Gen. Bus. Law Section 349-d(7). Moreover, Section 349-d(10) provides a private cause of action to persons injured by a violation of Section 349-d. The Plaintiffs thus brought the putative class action, alleging that Direct Energy's contract for residential energy service, consisting of the Terms and Conditions and accompanying Customer Disclosure Statement, did not clearly and conspicuously disclose that their fixed rate would change to a variable rate at the time of the automatic renewal of the Contract. The district court held as a matter of law that Direct Energy did not violate Section 349-d(7) because the Contract clearly and conspicuously disclosed the change to the variable rate after the fixed rate ended, and thus granted Direct Energy's summary judgment motion. On appeal, the Plaintiffs argue that the district court committed reversible error by: (1) applying a subjective standard in assessing the variable rate disclosure in the Contract; and (2) concluding that the Contract's variable rate disclosure was clear and conspicuous. The Second Circuit reviews de novo a district court's decision to grant summary judgment, construing the evidence in the light most favorable to the party against whom summary judgment was granted and drawing all reasonable inferences in that party's favor. The Second Circuit disagrees with the Plaintiffs' argument that the district court erroneously applied a subjective standard and that that constitutes reversible error requiring remand. It says even assuming arguendo that the District Court erred and applied a subjective standard, any error it may have committed would not require remand because, after conducting its de novo review from the perspective of an objective reasonable consumer, the Second Circuit concludes that the variable rate disclosure in the Contract is clear and conspicuous. The Second Circuit also disagrees with the Plaintiffs' assertion that the variable rate disclosure is not clear and conspicuous in the Contract. It says the Customer Disclosure Statement contains a table that highlights and summarizes several key components of the Contract. When the Contract is analyzed in its entirety in the context of the FTC multi-factor framework, the Second Circuit concludes that the variable rate disclosure in the Contract is clear and conspicuous as a matter of law. Accordingly, the district court properly granted summary judgment in Direct Energy's favor on the Section 349-d(7) claim. The Second Circuit has considered the Plaintiffs' remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is affirmed. A full-text copy of the Court's Jan. 25, 2023 Summary Order is available at https://tinyurl.com/y9p8tkk3 from Leagle.com. SCOTT A. KAMBER -- contact@kamberlaw.com -- (Michael J. Aschenbrener, on the brief), KamberLaw, LLC, Denver, Colorado, for the Plaintiff-Appellant and Intervenors-Plaintiffs-Appellants. MICHAEL D. MATTHEWS, JR. -- matt.matthews@mhllp.com -- (Diane S. Wizig -- diane.wizig@mhllp.com -- & James M. Chambers -- james.chambers@mhllp.com -- on the brief), McDowell Hetherington LLP, Houston and Arlington, Texas, for the Defendant-Appellee. EVERLASTING INTERNATIONAL: Black Sues Over Unlawful Labor Practices ------------------------------------------------------------------- PAUL BLACK, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff v. EVERLASTING INTERNATIONAL MANAGEMENT, a California Corporation, and DOES 1 through 10, inclusive, Defendants, Case No. 23STCV01504 (Cal. Super., Los Angeles Cty., Jan. 24, 2023) is a representation action, pursuant to the California Labor Code, on behalf of Plaintiff and certain individuals arising from the Defendants' alleged unlawful labor policies and practices. The Plaintiff alleges the Defendants' failure to offer 10-minute rest periods and to take an uninterrupted 30-minute meal break for every shift worked; failure to pay for all hours; failure to issue accurate itemized wage statements; failure to provide timely, accurate, itemized wage statements; failure to pay final wages; failure to pay on a bi-weekly basis; failure to reimburse for the equipment Plaintiff purchased to perform work; failure to pay all wages due; failure to take precautions to ensure employee safety after the onset of COVID; and engagement in unfair competition. The Plaintiff was employed by the Defendants as a non-exempt, hourly employee in California, including in and around the city of Covina, County of Los Angeles. Everlasting International Management is a corporation doing business in Covina, California.[BN] The Plaintiff is represented by: Roman Otkupman, Esq. Nidah Farishta, Esq. OTKUPMAN LAW FIRM, A LAW CORPORATION 5743 Corsa Ave., Suite 123 Westlake Village, CA 91362 Telephone: (818) 293-5623 Facsimile: (888) 850-1310 E-mail: Roman@OLFLA.com Nidah@OLFLA.com FARMINGTON HILLS, MI: Summary Disposition in Greenfield Suit Upheld ------------------------------------------------------------------- In the lawsuit entitled JOAN GREENFIELD, Plaintiff-Appellant v. CITY OF FARMINGTON HILLS, Defendant-Appellee, Case No. 357579 (Mich. App.), the Court of Appeals of Michigan affirms the trial court's summary disposition. The Plaintiff appeals by right the trial court's order granting the Defendant's motion for summary disposition. The Plaintiff also challenges the trial court's order denying the Plaintiff's motion for class certification. In November 2018, the Plaintiff filed a class action complaint against the Defendant, challenging the reasonableness of the rates it charged for water and sewer services. The Defendant charges property owners in the City of Farmington Hills for water and sewer services based on their metered use of water. The Plaintiff alleged that, from 2012 to 2018, the Defendant's water/sewer rates were set far in excess of the amount needed to pay for the actual cost of those services. The Plaintiff noted that the Defendant's water and sewer rates included a component charge labeled "Reserves," and that the Defendant had accumulated a cash reserve from such billings of approximately $79 million as of July 1, 2018. The Plaintiff alleged that the reserve rate charges had resulted in the Defendant accumulating funds far in excess of the amount necessary to be held in reserve for repair and maintenance of the water and sewer system. The Plaintiff's complaint challenged the reserve rate charges in six counts: three counts alleging unjust enrichment and three counts alleging assumpsit. Of those six counts, one count of unjust enrichment and one count of assumpsit asserted that the Defendant's rates were arbitrary, capricious, and unreasonable under the common law; two corresponding counts asserted that the Defendant had violated Michigan Compiled Laws (MCL) 141.91; and two other corresponding counts asserted that the Defendant had violated its own ordinances. The Plaintiff filed a motion for class certification on March 6, 2019, asking the trial court to certify a plaintiff class comprised of every property owner, who had paid or incurred the Defendant's water and sewer rates beginning in 2012. The Plaintiff argued that the class was sufficiently numerous, that common questions of fact or law predominated, that her claims were representative of the claims of the class members, and that she would fairly and adequately assert and protect the interests of the class. The Plaintiff also argued that maintenance of the action as a class action would be superior to other methods of adjudication because of the large number of class members, the fact that the class sought equitable relief, and the fact that while the aggregated claims would justify litigation of a class action, the damages suffered by individual class members would not warrant the cost of separate litigation. The Defendant responded, arguing that the Plaintiff could not satisfy the requirements of Michigan Court Rules (MCR) 3.501(A)(1) for a class action. The Defendant argued that its cash reserves were required to keep the system in good repair and working order, as well as anticipated capital replacements during the next five years; it also asserted that the reserve funds were restricted funds that could only be used to pay for water or sewer services. Therefore, the Defendant argued, the Plaintiff could not demonstrate that any members of the putative class had suffered any damages. Moreover, the Defendant argued that the Plaintiff's claims were not typical of the class, that she could not adequately protect the interests of the class, and that her claims were contrary to the best of interests of the other ratepayers. After a hearing on the Plaintiff's class certification motion, the trial court took the matter under advisement. The trial court then issued an order denying the Plaintiff's motion for class certification in December 2019, stating in relevant part that class certification must be denied because she has failed to satisfy the five factors required pursuant to MCR 3.501(A)(1). The trial court found, among other things, that the Plaintiff has not shown that the proposed class members have suffered any actual injury. The Plaintiff moved for reconsideration, which the trial court denied. The Plaintiff applied for leave to appeal in this Appellate Court, which this Court denied. The Plaintiff's case continued as an individual action, and the parties conducted extensive discovery. In March 2021, the Defendant moved for summary disposition under MCR 2.116(C)(8) and (10). The Defendant argued that its rates were set as part of its Capital Improvements Plan (CIP) and that "substantial parts of the water and sanitary sewer system have reached or are nearing the end of their useful life" and would soon require extensive replacement and repairs. The trial court held a hearing on the Defendant's motion in June 2021. The Plaintiff argued that, as a matter of law, the Defendant's reserve rate charges were an impermissible tax, because the Defendant was not permitted to impose charges to finance capital improvements that would result in the Defendant fully recouping its investment in a period significantly shorter than the useful life of the improvements. The Defendant argued that it had demonstrated that the funds collected and the rates charged were reasonable and for a proper purpose. The Defendant also noted that the Plaintiff's expert, in his deposition, had conceded that the Defendant's fees would be reasonable as long as they were necessary for capital improvements that were to be done over the next ten years. The trial court took the matter under advisement. It subsequently issued a written opinion and order granting the Defendant's motion for summary disposition. The trial court held that the Plaintiff had failed to provide proof that the Defendant had collected the funds at issue for any improper purpose. The trial court also noted that the Plaintiff's experts had failed to review and consider the actual capital improvement needs of the City's water and sewer system and all of the Defendant's asset management plans and materials, administrative consent orders and intended use of the reserve funds and concluded that the Plaintiff cannot create an issue of fact by having her expert review only a subset of facts to come up with an opposing opinion. Further, the trial court noted that the Plaintiff's expert had concluded that the Defendant's reserve funds would be reasonable if used within ten years. The trial court, therefore, concluded that the Plaintiff had failed to support any of her claims. This appeal followed. At the outset, the Appellate Court notes that the Plaintiff's statement of questions presented on appeal consists of 16 separately-numbered questions, but the argument section of her brief does not contain separate sections or subsections for each question. The Plaintiff's arguments fall into three broad categories: (1) the trial court erred by dismissing her unjust enrichment and assumpsit claims, because the Defendant's water and sewer rates were unreasonable, (2) the reserve portion of the Defendant's water and sewer rates constituted an illegal tax, and (3) the trial court erred by denying class certification. The Plaintiff argues that the trial court erred by holding that she had failed to establish at least a genuine issue of material fact regarding the unreasonableness of the Defendant's water and sewer rates. The Appellate Court disagrees. In her complaint, the Plaintiff presented claims of unjust enrichment and assumpsit related to the Defendant's water and sewer rates. The heart of the Plaintiff's common-law claims is the allegation that the Defendant's water and sewer rates were unreasonable during the relevant time period (July 1, 2012, through July 1, 2018). The Appellate Court agrees with the trial court that the Plaintiff failed to rebut the presumption of reasonableness. The Defendant's experts opined that its water and sewer rates, as a whole, were proportionate to the rates charged by similarly-sized retail water and wastewater systems both in Michigan and nationwide. The Plaintiff's experts did not address the issue of whether the Defendant's rates, as a whole, were excessive; in fact, the Plaintiff's experts admitted that they had not conducted a comprehensive rate study. Rather, the Plaintiff's experts based their conclusion that the Defendant's rates were unreasonable solely on their opinion that the rates had resulted in an excessively large reserve fund. In plain language, the Plaintiff argues that the Defendant must be overcharging for water and sewer services because an account associated with that system has too much money it. The Appellate Court is unconvinced that the former must necessarily be inferred from the latter. In the absence of a more comprehensive review of cash inflows and outflows associated with the water and sewer system, it appears that the Plaintiff is, at best, speculating about the proportionality of the rate as a whole. In the absence of a more holistic analysis of the Defendant's rates, the Appellate Court concludes that the Plaintiff, even if she could carry her burden of showing that the reserve portions of the challenged rates were illegal or improper, did not carry her burden of proving that the overall rates were unreasonable. The trial court, therefore, did not err by granting the Defendant's motion for summary disposition with respect to those claims. Further, the Appellate Court agrees with the trial court that the Plaintiff has not carried her burden of showing that the reserve portion of the Defendant's sewer rates was illegal or improper. The Panel notes at the outset that the Plaintiff's allegation that the Defendant lacks a written reserve fund policy, even if true, does not resolve the issue. In the absence of a complete review of the Defendant's rate-making process, or the need for large-scale repairs or replacement of assets in the near future, the Plaintiff's allegation that the Defendant's water and sewer rates are unreasonable is speculative, the Appellate Court holds. Mere speculation is insufficient to survive summary disposition. The Plaintiff failed to rebut the presumption of reasonableness, and the trial court properly granted the Defendant's motion for summary disposition on her common-law assumpsit and unjust-enrichment claims. The Plaintiff also argues that the trial court erred by not holding that the portions of the Defendant's water and sewer rates that represent what she alleged to be an overcharge were a disguised tax in violation of MCL 141.91. The Appellate Court disagrees. At the outset, the Appellate Court notes that challenges to a utility fee on the ground that it is a disguised tax, rather than a fee, are generally brought under the Headlee Amendment, Const 1963, art 9, Section 31. The Plaintiff has not, however, brought a claim under the Headlee Amendment. Nor has she argued that MCL 141.91 provides a separate cause of action or provides her with a private right of action. Instead, she brings unjust enrichment and assumpsit claims premised on a claimed violation of MCL 141.91, yet relies upon Headlee challenge cases for her analytical framework. Because the Plaintiff's claim fails in any event, the Appellate Court says it need not decide whether the Plaintiff sufficiently pleaded a valid cause of action in Counts II and V, but the Panel notes that the Plaintiff did not analyze or argue that MCL 141.91 provides a private right of action, and nothing in this opinion should be taken as this Court's holding that such a cause of action exists. In conclusion, the Appellate Court holds that the trial court did not err by granting the Defendant's motion for summary disposition and dismissing the Plaintiff's claims. The Plaintiff did not carry her burden of showing that the Defendant's rates were unreasonable or constituted an illegal tax. Because it affirms the trial court's grant of summary disposition, the Appellate Court need not address the Plaintiff's arguments concerning the denial of class certification. Affirmed. As the prevailing party, the Defendant may tax costs. A full-text copy of the Court's Opinion dated Jan. 12, 2023, is available at https://tinyurl.com/3npvz2z4 from Leagle.com. FATE THERAPEUTICS: Faves Shareholder Class Action Investigation --------------------------------------------------------------- Benzinga of Newswires reports that FATE class action investigation has commenced on behalf of shareholders. Shareholder rights law firm Johnson Fistel, LLP is investigating whether Fate Therapeutics, Inc. FATE ("Fate" or the "Company"), any of its executive officers, or others violated securities laws by misrepresenting or failing to timely disclose material, adverse information to investors. The investigation focuses on investors' losses and whether they may be recovered under federal securities laws. On January 5, 2023, Fate announced that it declined a proposal from Janssen Biotech, for the continuation of the collaboration and option agreement between the parties on revised terms. As a result, all collaboration activities are set to be wound down in Q1 2023. The Company further disclosed that it would prioritize its clinical programs and reduce its operating expenses, through layoffs and the discontinuation of some clinical programs. In the announcement, Fate CEO stated, "We are disappointed that we were not able to align with Janssen on their proposal for continuation of our collaboration, where two product candidates targeting high-value, clinically-validated hematology antigens were set to enter clinical development in 2023." What if I purchased Fate common stock? If you purchased Fate common stock and suffered significant losses on your investment, join our investigation now: Click or paste the following web address into your browser to submit your losses: https://www.cognitoforms.com/JohnsonFistel/FateTherapeuticsInc Or for more information, contact Jim Baker at jimb@johnsonfistel.com or (619) 814-4471 Individuals with nonpublic information regarding the company should consider whether to assist our investigation or take advantage of the SEC Whistleblower program. Under the SEC program, whistleblowers who provide original information may, under certain circumstances, receive rewards totaling up to thirty percent of any successful recovery made by the SEC. For more information, contact Jim Baker at (619) 814-4471 or jimb@johnsonfistel.com. Contact: Johnson Fistel, LLP Jim Baker, Lead Securities Analyst Telephone: (619) 814-4471 Email: jimb@johnsonfistel.com[GN] FCA US LLC: Kim Sues Over Unlawful Sold Vehicles ------------------------------------------------ Ki Hyun Kim, individually, and on behalf of those similarly situated v. FCA US LLC, a Delaware limited liability company, Case No. 2:23-cv-00581 (C.D. Cal., Jan. 25, 2023), is brought under the Defendant's violation of the California Vehicle Code, the Unfair Competition Law ("UCL"), and the Song-Beverly Consumer Warranty Act as a result of the Defendant's unfair, deceptive, and/or fraudulent business practices, and their failure to disclose that the Vehicles were provided in violation of California law. A few months after leasing the Vehicle, Plaintiff discovered that the Vehicle was not equipped to accept a front license plate. California Vehicle Code requires vehicles in California to attach both a front and rear plate to vehicles for safety reasons. The California Vehicle Code states: "When two license plates are issued by the department for use upon a vehicle, they shall be attached to the vehicle for which they were issued, one in the front and the other in the rear." The Plaintiff was unaware that the Vehicle was sold to him in violation of California law until he received his permanent plates and attempted to equip the Vehicle with the required front plate. He searched for a place to attach the front plate but found nothing. The Defendant FCA has saved money and labor by ignoring California's legally binding requirements. They have put the onus on California consumers to remedy their violation of law thereby shifting the expense to the consumer or face receiving a ticket for the violation. It also forces consumers to determine if drilling holes into the car to mount a bracket or plate would be classified as damage to the car upon its return under the terms of a lease. The Defendant has failed to repair or compensate Plaintiff to rectify the defective Vehicle so that it complied with California requirements. Therefore, the Plaintiff and the Class have the right to rescind any Vehicle's lease or purchase with the Defendant. The Defendant's illegal actions have caused Class Members harm. FCA distributed and AutoNation sold the Vehicle that Plaintiff reasonably believed was street-legal but was not under California law. Similarly, the Class Members also reasonably believed the Vehicles that FCA distributed and sold were street-legal but were not. For these reasons, as a result of Defendant's unfair, deceptive, and/or fraudulent business practices, and their failure to disclose that the Vehicles were provided in violation of California law, the owners and/or lessees of the illegal Vehicles have suffered losses in money and/or property. They received less than what the law requires and must expend money to correct Defendant's violations and did not receive the benefit of their bargain. Had Plaintiff and Class members known of the non-street legal status at the time they purchased or leased their Vehicles, they would have purchased from a law-abiding car company instead or would have demanded that they be made street legal or would have paid less for the Vehicles than they did. In sum, Defendant's deliberate strategy to value profit over the truth, adhering to the law and providing a street-legal vehicle, has caused harm to consumers. In this action the Plaintiff seeks to put an end to these unlawful practices and provide remedies for thousands of affected consumers. The unlawful practices engaged in by the Defendant for which Plaintiff seeks class-wide redress relate to their systematic violations of California's laws, says the complaint. The Plaintiff leased a new 2018 Jeep Wrangler (the "Vehicle") on November 8, 2018 from AutoNation Chrysler Dodge Jeep RAM, as agent for FCA, located Valencia, CA. FCA is a multinational corporation and the world's eighth largest auto maker.[BN] The Plaintiff is represented by: Craig Borison, Esq. BORISON LAW 468 North Camden Drive Ste.200-90416 Beverly Hills, CA 90210 Phone: (818) 256-5449 Email: craig@borisonlaw.com - and - Steffan T. Keeton, Esq. THE KEETON FIRM LLC 100 S Commons, Ste 102 Pittsburgh PA 15212 Phone: (888) 412-5291 Email: stkeeton@keetonfirm.com - and - Amir Shenaq, Esq. SHENAQ PC 3500 Lenox Rd. Ste 1500 Atlanta, GA 30326 Phone: (888) 909-9993 Email: amir@shenaqpc.com FEDERATION INTERNATIONALE: Shields Appeals Orders in Antitrust Suit ------------------------------------------------------------------- Plaintiffs Thomas Shields, et al., filed an appeal from the District Court's Order and Judgment dated January 6, 2023, and Order dated February 11, 2022, entered in the lawsuit entitled THOMAS A. SHIELDS, et al., Plaintiffs v. FEDERATION INTERNATIONALE DE NATATION, Defendant, Case No. 18-cv-07393-JSC, in the United States District Court for the Northern District of California. Plaintiffs Thomas A. Shields, Michael C. Andrew, and Katinka Hosszu are professional swimmers who bring federal antitrust claims and a state law tort claim against the Federation Internationale de Natation (FINA), related to FINA's control over international swimming competitions. The Plaintiffs represent an injunctive relief class and seek damages on their own behalf. In a related case, the International Swimming League, Ltd. (ISL), a rival organizer of swimming competitions and buyer of swimmers' services, brings its own federal antitrust claims and state law tort claim against FINA. As reported in the Class Action Reporter, Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California issued an order on February 11, 2022: a. granting in part and denying in part the Plaintiffs' motion for class certification; b. granting the Plaintiffs' motion to appoint class counsel; c. granting in part and denying in part the parties' administrative motions to file under seal; and b. denying the Federation Internationale de Natation ("FINA")'s motion to file supplemental materials. On January 6, 2023, Judge Corley entered another order granting FINA's motions for summary judgment and denying Plaintiffs' and ISL's joint motion for summary judgment. FINA's Daubert motions and motion to strike were denied as moot. The appellate case is captioned as Thomas Shields, et al. v. Federation Internationale De Natation, Case No. 23-15092, in the United States Court of Appeals for the Ninth Circuit, filed on January 24, 2023. The briefing schedule in the Appellate Case states that: -- Appellant's Mediation Questionnaire was due on January 31, 2023; -- Transcript shall be ordered by February 21, 2023; -- Transcript shall be filed by court reporter on March 20, 2023; -- Appellant's opening brief and excerpts of record shall be served and filed on May 1, 2023; -- Appellee's answering brief and excerpts of record shall be served and filed on May 31, 2023; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellee's brief, pursuant to Federal Rules of Appellate Procedure 31 and 9th Cir. R. 31-2.1. Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal.[BN] FITNESS INTERNATIONAL: Bartuccio Balks at Unsolicited Text Messages ------------------------------------------------------------------- DOMINIC BARTUCCIO, individually and on behalf of all others similarly situated, Plaintiff v. FITNESS INTERNATIONAL, LLC D/B/A ESPORTA FITNESS, Defendant, Case No. 8:23-cv-00142 (C.D. Cal., Jan. 24, 2023) seeks legal and equitable remedies resulting from the illegal actions of the Defendant in sending automated telephonic sales calls, in the form of text messages, to Plaintiff's cellular telephone and the cellular telephones of numerous other individuals across Florida, in violation of the Florida Telephone Solicitation Act. The complaint alleges that the Defendant has made, or knowingly allowed to be made on its behalf by another person, at least one text message to each of the telephone numbers regularly used by Plaintiff and the members of the Class in Florida for the purpose of soliciting a sale of consumer goods or services. Prior to making or knowingly allowing another person to make on its behalf the subject telephonic sales calls to Plaintiff and the members of the Class, Defendant failed to obtain their prior express written consent, says the complaint. Fitness International, LLC is the operator of health clubs throughout the United States.[BN] The Plaintiff is represented by: Frank S. Hedin, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Suite 1140 Miami, FL 33131 Telephone: (305) 357-2107 E-mail: fhedin@hedinhall.com FLAGSTAR BANCORP: Safai Suit Removed to C.D. California ------------------------------------------------------- The case styled as Saravenaz Safai, individually, and on behalf of all others similarly situated v. Flagstar Bancorp, Inc., Flagstar Bank, FSB, and Does 1-50, Inclusive, Case No. 30-02022-01266908-CU was removed from the Orange County Superior Court of California, to the U.S. District Court for the Central District of California on Jan. 26, 2023. The District Court Clerk assigned Case No. 8:23-cv-00165 to the proceeding. The nature of suit is stated as Other Contract. Flagstar Bank -- https://www.flagstar.com/ -- is a Michigan-based bank that has one of the largest residential mortgage servicers in the United States.[BN] The Plaintiff appears pro se. The Defendants are represented by: Caroline Williams Van Ness, Esq. SKADDEN ARPS SLATE MEAGHER AND FLOM LLP 525 University Avenue Suite 1400 Palo Alto, CA 94301 Phone: (650) 470-4500 Fax: (650) 470-4570 Email: caroline.vanness@skadden.com GIANNELLA'S MODERN: Alarcon Sues to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Maria Saravia Alarcon, on behalf of herself and all others similarly situated v. GIANNELLA'S MODERN BAKERY LLC and JOHN IMPARATO, Case No. 2:23-cv-00447 (D.N.J., Jan. 26, 2023), is brought to recover unpaid overtime wages, liquidated damages, pre- and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act ("FLSA") and the New Jersey Wage and Hour Law ("NJWHL"). Throughout her employment, the Plaintiff regularly worked sixty hours per week, but the Defendants paid her on a straight time basis that failed to compensate her with overtime pay at a rate of 1.5 times her regular hourly rate for hours worked over forty each workweek, says the complaint. The Plaintiff is a former baking oven operator for Giannella's Modern Bakery LLC. Giannella's Modern Bakery LLC is a New Jersey corporation that owns and operates a wholesale bakery located in Paterson, New Jersey.[BN] The Plaintiff is represented by: Louis Pechman, Esq. Galen C. Baynes, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue - 17th Floor New York, NY 10022 Phone: (212) 583-9500 Email: pechman@pechmanlaw.com baynes@pechmanlaw.com GLOBAL CUSTOM: Rudham Files Suit in S.D. California --------------------------------------------------- A class action lawsuit has been filed against Global Custom Commerce, Inc. The case is styled as Kristie Rudham, individually and on behalf of all others similarly situated v. Global Custom Commerce, Inc., Case No. 3:23-cv-00152-DMS-BLM (S.D. Cal., Jan. 26, 2023). The nature of suit is stated as Other Contract for Contract Dispute. Global Custom Commerce, Inc. -- https://www.globalcustomcommerce.com/ -- doing business as Blinds.com, operates an online window covering store.[BN] The Plaintiff is represented by: Christin Kyungsik Cho, Esq. Simon Carlo Franzini, Esq. DOVEL AND LUNER 201 Santa Monica Blvd., Ste. 600 Santa Monica, CA 90401 Phone: (310) 656-7066 Email: christin@dovel.com simon@dovel.com GO FLORIDA: Price Sues Over Failure to Pay Overtime Compensation ---------------------------------------------------------------- Doreen Price, individually and on behalf of all others similarly situated v. GO FLORIDA INVESTMENTS INC., d/b/a Roelens Vacation Rentals and Management, Roelens Vacations, and Roelens Realty and Project Management, and KOEN ROELENS, Case No. 2:23-cv-00063-JLB-NPM (M.D. Fla., Jan. 26, 2023), is brought against the Defendants for violations of the Fair Labor Standards Act ("FLSA") for failure to pay overtime compensation and a premium for all hours worked over 40 each week. Throughout the Plaintiff's employment she was not paid a premium for overtime hours worked and was paid on a salary basis and she was subjected to numerous unlawful pay practices including being permitted to suffer to work off the clock and being misclassified from overtime pay. The Defendants have maintained a scheme to avoid its obligations to pay overtime wages to its entire office staff and employees in order to save hundreds of thousands of dollars in labor costs each year and maximize profits all to the detriment of its employees. The Defendants mandate and require overtime hours of Plaintiff and numerous similarly situated employees but without paying overtime premiums; instead reaping the financial rewards and benefits of this extra, unpaid overtime work hours of the Plaintiff. The Defendants willfully violated the FLSA by refusing to pay a premium or any additional pay for overtime hours they knew of, and hours they should have known were worked by the Plaintiff, says the complaint. The Plaintiff worked for the Defendants from January, 2022 until December 2022 as Property Manager. Go Florida Investments Inc. (GFII) is a Florida, for profit corporation with a principal place of business in Cape Coral, Florida.[BN] The Plaintiff is represented by: Mitchell L. Feldman, Esq. FELDMAN LEGAL GROUP 6916 W. Linebaugh Ave, #101 Tampa, FL 33625 Phone: 813-639-9366 Fax: 813-639-9376 Email: Mfeldman@flandgatrialattorneys.com HEARST COMMUNICATIONS: Anderson Appeals Case Dismissal to 2nd Cir. ------------------------------------------------------------------ TIFFANI ANDERSON, et al. are taking an appeal from a court order dismissing their lawsuit entitled In re Hearst Communications State Right of Publicity Statute Cases, Case No. 1:21-cv-08895, in the U.S. District Court for the Southern District of New York. The lawsuit is a right of publicity case in which the Plaintiffs readily admit that there has been no violation of the right of publicity. Twenty named plaintiffs (collectively, "Plaintiffs") bring this putative class action against Hearst Communications, Inc. ("Hearst") for selling, renting, or otherwise disclosing its magazine subscriber lists, which include the Plaintiffs' names and other information, to third parties. There is no allegation that the names are ever made public, or that the third-party recipients are even aware of the names included on the lists before obtaining them. Nevertheless, the Plaintiffs contend that this practice misappropriates their identities, and, thus, violates what they characterize as "misappropriation" statutes in nine jurisdictions: Alabama, California, Hawaii, Indiana, Nevada, Ohio, South Dakota, Washington, and Puerto Rico. The Complaint sets forth nine causes of action, alleging violations of right of publicity statutes in nine jurisdictions: Alabama, California, Hawaii, Indiana, Nevada, Ohio, South Dakota, Washington, and Puerto Rico. The Plaintiffs seek statutory damages and injunctive relief in each jurisdiction, as well as punitive damages where available. On February 14, 2022, the Defendant moved to dismiss the complaint, which the Court granted through an Order entered by Judge Ronnie Abrams on Dec. 19, 2022. The Clerk of Court was directed to close the case. Judge Abrams opines that nothing in the text of these statutes, the legislative history, or the case law suggests that misappropriation should be isolated from the overarching right of publicity. In fact, numerous authorities have defined the right of publicity by reference to appropriation. At bottom, Judge Abrams finds the Plaintiffs cannot identify any case, in any jurisdiction, that supports their interpretation of the right of publicity statutes as applied to the sale of subscriber lists. Nor do the Plaintiffs offer any viable limiting principle for their reading of the statutes. Accordingly, the Court concludes that Hearst's alleged sale of its subscriber lists does not implicate the nine right of publicity statutes at issue, and all of the Plaintiffs' claims are dismissed. Because the Court finds no statutory violation, the Court does not reach the alternative question of whether the right of publicity statutes violate the First Amendment. The appellate case is captioned In re Hearst Communications State Right of Publicity Statute Cases, Case No. 23-0079, in the United States Court of Appeals for the Second Circuit, filed on January 19, 2023. [BN] Plaintiffs-Appellants TIFFANI ANDERSON, et al., individually and on behalf of all others similarly situated, are represented by: Philip Lawrence Fraietta, Esq. BURSOR & FISHER, P.A. 888 7th Avenue New York, NY 10019 Telephone: (646) 837-7150 Defendant-Appellee Hearst Communications, Inc. is represented by: Jonathan R. Donnellan, Esq. THE HEARST CORPORATION 300 West 57th Street New York, NY 10019 Telephone: (212) 649-2051 INESS COUTURE INC: Lopez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Iness Couture, Inc. The case is styled as Iliana Lopez, on behalf of herself and all others similarly situated v. Iness Couture, Inc., Case No. 1:23-cv-00687 (S.D.N.Y., Jan. 26, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Iness Couture, Inc. is a source for women's formalwear, including evening gowns for proms, pageants & mothers-of-the-bride.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com JELD-WEN INC: Court Refuses to Remand Faulk Suit to State Court --------------------------------------------------------------- In the lawsuit captioned DAVID G. FAULK, and BONNIE J. FAULK, Plaintiffs v. JELD-WEN, INC., d/b/a Pozzi Window Company; SPENARD BUILDERS SUPPLY, LLC; and RODERICK C. WENDT, Defendants, Case No. 3:22-cv-00171-JMK (D. Alaska), Judge Joshua M. Kindred of the U.S. District Court for the District of Alaska denies the Plaintiffs' motion to remand to state court. The Plaintiffs filed this putative class action in state court on June 3, 2022. They propose a class of individuals, who are owners in Alaska of commercial and residential structures with windows purchased from Pozzi from Jan. 1, 1999, through Dec. 31, 2010, and bring claims arising out of the distribution of allegedly defective windows that were designed, manufactured, marketed, and sold by Pozzi Window Company, a division of JELD-WEN. On July 21, 2022, JELD-WEN and Roderick Wendt removed the action to this Court, alleging that this case falls under the Court's diversity jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). On July 28, 2022, JELD-WEN and Roderick Wendt moved to dismiss this action. On Aug. 15, 2022, the Plaintiffs filed the present motion, arguing that the local controversy exception to the CAFA applies and requires the Court to decline jurisdiction. Thereafter, the Court issued an Order holding the Motion to Dismiss in abeyance pending the resolution of the Plaintiffs' Motion to Remand. The parties agree that minimal diversity exists here because the Plaintiffs are citizens of Alaska, Defendant JELD-WEN is a Delaware corporation with its principal place of business in North Carolina, and Defendant Roderick Wendt is a citizen of Oregon. At oral argument, the Plaintiffs conceded that this case met the amount in controversy requirement and that the sole issue remaining was the applicability of the local controversy exception. As such, the Court finds that the Defendants have met their burden of showing that original jurisdiction exists under 28 U.S.C. Section 1332(d)(2). Under CAFA's local controversy exception, a district court will decline to exercise jurisdiction over a class action in which the plaintiff class and at least one defendant meet certain characteristics that essentially make the case a local controversy. The Plaintiffs assert that the local controversy applies in the instant case because (1) all of the proposed class members are citizens of Alaska; (2) Defendant Spenard is a citizen of Alaska and is a Defendant from whom significant relief is sought and whose alleged conduct forms a significant basis for the claims in the Complaint; and (3) all injuries were incurred in the State of Alaska because the Complaint expressly limits the proposed class to plaintiffs, who are the owners of Alaska commercial and residential structures. At oral argument, the Defendants conceded that the Plaintiffs had met their burden of establishing that (1) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of Alaska, and (2) at least one Defendant, Spenard, is a citizen of Alaska. The parties also agree that no similar class actions were filed in the three-year period preceding the filing of the instant action. Therefore, three issues remain for the Court to address--whether (1) Spenard is a defendant from whom significant relief is sought; (2) Spenard is a defendant whose alleged conduct forms a significant basis of the claims in the Complaint; and (3) the principal injuries resulting from the conduct of each Defendant were incurred in Alaska. Judge Kindred notes that the Plaintiffs seek actual and consequential damages, treble damages, and punitive damages based upon fraud, deceit, and/or misrepresentation from Spenard. Although the Plaintiffs do not appear to seek relief from all three Defendants equally and the exact amount of damages Spenard may be liable for is unknown, there is nothing to suggest that the damages sought from Spenard are insignificant. Accordingly, the Court finds that the Plaintiffs' complaint seeks significant relief from Spenard. Based on the non-specific allegations in the Complaint, the Court finds that the conduct of Spenard does not form a significant basis for the claims in the Complaint. Judge Kindred also notes that given that the local controversy exception is intended to be narrow, such artificial line drawing cannot defeat CAFA jurisdiction. The Court finds that the "principal injuries" requirements has not been met here. Hence, the case does not fall within the local controversy exception to CAFA. The Court finds that the local controversy exception does not apply here and, therefore, remand is not appropriate. The Court acknowledges, however, that the allegations regarding Spenard in the Complaint are vague and there is a possibility that, with some clarification of Spenard's role, the local controversy analysis may be altered. The Plaintiffs suggested during oral argument that they "interacted with Spenard after they started having issues with their windows" and it was Spenard, who was the face, so to speak, of whether the warranty applied or not and was a key part of the fraud and misrepresentation. The Plaintiffs acknowledged that an amended complaint, in light of these issues, could greater spell out in more detail the role that Spenard played. The Defendants argued that Ninth Circuit law is clear that even if the Plaintiffs amend they're still bound by whatever allegations were in the original complaint that was filed in state court. While it is true that courts generally bar post-removal amendments related to jurisdiction, Judge Kindred opines that in Benko v. Quality Loan Service Corp. and Broadway Grill v. Visa, the Ninth Circuit articulated an exception to this rule in recognition of the fact that a complaint drafted for state court may not address CAFA-specific issues, such as the local controversy exception and by amending their complaint in these circumstances, plaintiffs can provide a federal court with the information required to determine whether a suit is within the court's jurisdiction under CAFA. Accordingly, Judge Kindred says, in the Ninth Circuit, post-removal amendment is allowed to add allegations of underlying facts for purposes of clarifying the relationship between the parties and the effect of the class claims on particular defendants. If plaintiffs amend to clarify a local defendant's role, courts can consider the amended complaint to determine whether remand to the state court is appropriate. Judge Kindred points out that this exception is narrow and does not strike a new path to permit plaintiffs to amend their class definition, add or remove defendants, or add or remove claims in such a way that would alter the essential jurisdictional analysis. The non-specific allegations in this case relating to Spenard fall within this exception to the prohibition on post-removal amendments. Spenard is named in several counts, but the relationship between the Plaintiffs and Spenard and between JELD-WEN and Spenard is unclear. The Plaintiffs, therefore, have leave to amend their Complaint solely for the purpose of adding allegations that clarify Spenard's role in the counts alleged against Spenard. For the reasons described in this Order, Judge Kindred holds that the Plaintiffs' Motion to Remand is denied with leave to amend the Complaint. The Plaintiffs may file any amended complaint clarifying the allegations regarding Spenard's conduct within thirty (30) days. The Court emphasizes that the Plaintiffs' leave to amend is narrow, and any amendment falling outside the parameters set in this Order will be stricken. Briefing on the Defendants' Motion to Dismiss remains stayed. If the Plaintiffs elect not to amend the Complaint, the Court will issue a briefing schedule on the Defendant's Motion to Dismiss. A full-text copy of the Court's Order dated Jan. 12, 2023, is available at https://tinyurl.com/dkhu3rs9 from Leagle.com. LE SPORTSAC INC: Class Settlement in Murphy Suit Wins Prelim. Nod ----------------------------------------------------------------- In the case, ANTHONY HAMMOND MURPHY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. LE SPORTSAC, INC., Defendant, Case No. 1:22-CV-00058-RAL (W.D. Pa.), Magistrate Judge Richard A. Lanzillo of the U.S. District Court for the Western District of Pennsylvania, Erie Division, grants the Plaintiff's unopposed Motion to Certify Class for Settlement Purposes and for Preliminary Approval of Class Action Settlement. Murphy has filed an Amended Complaint raising a putative class action lawsuit against Le Sportsac, a handbag company. He is visually impaired and brings the action individually and on behalf of others similarly situated. He alleges that Le Sportsac failed to make its digital properties reasonably accessible to visually impaired persons in violation of the effective communications and equal access requirements of Title III of the American with Disabilities Act (ADA), 42 U.S.C. Section 12181-12189. Murphy, acting individually, commenced this action on Feb. 16, 2022. He alleged that Le Sportsac did not have adequate policies and practices reasonably calculated to cause the website for its online store (http://www.lesportsac.com)(Website) to be fully accessible to blind or visually disabled individuals in violation of the ADA. On Sept. 20, 2022, the Court granted Murphy leave to file an Amended Complaint asserting claims on his own behalf and on behalf of a putative class of similarly situated, visually impaired individuals who have accessed, attempted to access, or been deterred from attempting to access Le Sportsac's website from the United States. The Court docketed Murphy's Amended Complaint the same day. On Dec. 5, 2022, Murphy filed the unopposed Motion to Certify Class and for Preliminary Approval of Class Action Settlement. Le Sportsac consents to the relief requested in the motion. Judge Lanzillo conducted a hearing on the motion on Jan. 19, 2023. Murphy seeks certification of a nationwide class of all blind and visually impaired individuals who use screen reader and other auxiliary aids to navigate Le Sportsac's webpage and other digital content but have been prevented or deterred from doing so due to the absence of features to facilitate access. The Plaintiff seek the certification of the class of "All blind or visually disabled individuals who use screen reader auxiliary aids to navigate content and who have accessed, attempted to access, or been deterred from attempting to access, or who will access, attempt to access, or be deterred from accessing Le Sportsac's Digital Properties including its website at http://www.lesportsac.comfrom the United States." Judge Lanzillo explains that motions to certify a class are governed by Rules 23(a) and (b) of the Federal Rules of Civil Procedure. Rule 23(a) sets forth four threshold requirements for class certification: (1) numerosity, commonality, typicality, and adequacy. To certify a class, a court must also find that one of the following requirements, set forth in Rule 23(b), are met: (1) that prosecution of separate actions risks either inconsistent adjudications, which would establish incompatible standards of conduct for the defendant, or would as a practical matter be dispositive of the interests of others; (2) that defendants have acted or refused to act on grounds generally applicable to the class; or (3) that there are common questions of law or fact that predominate over any individual class member's questions and that a class action is superior to other methods of adjudication. Judge Lanzillo finds that the Rule 23(a) prerequisites are met. He opines that (i) the record establishes that the proposed class significantly exceeds more than 40 individuals; (ii) Murphy identifies two principle common questions; (iii) the class description and the nature of the accessibility claims support a finding that Murphy's claims are typical; and (iv) both Murphy, the proposed lead plaintiff, and Attorneys Fisher, Tucker, Abramowicz, Steiger, and Moore, the proposed class counsel, will fairly and adequately protect the interests of the entire class and provide capable legal representation. Now that he has found that the Rule 23(a) prerequisites are met, Judge Lanzillo must examine the requirements of Rule 23(b). He finds that certification of the proposed class under Rule 23(b)(2) is not precluded when the settlement provides for counsel fees and reimbursement of the costs of issuing the required notice to the putative class since the primary relief provided is injunctive and the challenged conduct of the defendants is such that injunctive relief would be appropriate. Hence, for purposes of the anticipated settlement, the proposed class can be properly certified under Rule 23(b)(2). Judge Lanzillo concludes that the requirements of Rule 23(a) and (b)(2) have been met and that class certification is appropriate. Accordingly, the Plaintiff's request for class certification is granted. Murphy next moves for approval of their Proposed Settlement. The Proposed Settlement Agreement is a comprehensive, 24-page document executed by "Le Sportsac, Inc. Anthony Hammond Murphy, individually and on behalf of the Settlement Class." It commits Le Sportsac to ensuring "Blind or Visually Disabled individuals full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations provided by and through its Digital Properties." In addition, the Proposed Settlement commits Le Sportsac to several changes in policy, procedure, and personnel to promote accessibility of its Digital Properties. Overall compliance is to occur within three years of the Effective Date of the Settlement Agreement. The Settlement Agreement also provides for monitoring of Le Sportsac' compliance with its commitments, annual reporting, and dispute resolution procedures. The Settlement Agreement further provides for an "Incentive Award" in the amount of $1,000 to be paid to the Representative Plaintiff, Mr. Murphy, and the payment of specified attorney's fees and costs to class counsel, subject to court approval. In consideration for the foregoing commitments by Le Sportsac, Murphy and all Settlement Class Members will release Le Sportsac from any and all claims for injunctive, declaratory, and non-monetary relief based on the accessibility of its digital properties and be enjoined from asserting any such claims. The Notice Murphy proposes to issue to potential class members accurately summarizes all material terms of the Settlement Agreement. It proposes to issue to potential class members accurately summarizes all material terms of the Settlement Agreement. Judge Lanzillo finds that the proposed notice is the best practicable form of notice to inform the members of the settlement class and to proceed with the settlement for all claims in a timely and efficient manner. He also finds that the Girsh factors favor the approval of the Proposed Settlement as reasonable and fair to the class members. Finally, considering the experience of the counsel, the time they have devoted to litigation and settlement negotiations, and the quality of their work product, the counsel fees specified in the Settlement Agreement appear entirely reasonable. The counsel further indicates that a fee petition is forthcoming that will provide a specific overview of the Plaintiff's fees expended and costs incurred in connection with the litigation. For the foregoing reasons, Judge Lanzillo applies a presumption of reasonableness to the Proposed Settlement. Further, an application of the Girsh factors, as well as the relevant Prudential factors leads him to the conclusion that the Proposed Settlement is fair and reasonable. Thus, he grants the Plaintiff's motion to certify the proposed class and preliminarily approve the settlement agreement. A separate order follows. A full-text copy of the Court's Jan. 24, 2023 Memorandum Opinion is available at https://tinyurl.com/2p9aead9 from Leagle.com. MAVIS TIRE: Faces Conley Suit Over Store Managers' Unpaid Wages --------------------------------------------------------------- CHRISTOPHER CONLEY, and WILLIAM BRYCE, and SAMUEL DeJESUS, on behalf of themselves, individually, and on behalf of all others similarly-situated, Plaintiffs v. MAVIS TIRE SUPPLY, LLC, Defendant, Case No. 1:23-cv-00602 (S.D.N.Y., Jan. 24, 2023) is a civil action brought by the Plaintiffs arising from the Defendant's alleged unlawful labor practices. The suit seeks damages and other redress based upon willful violations that Defendant committed of Plaintiffs' rights collectively guaranteed to them by: (i) the overtime provisions of the Fair Labor Standards Act; (ii) the overtime provisions of the New York Labor Law; (iii) the NYLL's requirement that employers furnish employees with a wage statement containing specific categories of accurate information on each payday, NYLL § 195(3); (iv) the NYLL’s requirement that employers furnish employees with a wage notice containing specific categories of accurate information at hire; (v) the overtime provisions of the New Jersey Wage and Hour Law; (vi) the full payment provisions of the New Jersey Wage Payment Law; (vii) the overtime provisions of the Pennsylvania Minimum Wage Act of 1968; (viii) the full payment provisions of the Pennsylvania Wage Payment and Collection Law; and (ix) any other claim(s) that can be inferred from the facts set forth herein. Plaintiffs Conley, Bryce, and DeJesus worked for Defendant as store managers, a managerial position in name only. Conley worked as a store manager in New York from November 2020 through May 15, 2021. Bryce worked as a store manager at multiple locations in New Jersey from July 2016 through September 2016, and then again from September 2020 until July 2022. DeJesus worked as a store manager in Pennsylvania from November 2021 until January 16, 2023. Mavis Tire Supply, LLC is a Delaware limited liability company that is headquartered in White Plains, New York, and which operates a nationwide tire sales and automobile services company.[BN] The Plaintiffs are represented by: Michael J. Borrelli, Esq. Alexander T. Coleman, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 910 Franklin Avenue, Suite 200 Garden City, NY 11530 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 MD CBD 180: Marantz's Bid to Renew Opposition to Dismissal Granted ------------------------------------------------------------------ Judge Ingrid Joseph of the Supreme Court of New York, Kings County, grants the Plaintiffs' motion to renew their opposition to a prior motion for dismissal in the lawsuit styled RUTH MARANTZ and ANTONIO CHECCO, on behalf of themselves and all others similarly situated, Plaintiffs v. MD CBD 180 FRANKLIN LLC, Defendant, Index No. 521055/2020 (N.Y. Sup.). Plaintiffs Ruth Marantz and Antonio Checco, on behalf of themselves and all others similarly situated, move for an order, pursuant to New York Civil Practice Law and Rules (CPLR) 2221, renewing their opposition to a prior motion for dismissal by Defendant MD CBD 180 Franklin LLC. The Plaintiffs commenced this putative class action to recover rent overcharge awards and injunctive relief as the result of the Defendant's alleged violation of the Rent Stabilization Law (RSL) and Code (RSC). Construction of the Defendant's building commenced in 2014 and a temporary certificate of occupancy was issued in March 2016. As new construction, the building was eligible to receive tax benefits under Real Property Tax Law Section 421-a, making the building subject to the RSL and RSC for the pendency of the benefits period and requiring the Defendant to register the rents charged to and paid by the first tenants as the initial legal regulated rents. Under the RSL and RSC, an owner cannot register an amount as the initial legal rent but charge the first tenant a lower "preferential rent;" the lower preferential rent charged to the tenant must be registered as the initial regulated rent. The essential claims of the Plaintiffs involve the Defendant's allegedly fraudulent use of rent concessions to market the apartments to tenants using a "net effective" rent (total rent of lease term divided by the number of months in the term), and registering the legal regulated rent as the higher, undiscounted monthly figure in the lease, thereby, avoiding registration of the initial regulated' rents at the lower preferential amounts. The Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7), which motion was granted by this Court by order dated Sept. 30, 2021. In its decision, the Court referred to Fact Sheet # 40 issued by the Division of Housing and Community Renewal (DHCR) which differentiated preferential rents and rent concessions. Fact Sheet # 40 stated that a "concession for specific months, as for example, where the lease provides that the tenant will not have to pay rent for one or more specified months during the lease term" is not considered preferential rent. In finding that the Plaintiffs did not state a cognizable claim to survive dismissal, the Court stated that there was no reason to deviate from the DHCR's distinction between preferential rents and rent concessions for specific months, particularly since there is no statute, regulation or controlling precedent which suggests that the average "net effective rent" charged over the course of a lease term becomes the initial regulated rent rather than the monthly rent first reserved in the lease and charged to the first tenant to occupy an accommodation in a 421-a building. Following the dismissal of the action, the Appellate Division, First Department, issued a decision affirming an order of the Supreme Court, New York County, which also involved the question of whether plaintiff tenants had a cognizable overcharge claim where the landlord employed concession riders resulting in a "net effective" rent lower than that registered as the initial regulated rent. In its decision, the Supreme Court denied defendant landlord's motion to dismiss. Because the Plaintiffs allege, and the leases to the Plaintiffs indicate, that the Defendant continued to offer rent concession riders even after the initial tenants vacated and construction of the building was complete, the Court finds the Plaintiffs have stated a cognizable claim that the Defendant improperly used concession riders in the Plaintiffs' leases as a way to avoid registering lower preferential rents. The documentary evidence submitted in this matter does not otherwise utterly refute the Plaintiffs' claims, Judge Joseph says. Moreover, in light of the Appellate Division's application of Executive Order No. 202.8 (9 NYCRR 8.202.8) in the Flynn case to suspend the four-year lookback period, the Plaintiffs' overcharge claims, filed on Oct. 29, 2020, and based upon initial rents charged in August 2016, fall within the statute of limitations, Judge Joseph holds, citing Flynn v. Red Apple 670 Pac. St., LLC (200 A.D.3d 607 [1st Dept 2021]). Accordingly, Judge Joseph rules that the Plaintiffs' motion for renewal is granted. Upon renewal, the Court's order dated Sept. 30, 2021, is vacated. Upon renewal, the Defendant's prior motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7) is denied. The instant action is restored to active status and the Plaintiffs' amended complaint is reinstated. A full-text copy of the Court's Order dated Jan. 12, 2023, is available at https://tinyurl.com/yvvt83pv from Leagle.com. MEDICARE DIRECT: Misclassifies Insurance Sales Agents, Castro Says ------------------------------------------------------------------ PHELIPE CASTRO, and all others similarly situated, Plaintiff v. MEDICARE DIRECT, LLC, Defendant, Case No. 9:23-cv-80134 (S.D. Fla., Jan. 24, 2023) arises under the Fair Labor Standards Act to recover all federal overtime wages that Defendant refused to pay Plaintiff and all other similarly situated insurance sales agents. According to the complaint, the Defendant has intentionally and willfully misclassified its insurance sales agents as independent contractors to avoid federal overtime wage obligations and federal tax liabilities during periods within the past three years. The Defendant failed to pay Plaintiff and all others similarly situated applicable federal overtime wages pursuant to FLSA during various workweeks within the period when these insurance sales agents worked more than 40 hours in a workweek. The Plaintiff was hired by the Defendant to work as an insurance sales agent to support its Boynton Beach, Florida, location in late July 2022. The Plaintiff's last day working for Defendant was on January 6, 2023. Medicare Direct, LLC operates a direct contracting Medicare company that is based out of Delray Beach, Florida.[BN] The Plaintiff is represented by: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 1800 SE 10th Ave, Suite 205 Fort Lauderdale, FL 33316 Telephone: (954) 871-0050 E-mail: Jodan@jordanrichardspllc.com - and - Joshua H. Eggnatz, Esq. EGGNATZ PASCUCCI, P.A. 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 889-3359 E-mail: Jeggnatz@justiceearned.com METROPOLITAN GENERAL: Bid to Dismiss MSP's 2nd Amended Suit Granted ------------------------------------------------------------------- Judge Robert N. Scola, Jr., of the U.S. District Court for the Southern District of Florida grants with leave to amend the Defendants' motion to dismiss the second amended complaint in the lawsuit captioned MSP Recovery Claims, LLC, MSPA Claims 1, LLC, and MAO-MSO Recovery II LLC, Series PMPI, Plaintiffs v. Metropolitan General Insurance Co., Metropolitan Casualty Insurance Co., Metropolitan Group Property & Casualty Insurance Co., MetLife Auto & Home Group, and Metropolitan P&C Insurance Co., Defendants, Case No. 20-24052-Civ-Scola (S.D. Fla.). The putative class action arises under the Medicare Secondary Payer provisions of the Medicare Act, 42 U.S.C. Section 1395y, et seq. The Plaintiffs claim to have used their proprietary system to identify multiple instances in which their Assignors made conditional payments for accident-related medical expenses that should have been paid and/or reimbursed by the Defendants. Unlike complaints they have filed in similar lawsuits, the Plaintiffs do not provide a specific exemplar in the SAC of an instance where a Medicare Advantage Organization ("MAO") made payments for which the Defendants would have allegedly been responsible. Rather, the Plaintiffs rely exclusively on Exhibit A to their complaint, which provides non-specific data concerning the underlying insurance claims they sue on. The Plaintiffs' failure to set forth specific exemplars of alleged instances in which the Defendants did not extinguish their liabilities serves as the crux of the Defendants' motion to dismiss. The Defendants argue that although the exhibit may be used to allege their purported responsibilities to the Plaintiffs, the exhibit does not suffice to show that the Defendants actually failed to extinguish those liabilities. The result, they say, is that the Plaintiffs do not establish their standing because they do not adequately allege an injury-in-fact. The Court agrees. The SAC certainly contains the Plaintiffs' repeated accusations of the Defendants' general failure to extinguish their liabilities, but nowhere in it is there a clear example of such a failure, Judge Scola holds. Instead of clearly setting forth at least one example of a purported injury, the Plaintiffs' SAC relegates the Court to a matching exercise that requires it to cross-reference a 36-page appendix that lists dozens of purported assignors with the six pages of tiny-sized font that comprise Exhibit A. The exhibit's unhelpfulness is clear, Judge Scola points out. The Court partially grants the Defendants' motion and dismisses the SAC but grants the Plaintiffs leave to file a third amended complaint within 20 days of this Order. That complaint should include, for each Plaintiff, at least one specific exemplar of a payment allegedly owed to it by each Defendant that it purports to state a claim against. And while in the realm of housekeeping: the Court expects the third amended complaint to remediate certain additional points that the Defendants have raised in their motion. It seems that the Plaintiffs' en masse business model has played into their pleadings. Apparently, Appendix 2 of the SAC, which purports to list the Plaintiffs' assignors, contains dozens of entities that are not listed in Exhibit A. For example, Policlinica General de Coamo C.S.P. and Policlinicas Medicas Asociadas, Inc., are both listed as assignors but appear nowhere in Exhibit A. Appendix 2 is superfluous to the extent it includes entities that are irrelevant to this suit, Judge Scola says. The third amended complaint must be tailored to the facts that the Plaintiffs purport to allege. To the extent the Plaintiffs have listed assignors in their Appendix 2 that may or may not have been related to the insurance claims underlying this suit, they are inappropriately included. Indeed, the Plaintiffs cannot logically state plausible allegations on behalf of assignors that they speculate to have been assigned relevant claims from. And relatedly, Judge Scola says, because an assignee only has standing to sue where its ultimate assignor has suffered an injury-in-fact and has validly assigned its claim, any claims asserted on behalf of non-MAO downstream entities should establish the traceability of the purported injuries to those non-MAO entities and, of course, the Plaintiffs. A full-text copy of the Court's Order dated Jan. 12, 2023, is available at https://tinyurl.com/pdy9nb63 from Leagle.com. NEW YORK CITY: Bid for Injunctive Relief in Santiago Suit Denied ---------------------------------------------------------------- Judge Judy H. Kim of the Supreme Court of New York, New York County, denies in its entirety the Plaintiffs' motion for, among other things, injunctive relief and class certification in the lawsuit captioned CHRISTOPHER SANTIAGO, et al., Plaintiffs v. THE CITY OF NEW YORK, NEW YORK CITY COUNCIL, VINCENT SCHIRALDI, MARIO JULIEN, COREY JOHNSON, I DANEEK MILLER, HELEN ROSENTHAL, ERIC DINOWITZ, FRANCISCO MOYA, ADRIENNE E. ADAMS, ERIC A. ULRICH, FARAH N. LOUIS, COMMITTEE ON CIVIL SERVICE AND LABOR, MATHIEU EUGENE, BILL PERKINS, DANIEL DROMM, BRAD LANDER, INEZ BARRON, COMMITTEE ON CIVIL AND HUMAN RIGHTS, DARMA V. DIAZ, BEN KALLOS, JAMES F. GENNARO, LAURIE A. CUMBO, COMMITTEE ON WOMEN AND GENDER EQUITY, Defendant, Index No. 159551/2021 (N.Y. Sup.). The other Plaintiffs are URENA UBALDO, RAHSAAN WILLIAMS, DAVID GONZALEZ, CHRISTOPHER KINLOCH, EBONY COTTMAN, KAREN SEGUR, STANLEY SAINT PHARD, ALBERTO GONZALEZ, ERIKA BRADBY, DIANE PRADE, ANGELA DICHIRO, ARMAND PRETLOW, JOSEPH VANTERPOOL, ROBERTO FERNANDEZ, VERONICA HOWELL, LISA SIMMONS, JASMINE JONAS, RUTHSANA LEE, JOEL CORREA, CARLOS DIAZ, ELLIOTT PAGAN, LUIS PAGAN, SARITA CHAPPLE, KENNETH McFARLANE, KEISHA PEREZ, REGINA WILLIAMS, VICTOR GASKIN, LORENZO PHILLIPS, NIEVES MERCADO, ARIEL MARTINEZ, CHERRELLE DAVIS, BRYANT AHYOUNG, NICOLE JARVIS, NATALIE KWAYKE, ASHLEY MERRERO, MADEL CASTILLO, LATANYA WORLEY, TERRY GREEN, JAMES THOMAS, GREGORY JOHNSON, DEENA BRONSON, ANGELA WARD-CUNNINGHAM, TAYLOR ROGERS, SHAQUELLA ASHBY, MARVENA HEWITT, CHRISTINA WHITIKER, YOLANDA BRYANT, ANTONIO RIVERA, MICHAEL NELSON, MAKEISHA WEEKS, LONISE SMALLS-DAVIS, MAKEDA BRANNON, MARCHELLE FRANKLIN, ALTHEA KNIGHT, CARLTON WALCOTT, QUINN SMITH, WILLIAM PHILLIPS, JEAN SOUFRANTE, DAVID GASKIN, T. RAY JOHNSON, CHARLES WILLIAMS, ALBERTO PORRIAS, KHAMWATIE BUDHAI, EFRAIN PUENTE, MARC TATE, JESSICA SIMMONS, SABREEN TAYLOR, OFC. MONK, COURTNEY JOSEPH, JENNIFER PRICE, TARA BALLARD, CRAIG HOUSTON, OFFICER PORTER, BRITNIE BRUNO, EUGENE LEWIS, JENNIFER McCABE, OFFICER MOON, MAGGIE TORRES, OFFICER GUZMAN, GARY WILLIAMS, LEO PREVILLION, JULIO SURIEL, DILBAG SINGH, MARCUS R. ISAAC, DAVID MEDINA, DEIGHTON GRAY, LEONDRA ROSE, JEFFERSON MILLER, TRACY TOMARS, LUIS A. NIEVES, KEVIN HOLDER, BERESFORD HARRISON, HECTOR NAZARIO, LIZETTE MALDONADO, TAMISHA SUTTON, ADRIAN MILLS, CAMILLE STEPHENSON, ELJEN GREEN, GREGORY HILL, ALEXIS GONZALEZ, CHRISTIAN COSSETTE, LOIS KONG, LEE MITCHELL, ROSETTA WASHINGTON, LAVERQUISTA STEELE, DAVID JIMENEZ, JOHN CRUZ, C. D'AUGUSTINE MAR, EMILE HENRY, JEAN NELSON, NICOLE JOHNSON, SIERRA CUNNINGHAM, TONIA A. JOHNSON, RETISHA MYATT, NATHANIEL LEE, ANTOINETTE EDWARDS, LAKINA WALLACE, ANDRE BROWN, ERIC SAVAGE, PAUL SAVAGE, PAUL S. DAVIS, REGINALD FORDE, SHENIQUA BURTON, KATTIA HYMAN, DALE MOORE, SAUDE HARRIS, HARCOURT V. BULLARD, GRANKS MARLON, LYDIA CUMBERBATCH, GEORGE R. SANTIAGO, RAHMAN TELFEIR, LATISHA BOONE, WILLIAM NAVARRO, TYNESHA GRAY, KAMARI LIVINGSTON, KIMBERLI DAVIS, TAYANNA GRANT, SELVIN STULTZ, SHAQUANA THOMAS, EDWARD KELLY, TRACY MADKINS, EVELYN IRBY, CHRIS ALLEN, JOSSETTA MORGAN, DARRELL RAMOS, JEAN GERMAINE, KOBIE McCOY, and WILLIAM R. WILLIAMS. On Oct. 20, 2021, the Plaintiffs--former and current employees of the New York City Department of Correction ("DOC")--commenced this action against the City of New York (the "City"), the New York City Council, and various New York City Council members, asserting claims for, inter alia, discrimination, hostile work environment, and retaliation in violation of New York City Human Rights Law and New York State Human Rights Law, as well as violations of Equal Protection under the New York State Constitution. The Plaintiffs allege that the Defendants perpetuated widespread racial, gender, and disability-based discrimination within the DOC by: (i) failing to protect female DOC employees from pervasive sexual abuse by male inmates; (ii) fabricating claims of misconduct as a pretext for terminating DOC staff in lieu of instituting mass layoffs; (iii) creating a hostile work environment to encourage voluntary resignations; and (iv) denying DOC employees reasonable accommodations despite adequate showings of disabilities. The Plaintiffs subsequently filed a "First Amended Complaint" without leave of the Court, after their time to do so as of right had expired. This First Amended Complaint was deemed a nullity by the Court (Hon. Adam Silvera). On July 11, 2022, the Plaintiffs moved, by order to show cause, for an order: (1) extending their time to serve the summons and complaint on Vincent Schiraldi, Mario Julien, Adrenne Adams, Eric Dinowitz, Francisco Moya, and James F. Gennaro (the "Individual Defendants"); (2) granting the Plaintiffs leave to amend the complaint to add additional plaintiffs--i.e., Nadja Green, Jane Walrond, Melissa Morris, Diane Brown, David Moscoso, Evelyn Onofre-Sanchez, Verna Liburd, Mariely Vidal, Denise Contreas, Brandon Lockamy, Christopher West, Anjuili Osborne, Taasha Lundy, Richard Hill, Shaun Dixon, Hilario Hernandez, Chameka Mitchell, and Willy Espanol--and add certain members of the New York City Council--i.e., Sarena Townsend, Nantasha Williams, Gale Brewer, Rita Joseph, Kristin Richardson Jospeh, Shekar Krishnan, Shahana Hanif, Sandy Nurse, Crystal Hudson, and Tiffany Caban--as defendants; (3) consolidating four actions pending in the Supreme Court of New York, New York County--i.e., Maldonado v City of New York, Index No. 161205/2021, Bryant v City of New York, Index No. 161047/2021 (which action was dismissed on Dec. 7, 2022), Green v City of New York, Index No. 153915/2022, and Williams v City of New York, Index No. 154563/2022--with the instant action; and (4) permitting the Plaintiffs to move for "Class relief" and affirming the proposed Notice of Pendency of Sexual Abuse Class Action filed on July 11, 2022. The Plaintiffs also seek injunctive relief: (1) directing the Defendants to, within 45 days, submit proposed plans to address the alleged pervasive sexual abuse by male inmates; (2) directing the Defendants to, within 45 days, submit proposed plans to allow the Plaintiffs at risk of termination (or who were already terminated in an OATH proceeding) to transfer to a "comparable municipal agency" within 45 days; (3) directing DOC to adjudicate all requests for reasonable accommodations from the Plaintiffs and other DOC employees; and (4) requiring the DOC to designate Plaintiff Alexis Gonzalez's separation from DOC as a resignation rather than termination. Finally, the Plaintiffs argue that the Court should direct a hearing on whether it is appropriate for the City to proceed in motion to dismiss proceedings. Judge Kim denies the branch of the Plaintiffs' motion seeking an extension of time to serve the Individual Defendants. Judge Kim opines that the Plaintiffs have not shown good cause for their failure to serve the Individual Defendants such that an extension is warranted under the New York Civil Practice Law and Rules (CPLR) Section 306-b. Instead, they baldly assert that attempts at service were made without providing any details, let alone affidavits of service, as to the nature of these attempts (Khedouri v Equinox, 73 A.D.3d 532, 532 [1st Dept 2010]; Zegelstein v Faust, 179 A.D.3d 541, 542 [1st Dept 2020]). To the extent that the Plaintiffs attribute their inability to effect service to the COVID-19 pandemic--claiming, specifically, that many of the Individual Defendants' offices remained closed due to COVID-19--citing the pandemic does not explain the lengthy delay in making the instant application, particularly when this action was commenced nearly a year after the expiration of the tolling period put in place by Executive Order 202.8, Judge Kim notes. The Court further observes that to the extent the Plaintiffs were stymied by office closures, methods of service other than personal service are available under the CPLR. Neither is an extension of time "in the interest of justice" warranted under CPLR Section 306-b in light of the Plaintiffs' failure to demonstrate diligence in attempting to effect service, together with their seven-month delay in seeking the instant relief. Judge Kim denies without prejudice that branch of the Plaintiffs' motion seeking to amend the complaint. Judge Kim opines that the Plaintiffs have failed to either submit a proposed supplemental summons or clearly show the changes or additions made between their 83-page complaint and 96-page proposed amended complaint. Given the voluminous complaint and proposed amended complaint, which involves a multitude of parties and allegations, the Plaintiffs' failure to comply with this requirement of CPLR Section 3025(b) renders an assessment of the proposed amended complaint--particularly in comparison with the original complaint--needlessly complicated. As such, the Court declines to grant the proposed amendment at this juncture. The Plaintiffs' motion to consolidate Maldonado v City of New York, Index No. 161205/2021, Bryant v City of New York, Index No. 161047/2021, Green v City of New York, Index No. 153915/2022, and Williams v City of New York, Index No. 154563/2022, with this action is denied. Judge Kim opines that the Plaintiffs have not established that these actions share facts and law with the present proceeding or, indeed, made any arguments in connection with this branch of its motion. That branch of the Plaintiffs' motion for class action certification is also denied, Judge Kim rules. The Plaintiffs bear the burden to establish these requirements: (1) numerosity; (2) commonality; (3) typicality; (4) fair and adequate representation; and (5) superiority. Judge Kim holds that the Plaintiffs provide no evidentiary support for their request for class action certification. Instead, they rely upon the conclusory allegations of their unverified complaint and the affirmation of the Plaintiffs' counsel, neither of which are sufficient to sustain their burden. In light of the foregoing, the Court declines to approve the Plaintiffs' Notice of Pendency of Class Action. The Plaintiffs' request for injunctive relief is also denied. Judge Kim points out that granting the injunctive relief sought here would be tantamount to improperly declaring the Defendants to be in violation of statute and regulation on a motion for preliminary injunctive relief, without an evidentiary hearing. Finally, the Court rejects the Plaintiffs' unusual request to hold a hearing to consider the propriety of the City engaging in motion practice in the ordinary course of litigation. Accordingly, Judge Kim ordered that the Plaintiffs' motion is denied in its entirety. Within 20 days of the date of this decision and order, counsel for the City of New York will serve a copy of this decision and order, with notice of entry, upon the Plaintiffs, as well as the Clerk of the Court and the Clerk of the General Clerk's Office. Such service upon the Clerk of this Court will be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh). A full-text copy of the Court's Decision and Order dated Jan. 12, 2023, is available at https://tinyurl.com/yck5puvu from Leagle.com. NEW YORK CITY: S.D. New York Denies Allen's Bid for Reconsideration ------------------------------------------------------------------- Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York denies the Plaintiffs' motion for reconsideration in the lawsuit titled CLARENCE BOWEN ALLEN, et al., Plaintiffs v. CITY OF NEW YORK, et al., Defendants, Case No. 19-CV-3786 (JMF) (S.D.N.Y.). In a Memorandum Opinion and Order entered on Sept. 12, 2022, the Court denied a motion for class certification filed by Plaintiffs Annette Birdsong and Herbert Richardson. The Plaintiffs now move, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Local Civil Rule 6.3, for reconsideration; in the alternative, they move, pursuant to Rules 23(f) and 54(b) of the Federal Rules of Civil Procedure for leave to appeal. Judge Furman finds that the Plaintiffs' motion for reconsideration falls woefully short when measured against a strict standard. Indeed, most if not all of the Plaintiffs' arguments are merely rehashed from their original motion papers and, thus, not proper grounds for reconsideration, Judge Furman opines. The Plaintiffs contend that the Court overlooked Shabazz v. Morgan Funding Corp., 269 F.R.D. 245 (S.D.N.Y. 2010), but that 13-year-old case is not controlling, was not cited by the Plaintiffs in their original motion papers, and does not even reflect the correct legal standard, Judge Furman says. The Plaintiffs also invoke Chalmers v. City of New York, No. 20-CV-3389 (AT), 2022 WL 4330119 (S.D.N.Y. Sept. 19, 2022), a decision issued a week after the Court's Opinion. But Chalmers did not change controlling law (nor could it have, as it was a district court decision that is not binding on this Court); it merely applied settled law -- the settled law that the Court applied in its prior Memorandum Opinion and Order -- to a particular set of facts, Judge Furman explains. Moreover, there are -- for reasons the Defendants explain -- fundamental differences between the circumstances here and the circumstances in Chalmers, Judge Furman says. Finally, the Plaintiffs point to no new evidence and no evidence in the record that the Court overlooked in its prior decision. At bottom, the Plaintiffs merely disagree with the Court's decision. But that is a reason to appeal, not a basis to move for reconsideration, Judge Furman points out. In any event, Judge Furman holds that the Plaintiffs' motion falls short on its own terms, as well. Most if not all of their arguments proceed from a single premise: that the Court erred by failing to accept the allegations in their pleadings as true. But that premise is flawed (not to mention belied by the Plaintiffs' own citation to record evidence in their original motion). As noted, the Plaintiffs move in the alternative for leave to appeal the Court's denial of class certification pursuant to either Rule 23(f) or Rule 54(b) of the Federal Rules of Civil Procedure. But neither Rule vests the Court with the authority to grant the Plaintiffs the relief they seek, Judge Furman holds. Accordingly, the Plaintiffs' request for leave to appeal from the Court's Memorandum Opinion and Order must be and is denied. The Court has considered all of the Plaintiffs' arguments for reconsideration and for leave to appeal and finds that they are meritless. Accordingly, the Plaintiffs' motion for reconsideration or, in the alternative, for leave to appeal must be and is denied. The parties are reminded that they are to file a joint letter regarding settlement efforts and summary judgment briefing, within two weeks of the date of this Memorandum Opinion and Order. The Clerk of Court is directed to terminate ECF No. 84. A full-text copy of the Court's Memorandum Opinion and Order dated Jan. 12, 2023, is available at https://tinyurl.com/2y7p85c9 from Leagle.com. PACIFICORP: Or. App. Adheres to Class Certification in James Suit ----------------------------------------------------------------- In the case, Jeanyne JAMES; Robin Colbert; Wendell Carpenter; Jane Drevo; Sam Drevo; Brooke Edge and Bill Edge, Sr.; Lori Fowler; Iris Hampton; James Holland; Rachelle McMaster; Kristina Montoya; Northwest River Guides, LLC; Jeremy Sigel; Shariene Stockton and Kevin Stockton, individually and on behalf of all others similarly situated, Plaintiffs-Respondents v. PACIFICORP, an Oregon corporation; and Pacific Power, an Oregon registered electric utility and assumed business name of PacifiCorp, Defendants-Appellants, Case Nos. 20CV33885, A179027 (Or. App.), the Court of Appeals of Oregon adheres to the Appellate Commissioner's order conditionally certifying an issues-based class pursuant to ORCP 32; and denies interlocutory review, but for different reasons. The matter arises out of a putative class action against PacifiCorp and Pacific Power (PacifiCorp), for allegedly causing or contributing to four wildfires that occurred over the 2020 Labor Day weekend. The trial court conditionally certified an issues-based class pursuant to ORCP 32, comprised of people who were living within the fire boundaries or whose property was damaged by those fires. PacifiCorp sought interlocutory appellate review of the class certification order pursuant to ORS 19.225, which the Appellate Commissioner denied. The Defendants are entities comprising a public utility that owns and/or operates powerlines and related infrastructure and equipment, and provides electricity to consumers, throughout the state of Oregon. The Plaintiffs are citizens of Oregon representing themselves and others who were harmed by wildfires that occurred in Oregon in early September 2020. In their view, the significance of the harm caused by those wildfires is attributable to the Defendants' various acts and omissions. As a result, the Plaintiffs brought the class action against the Defendants for, among other things, negligence, nuisance, and trespass, seeking no less than $1.6 million in damages. The Plaintiffs' complaint alleges that PacifiCorp failed to adequately prepare for or respond to an extreme windstorm that swept through the state. Specifically, they allege that PacifiCorp's power line infrastructure was not fire-safe and that PacifiCorp unreasonably failed to inspect its power lines, clear vegetation, and, during the windstorm, de-energize power lines. As a result, they contend, trees and brush blew into power lines and caught fire, igniting and/or fueling the four fires. The trial court certified 14 common questions of liability, encompassing issues of negligence, causation, and foreseeability, among others. It found that those issues included common questions of law or fact and that those common issues predominate over individual questions. The court also determined that the trial should be bifurcated, such that the first phase would adjudicate the 14 liability issues on a class-wide basis, and the second phase would adjudicate each individual class member's damages. On PacifiCorp's motion, the trial court entered a supplemental order certifying for interlocutory appeal the question of whether common issues predominate over any issues affecting only individual class members. PacifiCorp applied for leave to file a notice of appeal from the certification order, which the Plaintiffs opposed. The Appellate Commissioner denied PacifiCorp's application, determining that the statutory prerequisites contained in ORS 19.225 were not met. PacifiCorp petitioned for reconsideration, which the Plaintiffs also opposed. The Chief Judge granted reconsideration, and the Court of Appeals heard oral argument after receiving supplemental briefing from the parties. The Court of Appeals explains that ORS 19.225 contains two provisions relevant: The first establishes prerequisites for interlocutory appeal of class action orders, and the second grants the Court of Appeals the discretion to permit or deny such appeals. The Appellate Commissioner determined that the case did not satisfy the statutory prerequisites. The Court of Appeals granted reconsideration, noting in particular the "dearth" of Oregon case law addressing both the prerequisites and the considerations that inform the exercise of its discretion. It concludes that, in this case, the statutory prerequisites are met, but the application of the discretionary criteria counsels against immediate review. As a result, on reconsideration, the Court of Appeals adheres to the Appellate Commissioner's order and denies interlocutory review, but for different reasons. The Court of Appeals concludes that it agrees with the trial court that, in the case, predominance is a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. However, in view of the legislature's intent that interlocutory review is generally disfavored and used to promote judicial efficiency in only the exceptional case, it declines to exercise discretion to accept the appeal. The litigation will continue whether or not it reverses the certification order, the legal issue presented is not well suited to interlocutory review, and the certification order is not manifestly erroneous. A full-text copy of the Court's Jan. 25, 2023 Order is available at https://tinyurl.com/yc229333 from Leagle.com. Brad S. Daniels -- brad.daniels@stoel.com -- argued the cause for the Appellants. Also on the supplemental brief were Per A. Ramfjord -- per.ramfjord@stoel.com -- Crystal S. Chase -- crystal.chase@stoel.com -- and Stoel Rives LLP. Matthew J. Preusch -- mpreusch@kellerrohrback.com -- argued the cause for respondents. Also on the supplemental brief were Daniel Mensher -- dmensher@kellerrohrback.com -- Natida Sribhibhadh -- natidas@kellerrohrback.com -- Yoona Park -- ypark@kellerrohrback.com -- and Keller Rohrback L.L.P.; Keith A. Ketterling -- kketterling@stollberne.com -- Timothy S. DeJong -- tdejong@stollberne.com -- Cody Berne -- cberne@stollberne.com -- and Stoll Stoll Berne Lokting & Shlachter P.C.; Nicholas A. Kahl and Nick Kahl, LLC; and Derek C. Johnson, Marilyn A. Heiken, and Johnson Johnson Lucas & Middleton, PC. Nadia H. Dahab -- nadia@sugermandahab.com -- and Sugerman Dahab filed the memorandum amicus curiae for Oregon Trial Lawyers Association. PRUDENT FIDUCIARY: Bid to Compel Arbitration in Burnett Suit Denied ------------------------------------------------------------------- In the case, DAVID BURNETT and DAVID NELSON, as representatives of a class of similarly situated persons, and on behalf of the WESTERN GLOBAL AIRLINES, INC. EMPLOYEE STOCK OWNERSHIP PLAN, Plaintiffs v. PRUDENT FIDUCIARY SERVICES LLC, MIGUEL PAREDES, JAMES K. NEFF, CARMIT P. NEFF, JAMES K. NEFF REVOCABLE TRUST DATED 11/15/12, CARMIT P. NEFF REVOCABLE TRUST DATED 11/15/12, WGA TRUST DATED 8/16/13, and JOHN DOES 1-10, Defendants, C.A. No. 22-270-RGA-JLH (D. Del.), Magistrate Judge Jennifer L. Hall of the U.S. District Court for the District of Delaware denies the Defendants' Motion to Compel Arbitration and to Stay Pursuant to Sections 3 and 4 of the Federal Arbitration Act, or, in the Alternative, to Dismiss. Plaintiffs Burnett and Nelson brought the action alleging violations of the Employee Retirement Income Security Act, 29 U.S.C. Section 1001, et seq. ("ERISA") by the Defendants. They allege, among other things, that the Defendants breached their fiduciary duties under ERISA, causing damage to their retirement plan, and the Plaintiffs seek relief for and on behalf of the plan under 29 U.S.C. Sections 1109(a) and 1132(a)(2). The case involves an employee stock ownership plan ("ESOP"). An ESOP is a type of ERISA-regulated defined contribution plan designed to invest primarily in qualifying employer securities. The Plaintiffs are all current employees of Western Global and have participated in the company's ESOP since its inception in 2020. The exact details of the Plaintiffs' allegations aren't germane to resolving the present motion, but their general claim is that the Defendants breached their fiduciary duties to the Plan by causing it to pay more for shares of Western Global than the shares were actually worth. The Plaintiffs' Complaint seeks recovery on behalf of the Plan under Sections 1132(a)(2) and 1109(a). The Complaint, among other things, seeks to order the Defendants to make good to the Plan the losses resulting from the breaches of fiduciary duties under ERISA and to disgorge any profits they made through the use of Plan assets. It also seeks to remove the Plan trustees and to enjoin the Neffs from serving the Plan in any fiduciary capacity, as well as certain other equitable and declaratory relief. The Plan is governed by an instrument that the parties refer to as the Plan Document. It has a lengthy arbitration provision. The Defendants filed a motion seeking to compel arbitration of the Plaintiffs' claims in accordance with the arbitration provision in the Plan Document. The Plaintiffs oppose. Judge Andrews referred the motion to Judge Hall on July 15, 2022, after briefing was complete. The parties filed numerous supplemental briefs and notices of additional authority, all of which have been considered. Judge Hall heard oral argument on Oct. 27, 2022. On its face, the arbitration provision appears to require the Plaintiffs to bring their ERISA breach of fiduciary duty claims in arbitration. The Plaintiffs, however, offer three independent reasons why they should not be compelled to arbitrate. First, they say that the Plan Document is a "contract for employment" for a "class of workers engaged in interstate commerce" and is therefore exempt from the FAA. Second, they contend that the arbitration provision should not be enforced because they never consented to it. Third, they contend that the arbitration provision is invalid because it precludes Plan participants from seeking substantive statutory remedies provided by ERISA. Because Judge Hall agrees with the Plaintiffs' last argument, he does not consider the first two. She explains that the ERISA statute gives plan beneficiaries the right to sue on behalf of a plan and recover plan-wide damages for a breach of fiduciary duty. But what the statute provides, the arbitration provision takes away: it says that beneficiaries cannot sue on behalf of the Plan and that they cannot recover plan-wide damages. The arbitration provision thus eliminates a right to pursue a remedy provided by a federal statute. Judge Hall states that the FAA does not require a court to enforce a provision in an arbitration agreement that effects an elimination of a statutory right to pursue a remedy. Moreover, an arbitration provision that eliminates the right to pursue a remedy provided by ERISA is invalid as against public policy. Thus, the clause in Section 18.7(b) of the arbitration procedure that purports to bar the Plaintiffs from seeking plan-wide relief is invalid and will not be enforced. And because Section 18.7(b) says that the entirety of the arbitration provision in Section 18.7 will be rendered null and void in all respects if Section 18.7(b) is unenforceable, Judge Hall holds that the Defendants' motion to compel arbitration should be denied. The Defendants' remaining arguments should be rejected. Judge Hall determines that she cannot sever the invalid provision and enforce the remainder of the arbitration procedure because the Plan Document itself says that the invalid provision is not severable. In other words, she is the Plan Document's own non-severability provision that keeps the case in court. For the reasons she set forth, Judge Hall recommends that the Defendants' Motion to Compel Arbitration be denied. Any objections to the Report and Recommendation will be filed within 14 days and limited to ten pages. Any response will be filed within 14 days thereafter and limited to ten pages. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the district court. The parties are directed to the Court's "Standing Order for Objections Filed Under Fed. R. Civ. P. 72," dated March 7, 2022, a copy of which can be found on the Court's website. A full-text copy of the Court's Jan. 25, 2023 Report & Recommendation is available at https://tinyurl.com/44kaz7u2 from Leagle.com. ROBINHOOD MARKETS: Faces Class Action Suit Over Trading Model ------------------------------------------------------------- The Deep Dive reports that Judge opens the door to class action lawsuit against Robinhood Markets, Inc. for its use of a payment for order flow (PFOF) trading model. The risks that Robinhood Markets, Inc. (NASDAQ: HOOD) faces from its use of a payment for order flow (PFOF) trading model appear to have risen significantly. On January 18, U.S. District Judge Yvonne Gonzalez Rogers of the District Court for the Northern District of California ruled that a class action lawsuit related to the practice can move forward. Robinhood promises its customers "commission-free" trades. However, a group of customers accuse Robinhood of concealing how much its business relied on PFOF, which allowed the online brokerage to collect "unusually high" fees from the trading firms to which it routed orders. Robinhood currently sends 90% or more of its orders to these trading firms (also termed market makers or wholesalers). PFOF is derided by full-service (commission-charging) brokers who contend that the practice results in a less favorable transaction price for the online broker's clients. The judge ruled that the Robinhood customer group had standing to sue over Robinhood's fraudulently concealing its actual trading costs. The class includes U.S. users of Robinhood who placed trades on the trading platform between September 1, 2016 and June 16, 2020. Judge Gonzalez Roger's decision follows a mid-December SEC decision which significantly undercuts the future usage of PFOF and will likely be implemented sometime after 1Q 2023. The SEC ruling will require brokers (like Robinhood) to send marketable stock orders of US$200,000 or less into auctions (which each take perhaps three-tenths of a second) where high-speed traders and institutional investors compete to fill the orders at the best prices. An online broker can still route orders to a wholesaler under the amended rules, but the conditions for doing so are tough. Wholesalers must be able to beat a key price metric linked to auction behavior. Alternatively, wholesalers could be utilized in the unlikely event of auction failure. The SEC's new rule could ultimately force Robinhood to start charging commissions. It is unclear how that would be received by its current and prospective clients. Non-zero commissions could dim Robinhood's appeal to its young customer base. None of this can be considered good news for Robinhood. Its PFOF revenue comprised US$680 million of its overall US$1.34 billion revenue for the twelve months ended September 30, 2022. While Robinhood looks reasonably valued, particularly after factoring in its enormous cash holdings -- the company's US$6 billion of net cash almost equals its US$7.8 billion stock market capitalization -- uncertainties over the extent of its potential PFOF class action liability and its future revenue profile are significant. As a result, investors may want to limit exposure to Robinhood's shares. Robinhood Markets, Inc. last traded at US$9.52 on the NASDAQ. [GN] ROBLOX CORP: Court Dismisses V.R.'s First Amended Class Complaint ----------------------------------------------------------------- In the case, V.R., Plaintiff v. ROBLOX CORPORATION, Defendant, Case No. 22-cv-02716-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California grants Roblox's Motion to Dismiss Plaintiff's First Amended Class Action Complaint, filed Nov. 18, 2022. In the operative complaint, the FAC, V.R., a minor, alleges that he, "under his own name and using his own money, made multiple in-game purchases in Roblox, an online game platform, and that he now regrets these purchases and wishes to obtain a full refund. V.R. alleges he is entitled to such a refund, either because his contract with Roblox is "voidable," in that, under California law, a minor is entitled to disaffirm a contract, or, alternatively, because his contract is "void," in that, under California law, a minor cannot enter into a contract relating to any personal property not in the immediate possession or control of the minor. Based on said allegations, V.R. asserts four Counts, titled, respectively, "Declaratory Judgment on Minor's Right to Disaffirm," "Declaratory Judgment on Minor's Inability to Contract for Personal Property Not in Their Immediate Possession or Control," "Violation of the California Business & Professional Code Section 17200," and "Restitution or Unjust Enrichment." As relief, V.R. seeks a declaration of liability, restitution in the amount already paid to Roblox, and an injunction requiring Roblox to allow for refunds on all in-game purchases without restrictions. By order filed Sept. 29, 2022, the Court granted Roblox's motion to dismiss V.R.'s initial complaint, finding his claims were not ripe for adjudication as he did not allege he had requested a refund and that his request was denied. The Court, however, afforded V.R. leave to amend, which option he subsequently elected. In seeking dismissal of the FAC, Roblox argues V.R. has failed to cure the deficiencies identified in the September 29 Order. Judge Chesney agrees. In particular, as previously explained by the Court, a district court lacks subject matter jurisdiction to consider a case that is not ripe, i.e., one that is dependent on contingent future events that may not occur as anticipated, or indeed may not occur at all. As in his initial complaint, V.R. does not allege he has requested a refund, much less that Roblox denied such request. In his opposition, V.R., in essence, acknowledges there was no case or controversy prior to the filing of the instant action, as he asserts that Roblox's obligation to provide him a refund "came due on May 5, 2022," the date on which he filed his initial complaint. As the Court noted in its prior order, however, V.R. cites no authority holding that the requisite case or controversy can be created in the first instance by the filing of a lawsuit. In an apparent attempt to plead futility, and thus excuse his failure to request a refund prior to filing either his initial complaint or the FAC, V.R. alleges Roblox does not operate a uniform policy of allowing minors who disaffirm their contract to receive a full refund, and, citing Reeves v. Niantic, Inc., 2022 WL 1769119 (N.D. Cal. May 31, 2022), argues a case or controversy thus exists. Reeves, however, is readily distinguishable on its facts, in that the defendant therein had a "non-refundability policy." By contrast, V.R. acknowledges in the FAC that the Roblox Terms of Use provide that "all payments for Robux3 are final and not refundable, except as required by law," and that Roblox knows that in the state of California, the law allows minors to disaffirm contracts. Consequently, Judge Chesney holds that the FAC fails to allege facts to support a finding that any request for a refund would have been futile. Accordingly, Roblox's motion to dismiss is granted, as the claims alleged are not ripe, and the FAC is dismissed, without further leave to amend. A full-text copy of the Court's Jan. 25, 2023 Order is available at https://tinyurl.com/msh3hac7 from Leagle.com. SOS LIMITED: Agrees $5-M Settlement in Securities Class Action -------------------------------------------------------------- Charles Toutan of New Jersey Law Journal reports that SOS Ltd., based in China, agreed to a $5 million settlement of a securities class action claiming that it misled investors about a cryptocurrency mining operation. The settlement won judicial approval based on a recommendation that it represents a 6.5% recovery of the optimal damages amount. Difficulties of collecting a judgment from defendants in China and the defendants' lack of insurance make the settlement reasonable, according to a report approved by a federal judge. A company operating what analysts said was a "pump and dump" cryptocurrency mining scheme settled a securities class action brought on behalf of investors for $5 million. Senior U.S. District Judge Robert Kugler on Friday adopted a report by U.S. Magistrate Judge Elizabeth Pascal recommending approval of the settlement with SOS Ltd. of Qingdao City, China. The report called for allocation of $1.7 million from the settlement fund for legal fees and costs. The settlement represents a recovery of 6.5% of $76 million, which is the best-case scenario for recovery of damages by the class. But Pascal wrote that the $5 million settlement was reasonable for several reasons. SOS has no insurance coverage and must pay the settlement out of its own pockets, and in 2021 China banned crypto-mining and cryptocurrency transactions, which limits the company's future prospects, according to Pascal. The defendants are located in China, and enforcing a judgment in China is "very, very difficult," the magistrate wrote. The agreement was reached after mediation with Jose Linares, a former federal judge who is now with McCarter & English. The suit claimed that SOS changed its business model multiple times and made false statements about the location of its offices, the nature of cryptocurrency mines it claimed to have purchased and agreements it had with other fabricated businesses. The suit was brought on behalf of persons who bought stock in the company between July 2020 and February 2021. No potential class members objected to the settlement terms, even after more than 125,000 notices of the settlement terms were sent out by various means. According to the suit, SOS purports to be a technology company that provides marketing data, technology and solutions for emergency rescue services. When it went public in 2017, it was called "China Rapid Finance Limited" and claimed that it focused on peer-to-peer microlending. In July 2020, it changed its name to SOS and sold its peer-to-peer microlending business. At that time it claimed to rebrand itself as an emergency services business, but less than a year later, it again shifted its focus, this time to cryptocurrency mining, the suit claimed. Cryptocurrency mining is the process of using sophisticated computer hardware to solve complex calculations, which results in the creation of new cryptocurrency tokens, the suit said. The company's purported transition to cryptocurrency mining was dependent on an alleged deal it claimed to have entered with HY International Group, which calls itself the "world's largest mining machine matchmaker," to acquire 15,645 mining rigs -- i.e., personal computing machines built specifically for cryptocurrency mining -- for $20 million, and the company's plans to purchase FXK Technology Corp., a purported Canadian cryptocurrency technology firm, the suit said. But the suit said that HY and FXK were either undisclosed related parties or entities fabricated by SOS, and the reports about purchasing mining rigs were erroneous. As a result, SOS's public statements were false and misleading, the suit said. Investors suffered losses when the price of SOS's American Depositary shares fell by 21%, or $1.27 per share, in February 2021. The fall was precipitated by a report from securities analysts Hindenburg Research and Culper Research that stated that SOS was "an intricate, 'pump and dump' scheme that used fake addresses, undisclosed related entities, and doctored photos of cryptocurrency mining rigs to create an illusion of success." Attorneys from Faegre Drinker Biddle & Reath represented SOS and co-defendants Yandai Wang and Eric Yan. That firm's Sandra Grannum declined to comment on the settlement. Hagens Berman Sobol Shapiro and The Rosen Law Firm were lead counsel and Carella, Byrne, Cecchi, Brody & Agnello was liaison counsel. Kevin Cooper of Carella Byrne declined to comment on the settlement. Attorneys from the other firms did not respond to requests for comment. [GN] T-MOBILE US: Corkins Sues Over Failure to Protect Personal Info --------------------------------------------------------------- BRYAN CORKINS, ALEXANDRIA REHMAN, and PATRICK THORNBURGH, individually, and on behalf of classes of similarly situated individuals, Plaintiffs v. T-Mobile US, Inc., Defendant, Case No. 2:23-cv-02031 (D. Kan., Jan. 24, 2023) is a class action for damages against Defendant T-Mobile US, Inc. and its failure to exercise reasonable care in securing Plaintiffs' sensitive personal information including without limitation, unencrypted and unredacted name, contact and demographic information, and date of birth. The Plaintiffs seek damages for themselves and other similarly situated T-Mobile customers, or any other person(s) impacted in the data breach at issue, as well as other equitable relief, including, without limitation, injunctive relief designed to protect the sensitive information of Plaintiffs and other Class Members. The Plaintiffs and Class Members have suffered numerous actual and concrete injuries as a direct result of the data breach, including: (a) invasion of privacy; (b) financial costs incurred mitigating the materialized risk and imminent threat of identity theft; (c) loss of time and loss of productivity incurred mitigating the materialized risk and imminent threat of identity theft; (d) financial costs incurred due to actual identity theft; (e) loss of time incurred due to actual identity theft; (g) the loss of benefit of the bargain (price premium damages), to the extent Class Members paid Defendant for services; (h) deprivation of value of their PII; and (i) the continued risk to their Sensitive Information, which remains in the possession of Defendant, and which is subject to further breaches, so long as Defendant fails to undertake appropriate and adequate measures to protect Plaintiffs' and Class Members' sensitive information, says the suit. T-Mobile US, Inc. is a telecommunications company that provides wireless voice, messaging, and data services along with mobile phones and accessories.[BN] The Plaintiff is represented by: Thomas P. Cartmell, Esq. Eric D. Barton, Esq. Tyler W. Hudson, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Ave., Ste. 300 Kansas City, MO 64112 Telephone: (816) 701-1100 Facsimile: (816) 531-2372 E-mail: tcartmell@wcllp.com ebarton@wcllp.com thudson@wcllp.com T-MOBILE US: Fails to Protect Personal Info, Clark Suit Alleges --------------------------------------------------------------- Stephan Clark, individually and on behalf of others similarly situated, Plaintiff v. T-Mobile US, Inc. and T-Mobile USA, Inc., Defendants, Case No. 2:23-cv-00103 (W.D. Wash., Jan. 24, 2023) is a class action against the Defendants seeking monetary damages, restitution, and/or injunctive relief for the proposed Class and Subclass after Plaintiff's personally-identifiable information was exfiltrated and compromised in the data breach announced by T-Mobile on January 19, 2023. Plaintiff Clark, a current customer of T-Mobile, learned about the data breach from a news article that he read on January 20, 2023. He immediately contacted T-Mobile and was informed that his PII was compromised in the data breach. As a result of the data breach, Plaintiff Clark spent time and effort researching the data breach and reviewing his accounts for fraudulent activity. Also as a result of the data breach, the Plaintiff spent time and money placing credit freezes with the three major credit reporting bureaus, says the suit. Given the highly-sensitive nature of the information stolen, and its subsequent dissemination to unauthorized parties, Plaintiff Clark has already suffered injury and remains at a substantial and imminent risk of future harm, the suit asserts. T-Mobile US, Inc. and its wholly-owned subsidiary T-Mobile USA, Inc. are telecommunications companies that provide wireless voice, messaging, and data services along with mobile phones and accessories.[BN] The Plaintiff is represented by: Cari Campen Laufenberg, Esq. KELLER ROHRBACK L.L.P. 1201 3rd Avenue Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 E-mail: claufenberg@kellerrohrback.com - and - Norman E. Siegel, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Rd., Ste. 200 Kansas City, MO 64112 Telephone: (816) 714-7100 E-mail: siegel@stuevesiegel.com - and - James J. Pizzirusso, Esq. HAUSFELD LLP 888 16th St. NW, Ste. 300 Washington, DC 20006 E-mail: jpizzirusso@hausfeld.com UNITED STATES: Micu Appeals Judgment to Federal Circuit Court ------------------------------------------------------------- CHRISTINA MICU, et al., are taking an appeal from a court order in the lawsuit entitled Christina Micu, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES, Defendant, Case No. 1:17-cv-01277-CFL, in the U.S. Court of Federal Claims. According to the complaint, between August 25 and August 29, 2017, Tropical Storm Harvey hit Houston bringing with it rainfall over four days. Many parts of Harris County and Fort Bend Counties received up to 50 inches of rain. The federal government only owns a portion of the land inside each reservoir, but the rest is private property upon which Plaintiffs own homes and businesses. During and after Harvey, the federal government flooded many thousands of homes and businesses within Addicks & Barker Reservoirs. The federal government does not own drainage or flowage easements on the private properties inside the reservoirs. The federal government has never offered to purchase drainage or flowage easements on the private properties inside the reservoirs, says the suit. As the reservoirs were designed to do, the federal government intentionally stored storm waters inside the reservoirs and on the Plaintiffs properties for a public purpose, but without obtaining permission or ownership of the right to do so. The Plaintiffs have been deprived of their private property, without due process, because it has been "taken for a public use, without just compensation," asserts the complaint. The Plaintiffs seek compensation for the permanent taking of property and the taking of drainage or flowage easement that the federal government utilizes on their properties, the complaint says. On October 31, 2017, the Court released an order stating that the identified cases and any subsequently filed directly or indirectly related cases were consolidated for pretrial management and assigned to Chief Judge Susan G. Braden. Judgment was entered by the court in the case on November 1, 2022. The appellate case is captioned Micu v. U.S., Case No. 23-1412, in the United States Court of Appeals for the Federal Circuit, filed on January 20, 2023. [BN] Plaintiffs-Appellants CHRISTINA MICU, et al., on behalf of themselves and all others similarly situated, are represented by: Daniel H. Charest, Esq. BURNS CHAREST LLP 900 Jackson Street Dallas, TX 75202 Telephone: (469) 904-4550 Defendant-Appellee UNITED STATES is represented by: William B. Lazarus, Esq. UNITED STATES DEPARTMENT OF JUSTICE P.O. Box 7415 Washington, DC 20044 Telephone: (202) 514-4168 - and - Kristine S. Tardiff, Esq. UNITED STATES DEPARTMENT OF JUSTICE 53 Pleasant Street Concord, NH 03301 Telephone: (603) 230-2583 VAXART INC: Attorneys' Fees & Expense Awarded in Securities Suit ---------------------------------------------------------------- In the case, In re VAXART, INC. SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS, Case No. 3:20-cv-05949-VC (N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for the Northern District of California approves the Plaintiffs' Counsel's Fee and Expense Application. The Court-approved form of Notice disseminated in the matter advised Settlement Class Members: (i) that the Plaintiffs' Counsel intended to submit a Fee and Expense Application in which they would apply for an award of attorneys' fees in an amount not to exceed 30% of the Settlement Fund, and for reimbursement of litigation expenses in an amount not to exceed $150,000, plus awards totaling no more than $10,000 in aggregate to the representative Plaintiffs pursuant to 15 U.S.C. Section 78u-4(a)(4); (ii) that a copy of the Plaintiffs' Counsel's actual Fee and Expense Application would be filed on Dec. 7, 2022, and would thereafter be promptly made available for review by Settlement Class Members on the dedicated Settlement Website in the matter (www.vaxartsecuritieslitigation.com); and (iii) that all Class Members had the right to submit to the Court objections to the Fee and Expense Application or any portion thereof, either in writing or at the Fairness Hearing, by following the procedures set forth in the Notice. Judge Chhabria has considered all materials submitted in connection with the Fee and Expense Application, and reviewed the relevant standards and factors for assessing the fairness and reasonableness of the requested Fee and Expense Application. Judge Chhabria awards the Plaintiffs' Counsel is awarded as attorneys' fees a sum equal to 25% of the Settlement Amount, plus $99,468.65 in litigation expenses (both amounts to be paid from the Settlement Fund), together with any interest thereon for the same time period and at the same rate as that earned on the Settlement Fund until paid pursuant to the terms set forth in the Stipulation, but subject to the hold-back provisions of the Order. He finds that the amount of fees awarded is fair, reasonable, and appropriate. Such fees and expenses may be paid out of the Settlement Fund to the Class Counsel at any time after entry of the Order, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the Settlement or any part thereof, provided, however, that: (A) such payments shall be subject to all of the terms, conditions and obligations (including repayment obligations) set forth in the Stipulation, and that (B) consistent with the Court's established practice, a holdback of 10% of the awarded fees shall be applied, such that 10% of the awarded attorneys' fees shall not be payable until the Court rules on the Plaintiffs' motion for approval of the Settlement Class Distribution Order pursuant to the Stipulation, which motion shall be accompanied by a proposed order requesting the release of the remainder of the Court's fee award. Each of the three Class Representatives is awarded $3,300 for their reasonable costs and expenses (including lost wages) incurred as a result of serving as a representative of a plaintiff class, which sums Judge Chhabria finds to be fair and reasonable. Any appeal or any challenge affecting the Court's approval regarding the Fee and Expense Application shall in no way disturb or affect the finality of the Court's Judgment approving the Settlement, or any other judgment that may be entered in the Action. A full-text copy of the Court's Jan. 25, 2023 Order is available at https://tinyurl.com/4m2uppdc from Leagle.com. VAXART INC: Class Settlement in Securities Suit Wins Final Approval ------------------------------------------------------------------- In the case, In re VAXART, INC. SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS, Case No. 3:20-cv-05949-VC (N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for the Northern District of California enters Order and Final Judgment approving the Parties' Stipulation and Agreement of Partial Settlement, dated July 27, 2022. The Settling Parties, through their counsel, have agreed, subject to judicial approval following the issuance of notice to the Settlement Class and a Fairness Hearing, to settle and dismiss with prejudice the claims asserted against the Settling Defendants upon the terms and conditions set forth in the Parties' Stipulation of Settlement dated July 27, 2022. On Oct. 3, 2022, the Court issued its Order Granting Preliminary Approval of Class Action Settlement, For Issuance of Notice to the Settlement Class, and For Scheduling of Fairness Hearing in the Action. On Jan. 12, 2023, following the issuance of notice of the Settlement to the Settlement Class, the Court held its Fairness Hearing. Judge Chhabria has considered all matters and papers submitted to the Court at or in connection with the Fairness Hearing and otherwise. He finds that the Settlement is fair, reasonable, and adequate and should be finally approved, that the Judgment attached to the Stipulation of Settlement should be entered and that the proposed Plan of Allocation provides a fair and reasonable method to allocate the Net Settlement Fund among the Settlement Class Members. Accordingly, Judge Chhabria certifies the action as a class action, solely for purposes of the Settlement, on behalf of all persons or entities who purchased or otherwise acquired Vaxart common stock (ticker: VXRT) between June 15, 2020, and Aug. 19, 2020, inclusive, and were damaged thereby. For the purposes of the Settlement only, (a) Plaintiffs Wei Huang, Langdon Elliot, and Ani Hovhannisyan are appointed as the Class Representatives; and (b) the law firms Hagens Berman Sobol & Shapiro LLP and Scott+Scott Attorneys at Law LLP are appointed as the Class Counsel. Judge Chhabria approves the Stipulation of Settlement, and directs the Settling Parties to consummate the Settlement in accordance with the terms and provisions of the Stipulation of Settlement. All claims asserted against the Settling Defendants are dismissed with prejudice as against each of the Settling Parties. The Settling Parties will bear their own costs, except as otherwise provided in the Stipulation of Settlement. Nothing contained in the Order and Final Judgment will, however, bar any Settling Party, Released Defendant Persons, or Released Plaintiff Persons from bringing any action or claim to enforce the terms of the Stipulation of Settlement or the Order and Final Judgment. The "Released Defendant Persons" will also include Floriou, Latour, Davis, Finney, Yedid, Tucker, Boyd and Maher generally, without being limited to their capacities as current or former Vaxart officers or directors. To the extent required by the Exchange Act at Section 21D, as amended by the Private Securities Litigation Reform Act, Non-Settling Defendants Armistice, Boyd and Maher will be entitled to a reduction of any judgment that may be entered against them in the Action that is equal to the greater of: (i) the Settlement Amount; or (ii) the Released Defendant Persons' proportionate share of the fault. The Plaintiffs' Counsel and the Claims Administrator are directed to administer the Plan of Allocation in accordance with its terms and the terms of the Stipulation of Settlement. Without affecting the finality of the Order and Judgment in any way, the Court retains continuing exclusive jurisdiction over the Settling Parties and the Settlement Class Members for all matters relating to the Action. Absent further order from the Court, Judge Chhabria sets the following schedule for completing the administration of the Settlement: (a) the Claims Administrator will complete its review of submitted Proofs of Claim and calculation of Recognized Claim Amounts for Authorized Claimants within 180 days of the Court's existing deadline for putative Settlement Class Members to submit completed Proofs of Claim; (b) within 21 days of the later of (i) the Claims Administrator's completion of its review of submitted claims or (ii) the date on which each of the conditions set forth in the Stipulation of Settlement has been met, the Plaintiffs' Counsel will submit a distribution motion to the Court, which shall seek entry of an Order approving the Claims Administrator's claims determinations and resolving any unresolved disputes raised by any Claimants relating to the Claims Administrator's administrative determinations; (c) unless the Distribution Order provides for a later date, the Claims Administrator will mail checks distributing settlement fund payments to eligible Settlement Class Members within 30 days of entry of the Distribution Order, which checks shall request that recipients cash them within 60 days; (d) within 120 days of the mailing of distribution checks, the Plaintiffs' Counsel shall file a Post-Distribution Accounting containing all of the information set forth in the Court's Standing Order for Civil Cases Before Judge Vince Chhabria, except that such report shall also advise the Court whether, in accordance with the Stipulation, the Plaintiffs' Counsel have determined that a second distribution of unclaimed settlement funds should be pursued, or whether any then-remaining unclaimed settlement funds should be contributed to a non-sectarian, non-profit Section 501(c)(3) organization as may be deemed appropriate by the Court; (e) Except as provided in sub-paragraphs (a)-(d), without further order of the Court the Settling Defendants and the Plaintiffs may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation of Settlement. There is no just reason for the delay in the entry of the Order and Final Judgment, and immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The finality of the Order and Final Judgment will not be affected, in any manner, by rulings that the Court may make on the Plaintiffs' Counsel's Fee and Expense Application. If the Settlement is not consummated in accordance with the terms of the Stipulation of Settlement, then the Stipulation of Settlement and the Order and Final Judgment will be null and void, of no further force or effect, and without prejudice to any of the Settling Parties, and may not be introduced as evidence or used in any action or proceeding by any Person against the Settling Parties, and each of the Settling Parties shall be restored to his, her or its respective litigation positions as they existed immediately prior to the date of the execution of the Stipulation of Settlement. For the reasons stated in the Plaintiffs' reply in support of final approval, the objection is overruled A full-text copy of the Court's Jan. 25, 2023 Order & Final Judgment is available at https://tinyurl.com/ye26ffau from Leagle.com. VAXART INC: Final Judgment Entered in Securities Class Suit ----------------------------------------------------------- In the case, In re VAXART, INC. SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS, Case No. 3:20-cv-05949-VC (N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for the Northern District of California enters a Judgment dismissing with prejudice the claims asserted in the securities class action as to Settling Defendant Vaxart and as to additional Settling Defendants Andrei Floroiu, Wouter Latour, Todd Davis, Michael Finney, Robert Yedid, and Sean Tucker, but only in their capacities as current or former officers or directors of Vaxart. The Judgment is in accordance with and subject to the Stipulation and Agreement of Partial Settlement in the matter dated July 27, 2022. Pursuant to Rule 54(b), Judge Chhabria directs the entry of the Final Judgment as to each of the Settling Defendants, having determined that there is no just reason for delay. Without affecting the finality of the Judgment, the Court reserves jurisdiction over the Plaintiffs, the Settlement Class, and the Settling Defendants, as those terms are defined in the Stipulation, as to all matters concerning administration, consummation, and enforcement of the Stipulation. A full-text copy of the Court's Jan. 25, 2023 Judgment is available at https://tinyurl.com/4b7hcwmd from Leagle.com. WAL-MART STORES: Fourth Cir. Affirms Dismissal of Henderson Suit ---------------------------------------------------------------- In the lawsuit styled JEREMIAH HENDERSON, Plaintiff-Appellant, and SHANE M. JENKINS, on behalf of himself and others similarly situated, Plaintiff v. WAL-MART STORES, INC., Defendant-Appellee, Case No. 21-2417 (4th Cir.), the United States Court of Appeals for the Fourth Circuit affirms the order granting the Appellee's motion to dismiss. Appellant Jeremiah Henderson appeals the district court's dismissal of his complaint, in which he alleged that employees of Wal-Mart Stores, Inc. ("Appellee") subjected him to false imprisonment by placing a hand on the Appellant's shopping cart and requesting to see the Appellant's receipt as he exited the store. The Appellant also sought a declaration that the Appellee's alleged practice of requiring individuals to show their receipt before leaving a store, without probable cause, was unlawful because it violated Virginia's Shopkeeper's Privilege laws. The district court granted the Appellee's motion to dismiss both claims for failure to state a claim upon which relief can be granted. On Oct. 15, 2018, the Appellant -- a 77-year-old man suffering from several health conditions, including chronic obstructive pulmonary disease -- patroned a Wal-Mart store located on Valley View Boulevard in Roanoke, Virginia. The Appellant, who allegedly paid for all of the items in his shopping cart, was exiting the store when a store associate, Jeannette Wheeler, stopped him, held onto his shopping cart, and asked to see his receipt. When the Appellant failed to produce his receipt, Wheeler requested assistance with the store's intercom system. A second Wal-Mart employee, Thomas Christopher Shelton, came to the front of the store. Shelton stood in front of the Appellant, separated the Appellant from his cart, and then told an on-site police officer, Austin K. McClain, that he wanted the Appellant "out of the store." This case was initially brought on May 23, 2019, when Shane Jenkins filed a pro se complaint, on his own behalf and on behalf of a putative class, against the Appellee. In his original complaint, Jenkins alleged class action federal discrimination claims on the basis of race and disability, as well as various state law claims brought in his individual capacity, including for defamation, negligence, assault, conversion, and false imprisonment. The district court granted Jenkins leave to file an Amended Complaint. Jenkins retained counsel, who then filed an Amended Complaint on behalf of Jenkins and the Appellant. In Count One of the Amended Complaint, Jenkins and the Appellant sought, as representatives of a putative class, a declaratory judgment that the Appellee's practice of requesting receipts from customers without probable cause of shoplifting is unlawful false imprisonment that is not protected by either the "Shopkeeper's Privilege" of Va. Code Section 8.01-226.9 or Va. Code Section 18.2-105.1.2, which provides that Virginia merchants are exempt from civil liability for claims of false imprisonment if probable cause exists for the detention and it lasts no more than an hour. Jenkins and the Appellant also sought individual damages for the same claim in Counts Two (Jenkins) and Eight (Appellant) (collectively with Count One, the "Shopkeeper's Privilege Claims"). Based on these allegations, the Appellant also brought several individual state-law tort claims against the Appellee for false imprisonment and negligence. On April 17, 2020, pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6), the Appellee moved to dismiss the Shopkeeper's Privilege Claims, Jenkins' defamation and negligence claims, and both of the Appellant's tort claims. The district court granted the Appellee's motion to dismiss. Relevant here, the district court held that the Appellant's false imprisonment claim should be dismissed based on Va. Code Section 18.2-105.1. The district court determined that, as a matter of law, the Appellant's allegations demonstrated that the Appellee's employees had probable cause to believe the Appellant was shoplifting due to his refusal to produce a receipt for the items in his shopping cart. The Appellant also failed to allege that he was detained for an hour or more. The district court also dismissed the Shopkeeper's Privilege Claims. Jenkins and the Appellant argued that Va. Code Section 18.2-105.1 combined with Va. Code Section 8.01-226.9 implied a cause of action for a statutory tort the Appellant called "unlawful detention," Jenkins v. Wal-Mart Stores, Inc., No. 2:19-cv-00271 (E.D. Va. May 23, 2019; filed May 1, 2020). But the district court determined that those laws do not expressly provide a right of action against a retailer and no such right of action has been recognized by Virginia courts. Rather, the district court held that Virginia's Shopkeeper's Privilege laws establish only a defense for the Appellee and other merchants against recognize torts, such as false imprisonment or negligence, and demarcate the limits of that defense. Accordingly, the district court dismissed both Jenkins' and the Appellant's individual damages claims and their request for declaratory judgment. The Appellant filed this timely appeal. The Court of Appeals finds that the Appellant failed to state a claim for false imprisonment because he failed to allege that the employees placed him under a reasonable apprehension that force would be used against him if he tried to leave the store. The Appellant has not alleged that Wheeler ever physically prevented him from leaving the store, that she threatened to restrain him if he tried to leave, or that she told him he was not free to go. The Amended Complaint alleges only that Wheeler asked to see the Appellant's receipt and, while doing so, held on to the Appellant's shopping cart. Objectively, a mere request to see a receipt could not have made the Appellant reasonably afraid that he would be forcibly restrained if he tried to leave. The Appellant's allegations against Shelton fail for similar reasons. In any event, even if the Appellant successfully stated a claim for false imprisonment, his allegations nonetheless fall within the scope of Virginia's Shopkeeper's Privilege, the Court of Appeals points out. First, the Appellant failed to allege that he was detained for more than an hour before the arrival of a law enforcement officer. Second, the Appellant's allegations underscore that the store employees had probable cause to believe he had shoplifted and that the employees acted as ordinarily prudent people would have acted under the circumstances. The Appellant's failure to produce a receipt for items he was attempting to carry out of the store constitutes probable cause, and any "ordinarily prudent person" would have sought to prevent a cart of potentially stolen goods from leaving the store. In essence, the Appellee gave the Appellant three choices: he could have produced a receipt and left; he could have abandoned the shopping cart items and left; or he could have done neither and stayed. But having a choice between staying put and leaving without the items in a shopping cart simply does not rise to the level of forced confinement, the Court of Appeals says. Along with his claim of false imprisonment, the Appellant sought a declaratory judgment that the Appellee's alleged practice of requiring individuals to show their receipt before leaving a store, without probable cause, is unlawful because it violates Va. Code Section 18.2-105.1, one of Virginia's Shopkeeper's Privilege laws. The Appellant also brought a substantive claim for damages under the same Shopkeeper's Privilege theory. The Appellant now appeals to the dismissal of only the declaratory judgment claim, not his damages claim. The district court determined that while Section 18.2-105.1 protects merchants from civil liability within certain limits, it does not provide a private right of action for the breach of those limits. Therefore, because the Appellant failed to plead a substantive tort under Virginia law, the district court properly dismissed the Appellant's damages claim and did not abuse its discretion when it declined, on a class-wide basis, to issue declaratory judgments to create a new civil remedy that has not been previously recognized by Virginia courts. On appeal, the Appellant attempts to recast his claim as one seeking a declaratory judgment as to whether the Appellee's alleged practice of requesting receipts, in the abstract, constitutes false imprisonment. However, for the reasons discussed here, the Court of Appeals holds that the Appellant failed to state a claim for false imprisonment. Because the Appellant's false imprisonment claim fails on its merits, any associated claim for declaratory relief must fail with it. Therefore, the Court of Appeals holds that the district court did not abuse its discretion in prohibiting the Appellant from pursuing relief on behalf of a class after dismissing the Appellant's underlying substantive claim. For these reasons, the Court of Appeals affirms the district court's grant of the Appellee's motion to dismiss. The Court of Appeals dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. Affirmed. A full-text copy of the Court's Opinion dated Jan. 12, 2023, is available at https://tinyurl.com/6ecajj76 from Leagle.com. ON BRIEF: Gary M. Bowman -- gary@garymbowman.com -- in Roanoke, Virginia, for the Appellant. James E. Tysse -- jtysse@akingump.com -- Anthony T. Pierce -- apierce@akingump.com -- Nathan J. Oleson -- noleson@akingump.com -- Kristen E. Loveland -- kloveland@akingump.com -- AKIN GUMP STRAUSS HAUER & FELD LLP, in Washington, D.C., for the Appellee. WALMART INC: Ramos Wins Cross-Bid for Partial Judgment on Pleadings ------------------------------------------------------------------- In the lawsuit titled JACQUELINE RAMOS and EDWIN JOHNSON, individually and on behalf of all others similarly situated, Plaintiffs v. WALMART INC., Defendant, Case No. 2:21-cv-13827 (BRM) (AME) (D.N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey: (1) denies Walmart's Motion for Judgment on the Pleadings; and (2) grants the Plaintiffs' Cross-Motion for Partial Judgment on the Pleadings. Before the Court is Defendant Walmart Inc.'s Appeal of Magistrate Judge Andre M. Espinosa's July 29, 2022 Discovery Order, or in the alternative, Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c), which the Court construes as a Motion for Judgment on the Pleadings. Plaintiffs Jacqueline Ramos and Edwin Johnson, individually and on behalf of all others similarly situated filed a Response to Walmart's Motion and a Cross-Motion for Partial Judgment on the Pleadings. Walmart filed a Reply in Support of its Motion and Opposition to Plaintiffs' Cross-Motion for Partial Judgment on the Pleadings. The Plaintiffs bring this putative class action on behalf of applicants, who were denied employment at Walmart pursuant to the company's criminal history screening policies and practices. Specifically, Count Three of the Plaintiffs' Second Amended Complaint challenges Walmart's consideration of criminal convictions unrelated to an applicant's suitability for employment, which they allege is prohibited by the Criminal History Record Information Act ("CHRIA"), 18 Pa. C.S.A. Section 9125(b). CHRIA does not contain a statute of limitations period. The issue of the applicable statute of limitations to the Plaintiffs' CHRIA cause of action arose in the context of the parties' discussions regarding the relevant time period for discovery. The parties failed to reach an agreement on the period governing the claim and raised the issue before the Honorable Andre M. Espinosa, U.S.M.J. in an April 26, 2022 discovery dispute letter, seeking guidance on the appropriate scope of discovery. In a July 29, 2022 Discovery Order, Judge Espinosa left the ultimate question of the limitations period applicable to the claims brought under the CHRIA unresolved, and found only the Plaintiffs have made a sufficient demonstration that, given the colorable possibility that a six-year statute of limitations may apply, they were entitled to discovery on the CHRIA claim consistent with that limitations period. On Aug. 12, 2022, Walmart filed an appeal of Judge Espinosa's Order, or in the alternative, a Motion for Judgment on the Pleadings, which the Court construes as a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). On Aug. 30, 2022, the Plaintiffs filed a Response and Cross-Motion for Partial Judgment on the Pleadings. On Sept. 26, 2022, Walmart filed a Reply in Support of its Motion and Opposition to the Plaintiffs' Cross-Motion for Partial Judgment on the Pleadings. Walmart argues the Court should apply a two-year statute of limitations period to the Plaintiffs' CHRIA claim because the action closely resembles an action sounding in tort, and so the two-year catch-all period for tortious conduct, 42 Pa. C.S.A. Section 5524(7), should apply. Walmart asks the Court to enter partial judgment on the pleadings in its favor and to instruct Judge Espinosa to revise the Discovery Order accordingly. The Plaintiffs argue the Court should apply Pennsylvania's uniform, the catch-all six-year statute of limitations period under 42 Pa. C.S.A. Section 5527(b), and enter partial judgment in their favor, because their CHRIA claim is "heterogenous" and cannot clearly be characterized as simply sounding in tort. The Court agrees with the Plaintiffs. Neither party disputes that the CHRIA does not contain a statute of limitations period or that there is no binding precedent directly on point. Accordingly, the Court must predict which statute of limitations period the Pennsylvania Supreme Court would apply. Walmart contends Taha v. Bucks Cnty. Pennsylvania, 367 F.Supp.3d 320 (E.D. Pa. 2019), was wrongfully decided and challenges the Court's finding that the CHRIA is "multifarious" in nature. Instead, Walmart claims the various provisions of the CHRIA all sound in tort, and none in contract, so the mere fact that the statute creates multiple causes of action is not dispositive. The Plaintiffs disagree, arguing Taha is the only case that directly and substantively analyzes which statute of limitations governs the CHRIA and that it was correctly decided, as numerous causes of action are contained within the statute that bears no resemblance to a tort. The Court agrees with the Plaintiffs, and for the same reasons articulated in Taha and Gabriel v. O'Hara, 534 A.2d 488 (1987), applies the six-year catch-all statute of limitations. The Court predicts the Pennsylvania Supreme Court, if or when confronted with this issue, would be likely to follow the reasoning in Taha and Gabriel. Accordingly, the Court concludes a six-year statute of limitations period applies to the Plaintiffs' claims under the CHRIA and therefore, denies the Defendant's Motion for Partial Judgment on the Pleadings and grants the Plaintiffs' Cross-Motion for Partial Judgment on the Pleadings, specifically as to the statute of limitations issue. Accordingly, and for good cause appearing, Walmart's Motion for Partial Judgment on the Pleadings is denied and the Plaintiffs' Cross-Motion for Partial Judgment on the Pleadings is granted. A full-text copy of the Court's Opinion dated Jan. 12, 2023, is available at https://tinyurl.com/2w6t76at from Leagle.com. Asbestos Litigation ASBESTOS UPDATE: Suit Claims Zurich Purposely Stalling Libby Cases ------------------------------------------------------------------ Darrell Ehrlick, writing for dailymontanan.com, reports that just weeks after a Cascade County Judge agreed with a jury that the insurance company that represented a Libby asbestos mine should pay a former miner there $36.5 million, attorneys for that miner filed a complaint in federal court, claiming that Zurich American Insurance Company systematically stalled and dragged out court proceedings in an attempt to force him into settling the lawsuit before other asbestos cases are tried. Ralph V. Hutt won a jury trial that found that Zurich, which bought Maryland Casualty Company, had a duty to warn miners and those working at the Libby, Montana, plant about the dangers of asbestos, produced or "popped" from the mineral vermiculite, which was mined there. The jury awarded Hutt $6.5 million for damages, including healthcare he'll need. He is currently homebound, suffering the effects of lung diseases likely produced by the asbestos fibers that scar lungs and can cause cancer. The jury also added an additional $30 million for the insurance company conspiring with W.R. Grace and Company, the Libby mining company, to conceal the danger and damages that happened as a result of being exposed to the mineral. In the lawsuit, filed in U.S. District Court in Great Falls, Hutt's attorneys, Clifford, Christopher and John Edwards of Edwards and Culver in Billings, Mont., outline the actions Zurich took to ignore Hutt's claim in an attempt to delay payments or force him to settle for a much lesser amount. In the suit, Hutt claims that Zurich is making more money on profits and interest than what it will end up paying to Hutt and any other Libby residents who follow. The concept is called "opportunistic breach" meaning that the "profit Zurich makes on withheld settlement payments to Hutt and other Libby Asbestos Claimants exceeds what it will pay on these insurance claims." "It is profitable for Zurich to breach its claim settlement duties and thereby increase the time over which it can generate income on money owed to them," the suit alleges. The strategy, outlined in court filings, said that Zurich appeared to want to continue litigating Hutt's case nearly indefinitely because he was the first, or bellwether case. Because his case was so convincing, the attorney Clifford Edwards argues that Zurich had the desire to make sure justice – and payments – were delayed, in part to discourage other claims. "Specifically Zurich used leveraging designed to exploit Hutt's vulnerable position through withheld medical expense and low-ball offers," the suit said. Representatives from Zurich declined comment on the case for this story. The lawsuit claims Zurich had plenty of reason to delay a settlement or drag out court proceedings: If Hutt's case was successful, it would establish a precedent for similar cases, and a court record replete with facts and documents. While Hutt went through several years of litigation, Zurich denied claims, including support for basic healthcare service, for example, supplemental oxygen. Part of the case is buttressed by a decision by the Montana State Supreme Court last year when the state's highest court determined that Maryland Casualty had breached its duty in a scathing rebuke from Chief Justice Mike McGrath: "Maryland Casualty Company was not merely negligent in its failure to act; rather, in strategically recognizing the latency period for asbestosis to develop, MCC engaged in affirmative actions to conceal the asbestos exposure risk and worker injuries to avoid liability, effectively increasing the risk of additional harm to mill workers from further asbestos exposure." The suit claimed by playing a sort of legal hardball with Hutt, that Zurich could be lessening liability. Because Hutt's case was the first of its type, if Hutt had settled, it would have likely left Zurich in a better bargaining position for other cases. This created a high-stakes game in court while Hutt struggled to get out of the house because of his advanced lung disease likely caused by asbestos exposure, court documents said. "At an average annual rate of return in excess of 11%, Zurich has earned hundreds of millions of dollars on the Libby asbestos claim reserves for fully accrued clear liability claims over the past 20 years of litigation," the suit said. "Even if Zurich were to pay the claims of Hutt and all other Libby Asbestos Claimants in the amount of their verdicts and judgments, the delay nets Zurich more in profit than it will pay." Clifford Edwards argues in the court documents that the delay isn't just a matter of not paying those injured or a legal controversy. "Because Hutt and similarly situated Libby Asbestos Claimants require the settlement money to pay for medical expenses, to otherwise address the harm arising from their asbestos injuries, and to secure a just resolution within their lifetimes, Zurich's commodity profit scheme literally makes profit a function of human suffering." ********* 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. 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