/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230228.mbx C L A S S A C T I O N R E P O R T E R Tuesday, February 28, 2023, Vol. 25, No. 43 Headlines A. FISHMAN & SON: Dawkins Files ADA Suit in E.D. New York ABBOTT LABORATORIES: Court Narrows Claims in LeGrand Class Suit AGRESERVES INC: Rivera Files Suit in Cal. Super. Ct. AIL HOSPITALITY: Fails to Pay Proper Wages, Bordner Suit Alleges ALBUQUERQUE, NM: Appeals Court Reverses Dismissal of Martens Suit ALLIED WASTE: Filing of Class Status Bid Extended to May 8 ALMO CORPORATION: Johnson Sues Over Unpaid Overtime Compensation AMC ENTERTAINMENT: Pension Fund Files Suit Over Dilution Claims AMERICAN NATIONAL: Steen Seeks to Certify Policy Owner Class ASPYR LLC: Martinez Files Suit in Cal. Super. Ct. AYVAZ PIZZA: Echeverria Sues Over Failure to Pay Minimum Wages B. BOYS INC: Rodriguez Files ADA Suit in E.D. New York BANK OF NEW YORK: Third Amended Case Management Order Entered BARNARD CONSTRUCTION: Scheduling Order Entered in Gonzalez Suit BEYOND MEAT: Zakinov Suit Transferred to N.D. Illinois BLACKBIRDS BROOKLYN: Rodriguez Files ADA Suit in E.D. New York BLUE CROSS: New Mexico Court Denies Bid to Remand Graham Class Suit BLUE KNIGHT: Fails to Pay Security Guards' OT Wages, Sanchez Says BON APPETIT: Nordman Wage-and-Hour Suit Removed to N.D. Cal. BRANDEIS UNIVERSITY: Omori, et al., Seek to Certify Classes BRANDON RENTAL: Klyn Sues to Recover Unpaid Overtime Compensation BRASS AND BURL: Jackson Files ADA Suit in S.D. New York BREADBERRY INC: Can Compel Arbitration in Calderon Labor Class Suit BUDDI US: Scheduling Order Entered in S.C. Class Action CALIFORNIA: Blake, et al., Seek to Certify Class CASH ADVANCE: Appeal From Arbitration Denial in Stanton Suit Tossed CASH EXPRESS: Fails to Provide Proper OT Pay, Lumpkin et al. Claim CENTRASTATE HEALTHCARE: Faces Class Action Following Cyberattack CGS STORES: Joint Bid to Certify Conditional Class OK'd CHARLES SCHWAB: Wins Bid to Compel Arbitration CHRISTIAN DIOR: Judge Tosses Biometrics Privacy Class Action Suit CHRISTOPHER WRAY: Brewer Files Suit in D. Columbia CIRCLE K: McDonald Suit Remanded to California State Court CNG RESTAURANTS: Underpays Servers & Bartenders, Murphy Claims COCA-COLA CO: Class Action Over Fanta "100% Natural" Claims Tossed CONAGRA BRANDS: Richburg and Ruiz Suits Dismissed With Prejudice CONAGRA BRANDS: Settlement Claims Filing Deadline Set on May 22 CORECIVIC INC: Modifications of Scheduling Order Sought CORIZON INC: Denial of Kensu's Bid for Relief From Judgment Upheld CROSSCOUNTRY MORTGAGE: Case Management Order Entered in Johnstone CSX TRANS: Seeks to Expedite Ruling on Class Cert Postponement CVI SGP: Cotte Seeks to Certify Settlement Classes DEPARTMENT OF HUMAN SERVICE: Chairse Suit Removed to D. Minnesota DERMSTORE LLC: Zagury Suit Removed to S.D. Florida DMCG INC: Fails to Pay Proper Wages, Barraza-Benitez Suit Alleges DOLLAR GENERAL: Wright Suit Removed to M.D. Georgia DOLLAR TREE: Dalton Files ADA Suit in D. Minnesota DOORDASH INC: Silva Sues Over Delivery Drivers' Unpaid Overtime ELAP SERVICES: Must File Class Cert Bid Response by March 15 ESS TECH INC: Faces Budikiewicz Suit Over Drop in Share Price FINANCIAL ASSISTANCE: Kitchen Files FDCPA Suit in S.D. Texas FINWISE BANCORP: Caban Sues Over Unlawful Collection Practices FLORISSANT, MO: Rogers' Report and Testimony Excluded in Baker FRESHWORKS INC: Scott+Scott Named Lead Counsel in Sundaram Suit GATEWAY GENOMICS: Muse Telemarketing Suit Removed to M.D. Fla. GEISINGER HEALTH: Wins Summary Judgment on McWilliams' Return Claim GENWORTH LIFE: Settlement With Lang Objectors in Haney Suit OK'd GOLDEN STAR: Mejia Sues Over Unpaid Minimum and Overtime Wages GOLDEN STATE FC: Court Sets Class Certification Deadlines GREAT WOLF RESORTS: Faces Augustine Suit Over Wiretapping Violation GREENBOX LOAN: Fails to Pay Proper Wages, Davis Suit Alleges GROUNDHOG ENTERPRISES: Maxine Furs Files Suit in N.D. California HABERFELDE FORD: Morris Files Suit in Cal. Super. Ct. HARBOR FREIGHT: Allowed to Seal Opposition to Comes Class Cert Bid HARBOR FREIGHT: Hearing on Bid to Exclude Expert Set for March 15 HARLEY-DAVIDSON MOTOR: Heymer Suit Transferred to E.D. Wisconsin HERITAGE PROVIDER: Fails to Secure Customers' Info, Abedi Says HEXO CORP: Fasken Discusses Securities Class Action Ruling HRONIS INC: Armenta Files Suit in Cal. Super. Ct. IDEAL HOME HEALTH: Calderon Sues Over Unpaid Overtime Compensation INLAND RESTORATION: Sued Over Failure to Pay Proper OT Compensation JILL ACQUISITION: Serrieh Labor Class Suit Removed to E.D. Cal. JOHN KASICH: Wins Summary Judgment Bid vs Ball KASTRIOT INC: Leon Sues Over Unpaid Minimum and Overtime Wages KEYBANK NATIONAL: Brouty Suit Transferred to N.D. Georgia KEYBANK NATIONAL: Pittman Suit Transferred to N.D. Georgia LASHIFY INC: Adams Suit Removed to M.D. Florida LEPRINO FOODS: Loses Renewed Bid to Decertify Class in Vasquez Suit LEVEL 3: Seeks More Response Time to Conditional Class Cert Bid LINDT & SPRUNGLI: Gralia Sues Over Harmful Chocolate Products LINDT & SPRUNGLI: Sued Over Unsafe Chocolate Products M & M: Fails to Pay Tire Technicians' Minimum, OT Wages Under FLSA MARRIOTT HOTEL: Conditional Cert of Collective Action Sought MASTERCARD INC: May Face Class Suit Over Illegal Interchange Fees MATTERPORT INC: Pretrial Conference in Lynch Set for Dec. 6 MDL 2903: Bid to Dismiss Alfaro's Unsafe Sleeper Class Suit Denied MDL 2936: Court Suggests Remand of DJ Action to E.D. Louisiana MDL 3014: Dobbs v. Aerocare Transferred to W.D. Pa. MDL 3044: MSP Recovery v. Exactech Inc. Transferred to E.D. N.Y. MDL 3047: Youngers v. Meta Platforms Transferred to N.D. Cal. MDL 3055: Nine Data Breach Suits Consolidated in D.N.J. MDL 3056: 6 Data Breach Suits Transferred to N.D. Ga. MDL 3058: Credit Reporting Litigation Denied Transfer to N.D. Ill. MERCEDES-BENZ USA: Bolling Sues Over Defective Panoramic Sunroof MICHIGAN: Boussum Complaint v. Washington Dismissed w/o Prejudice MIDLAND CREDIT: Limas Sues Over Disclosure of Personal Information MOGA TRANSPORT: Benitez Files Suit in Cal. Super. Ct. MOL EUROPE: CAT Restricts Communications With Class Members MOUNTAIN LAKES: Court Denies B.L.'s Bid to Proceed Under Pseudonyms NATIONAL FREIGHT: Bid to Decertify Class in Portillo Suit Denied NATIONWIDE CREDIT: Khaimov Sues Over Deceptive Collection Letters NATIONWIDE MUTUAL: Wins Bid to Seal Arbitration Ruling in Bush Suit NIRMAL LC: Fails to Pay Technicians' Proper Wages, Herrera Claims NORFOLK SOUTHERN: Faces Canterburry Suit Over Chemical Spill PARRY'S PIZZA VI: Fails to Pay Proper Wages, Domowicz Alleges PEABODY ENERGY: $1.16MM in Attys. Fees Awarded in Securities Suit PEABODY ENERGY: Final Order & Judgment Entered in Securities Suit PEABODY ENERGY: Plan of Allocation in Securities Suit Approved PLDT INC: Bids for Lead Plaintiff Appointment Due April 3 PRISMA LABS: Faces Class Action Over Lensa "Magic Avatar" Feature PROPERTY SERVICES: Faces Scott Suit Over Telephonic Sales Calls PROTECH INSTALLATIONS: Fails to Pay Proper Wages, Henderson Says REAL TIME: Uniform Pretrial Scheduling Order Entered in Jones REGAL MEDICAL: Austin Sues Over Security Incident and Data Breach REGAL MEDICAL: Fails to Secure Customers' Info, Valentine Says S.O.S. MAINTENANCE: Jimenez Sues Over Unpaid Overtime Wages SA HOSPITALITY: Rodriguez Files ADA Suit in E.D. New York SAFE HAVEN: Faces Jackson Suit Over Technicians' Unpaid Overtime SAIRAM FOOD: Gonzalez Sues Over Unpaid Minimum, Overtime Wages SANDORA CAPITAL: Parrilla Sues Over Unsolicited Telephone Calls SECURITAS SECURITY: Ulloa Files Suit in Cal. Super. Ct. SILVERGATE BANK: Faces Bhatia Suit Over Cryptocurrency Scheme SIXT RENT A CAR: Lopez Files Suit in S.D. Florida SONY INTERACTIVE: Bid to Dismiss Caccuri Class Complaint Denied SUR LA TABLE: Court Grants Chen Leave to Amend Consumer Suit SURMODICS INC: Rosen Law Investigates Potential Securities Claims TARGET CORP: Wiretaps Electronic Communications, Calderon Claims TESLA INC: To Appeal Verdict in Shareholder Class Action TIMBERLINE CONSTRUCTION: Fails to Pay Proper Wages, Guerrero Says TRANSUNION LLC: Wilson Sues Over Illegal Selling of Personal Info TUSIMPLE HOLDINGS: Woldanski Suit Transferred to S.D. California UCOR LLC: Speer Suit Seeks to Stay Class Certification Briefing UNITED STATES: Bassen Files Suit in S.D. New York UNITED STATES: Scheduling Order Entered in Jimenez Class Suit VERTAFORE INC: Court Dismisses Claims in Mulvey Suit With Prejudice VICTORIA'S SECRET: Fails to Pay Proper Wages, Harman Suit Alleges VISAGE SCREEN-PRINT: Fails to Pay Proper Wages, Garcia Alleges VISION SOLAR: Bid to Toss Landy TCPA Suit Dismissed W/o Prejudice VOLUNTEERS OF AMERICA: Thompson Seeks Caregivers' Unpaid Overtime WHITE CASTLE: Ogletree Deakins Discuss BIPA Class Action Ruling WINK BROW BAR: Dawkins Files ADA Suit in E.D. New York ZEN RAMEN AND SUSHI: Dawkins Files ADA Suit in E.D. New York [*] 2023 Class Action Money & Ethics Conference - Register Now! [*] UK Law Firms Earned GBP-1B From U.S.-Style Class Action Suits ********* A. FISHMAN & SON: Dawkins Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against A. Fishman & Son Jewelry, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. A. Fishman & Son Jewelry, Inc., Case No. 1:23-cv-01191 (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. A. Fishman & Son -- https://www.afishman.com/ -- is a direct importer, cutter and manufacturer of loose diamonds.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ABBOTT LABORATORIES: Court Narrows Claims in LeGrand Class Suit --------------------------------------------------------------- In the case, CONDALISA LEGRAND, et al., Plaintiffs v. ABBOTT LABORATORIES, Defendant, Case No. 22-cv-05815-TSH (N.D. Cal.), Judge Thomas S. Hixon of the U.S. District Court for the Northern District of California grants in part and denies in part the Abbott's Motion to Dismiss. Abbott is an Illinois corporation with its principal place of business in Abbott Park, Illinois. It sells a line of "nutrition" drinks under the "Ensure" brand, including Ensure Original Nutrition Shake, Ensure Complete Nutrition Shake, Ensure Enlive Advanced Nutrition Shake, Ensure Compact Therapeutic Nutrition Shake, Ensure Clear Nutrition Drink, and Ensure Original Nutrition Powder. Abbott markets the Ensure Nutrition Drinks with health and wellness labeling, such as "#1 Doctor Recommended Brand," and "Complete, Balanced Nutrition for everyday health." It sells Ensure Nutrition Drink on a nationwide basis, including in New York and California, and did so for the four years prior to filing of the instant action. LeGrand is a California resident, and Larissa Bates is a New York resident. She purchased the Ensure Original Nutrition Shake at different times in California in the four years prior to filing the Complaint. Bates purchased Ensure Complete Nutrition Shakes in New York in the four years preceding filing. In purchasing the Ensure Nutrition Drinks, both Plaintiffs were exposed to, and relied on, Abbott's label representations, such as that the products were "Doctor Recommended" and "nutrition shakes." There is a vast body of scientific evidence demonstrating that consuming sugar-sweetened beverages harms, rather than supports, overall health. Abbott adds up to 22 grams of sugar per serving to the Ensure Nutrition Drinks. As a result of this sugar content and scientific evidence, the Plaintiffs allege that the labeling on Ensure Nutrition Drinks advertising them as balanced, nutritious, and healthy is false and misleading. The Plaintiffs filed the instant action on Oct. 6, 2022, seeking to bring a class action under Rule 23 on behalf of themselves and other consumers who bought Ensure Nutrition Drinks. They define members of a nationwide class, as well as California and New York subclasses, as "all persons in the United States, and subclasses of all persons in California and in New York, who, at any time from four years preceding the date of the filing of this Complaint to the time a class is notified (the 'Class Period'), purchased, for person or household use, and not for resale or distribution, any of the Ensure Nutrition Drinks (the 'Class')." The Plaintiffs bring the following causes of action: 1) violation of the Unfair Competition Law ("UCL") (California subclass); 2) violation of the False Advertising Law ("FAL") (California subclass); 3) violation of the Consumer Legal Remedies Act ("CLRA") (California subclass); 4) breach of Express Warranties under Cal. Com. Code Section 2313(1) (California subclass); 5) breach of Implied Warranty of Merchantability under Cal. Com. Code Section 2314 (California subclass); 6) violation of N.Y. Gen. Bus. L. Section 349 (New York subclass); 7) violation of N.Y. Gen. Bus. L. Section 350 (New York subclass); 8) Unjust Enrichment; 9) Negligent Misrepresentation; and 10) Intentional Misrepresentation. On Dec. 12, 2022, Abbott filed the present Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6). On Dec. 27, 2022, the Plaintiffs filed an opposition. On Jan. 6, 2023, Abbott filed a reply. First, Abbott argues that the Court lacks general or specific jurisdiction over Abbott as to New York resident Bates' claims. Bates does not allege general jurisdiction but argues that the Court has specific jurisdiction over Abbott because this is a class action suit, or, alternatively, that the Court should exercise pendent personal jurisdiction. Bates does not argue, nor does it appear as though, her claims against Abbott arise out of or relate to Abbott's California activities. Judge Hixon concludes she has not made a showing of personal jurisdiction over Abbott as to her claims. Alternatively, he concludes that given the current state of the caselaw in this district, he declines to exercise pendent personal jurisdiction over Bates' claims. Therefore, Judge Hixon grants Abbott's Motion to Dismiss Bates' claims pursuant to Rule 12(b)(2). Because he finds the Court lacks personal jurisdiction, he declines to address Abbott's other arguments for dismissal of Bates' claims. He grants leave to amend the Complaint, should Bates have claims pursuant to federal questions. Second, Abbott moves to dismiss the Plaintiffs' five causes of action under statutes related to false advertising, specifically California's FAL, UCL, and CLRA and New York's False Advertising and Unfair and Deceptive Business Practices statutes, on multiple bases, including that the alleged false advertising statements are not misleading as a matter of law, that federal law preempts certain challenged statements from being found to be false advertising, that the pleadings are insufficient under Rule 9(b), and that LeGrand lacks statutory standing for products she did not purchase. Judge Hixon finds that (i) all the relevant products contain added sugar in harmful amounts, the key ingredient underpinning LeGrand's false advertising claim; (ii) LeGrand may not rely upon these statements to argue that the advertising for Ensure products is misleading because it suggests the products are healthy despite unhealthy added sugar; and (iii) disclosure of sugar content on a label necessarily precludes a claim alleging advertising promoting a product as healthy is misleading because of the harmful amounts of added sugar in the product. Based on the facts pled and drawing all inferences, Judge Hixon finds plausible that a significant portion of consumers, acting reasonably in the circumstances, could be misled by Ensure Nutrition Drinks' advertising statements. Judge Hixon further finds LeGrand sets forth more than the neutral facts necessary to identify the transaction" as well as "what is false or misleading about a statement, and why it is false. Accordingly, he denies Abbott's Motion to Dismiss the false advertising claims brought under California law. Judge Hixon also denies Abbott's Motion to Dismiss the express warranty claim. As LeGrand's consumer protection claims are sufficient to state a claim under the reasonable consumer standard, they are likewise sufficient to state a claim for breach of express warranty. Lastly, Judge Hixon denies Abbott's Motion to Dismiss the unjust enrichment claim. He finds that LeGrand alleges the same misrepresentations that underlie her other claims, and thus she has sufficiently pled unjust enrichment. For the reasons he stated, Judge Hixon grants in part and denies in part Abbott's Motion to Dismiss. He grants dismissal of the causes of action based on violation of N.Y. Gen. Bus. L. Section 349, violation of N.Y. Gen. Bus. L. Section 350, Unjust Enrichment under New York law, Negligent Misrepresentation under New York law, and Intentional Misrepresentation under New York law. Judge Hixon grants in part dismissal of claims brought based on violation of UCL, FAL, and CLRA, breach of Express Warranties under Cal. Com. Code Section 2313(1), Implied Warranty of Merchantability under Cal. Com. Code Section 2314, Unjust Enrichment under California law, Negligent Misrepresentation under California law, and Intentional Misrepresentation under California law (1) to the extent those claims rely on statements that the Court has determined are preempted nutrient content claims, as discussed above, and (2) to the extent those claims rely on the statement "Discover More at Ensure.Com," and otherwise denies dismissal of those claims. Finally, Judge Hixon grants the Plaintiffs leave to amend. The Plaintiffs may file a First Amended Complaint within 30 days of the date of his Order. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/244mrmbf from Leagle.com. AGRESERVES INC: Rivera Files Suit in Cal. Super. Ct. ---------------------------------------------------- A class action lawsuit has been filed against Agreserves, Inc. The case is styled as Carlos Marin Rivera, individually, and on behalf of other members of the general public similarly situated v. Agreserves, Inc., Case No. BCV-23-100439 (Cal. Super. Ct., Kern Cty., Feb. 14, 2023). The case type is stated as "Other Employment - Civil Unlimited." AgReserves, Inc. -- https://www.agreserves.com/ -- operates investment farms. The Company through its subsidiaries produces potatoes and sweet corn for the food processing industry.[BN] AIL HOSPITALITY: Fails to Pay Proper Wages, Bordner Suit Alleges ---------------------------------------------------------------- ROBERT BORDNER, individually and on behalf of all others similarly situated, Plaintiff v. AIL HOSPITALITY, LLC d/b/a AIL HOSPITALITY GROUP; LUDLOW STREET, LLC d/b/a DAYS INN BY WYNDHAM; EASTWOOD DRIVE, INC. d/b/a RAMADA BY WYNDHAM; SAMEER AILAWADI; and MIGUEL GONZALEZ, Defendants, Case No. 1:23-cv-00033 (W.D. Pa., Feb. 14, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Bordner was employed by the Defendant as maintenance technician. AIL HOSPITALITY LLC was founded in 2015. The company's line of business includes operating public hotels and motels. [BN] The Plaintiff is represented by: Derrek W. Cummings, Esq. Larry A. Weisberg, Esq. Michael J. Bradley, Esq. Steve T. Mahan, Esq. WEISBERG CUMMINGS P.C. 2704 Commerce Drive, Suite B Harrisburg, PA 17110 Telephone: (717) 238-5707 Facsimile: (717) 233-8133 Email: smahan@weisbergcummings.com dcummings@weisbergcummings.com lweisberg@weisbergcummings.com mbradley@weisbergcummings.com ALBUQUERQUE, NM: Appeals Court Reverses Dismissal of Martens Suit ----------------------------------------------------------------- In the case, JOHN MARTENS and PAT MARTENS, Individually and as Co-Personal Representatives of the ESTATE OF V.M., Plaintiffs-Appellants v. CITY OF ALBUQUERQUE, JOHN DOES 1-10, and JANE DOES 1-10, Individually, Defendants-Appellees, Case No. A-1-CA-39614 (N.M. App.), the Court of Appeals of New Mexico reverses the district court's dismissal of the Plaintiffs' complaint against the City of Albuquerque. Plaintiffs John and Pat Martens, individually and on behalf of the Estate of V.M., appeal the district court's dismissal of their complaint against the City for violations of the New Mexico Tort Claims Act (TCA), NMSA 1978, Sections 41-4-1 to -27 (1976, as amended through 2020). The district court concluded that the Plaintiffs' written notice did not comply with Section 41-4-16(A) of the TCA, which requires persons who claim damages under the TCA to provide a written notice stating the time, place and circumstances of the loss or injury. In 2016, the Plaintiffs sent a "Notice of Claims Resulting in Injury/Death Per Section 41-4-16" to the Bernalillo County Clerk, the Risk Management Division, and the Mayor of the City of Albuquerque. The City, in relevant part, responded, regarding the claim against the City of Albuquerque, it was determined that subsequent to a murder investigation by the Albuquerque Police Department (APD), the manner in which the crime was investigated was appropriate and in accordance with departmental policies and procedures. The Plaintiffs subsequently filed a complaint and alleged that the City, APD, and unknown officers were negligent in failing to investigate a referral made by CYFD that arose from an incident before V.M. was killed. After significant litigation, the district court dismissed the complaint based on lack of written and actual notice of the claim as required by the TCA under Section 41-4-16. This appeal followed. The City contends that the Plaintiffs waived any challenge to the sufficiency of the evidence supporting the district court's dismissal and that they failed to establish written and actual notice. The Plaintiffs, however, do not appear to challenge the evidence and have explicitly abandoned any challenge to the actual notice ruling. Instead, they argue solely that the contents of the Notice satisfied the Section 41-4-16(A) written notice requirement. Therefore, the Court of Appeals limits its analysis accordingly. It concludes that the Notice provided the City with the information necessary to investigate its involvement with the circumstances leading to V.M.'s injuries and death. The written Notice satisfied the requirements of Section 41-4-16(A). It therefore reverses the district court and remands for further proceedings. A full-text copy of the Court's Feb. 7, 2023 Opinion is available at https://tinyurl.com/2p83e2va from Leagle.com. Bowles Law Firm, Jason Bowles, Albuquerque, NM. Gorence Law Firm, LLC, Robert J. Gorence -- INFO@GOLAW.US -- Albuquerque, NM, for the Appellants. Lauren Keefe, City Attorney, Stephanie M. Griffin, Deputy City Attorney, Albuquerque, NM, for Appellee City of Albuquerque. ALLIED WASTE: Filing of Class Status Bid Extended to May 8 ---------------------------------------------------------- In the class action lawsuit captioned as KEILA CROSS, in behalf of herself and all others similarly situated, v. ALLIED WASTE SERVICES OF NORTH AMERICA, LLC, D/B/A REPUBLIC SERVICES, Case No. 9:21-cv-00145-SEH (D. Utah), the Hon. Judge Sam E. Haddon entered an order granting the Parties joint motion for extension of time: -- The Parties shall have to and including April 24, 2023, in which to conduct discovery on issues relevant to Cross's motion for class certification. -- Cross shall have to and including May 8, 2023, in which to file an appropriate motion for class certification and supporting brief. -- Republic shall have to and including June 9, 2023, in which to file a response brief in opposition to a class certification. -- A reply brief from Cross will be due on or before June 23, 2023. Allied Waste provides non-hazardous solid waste management services. A copy of the Court's order dated Jan 31, 2023 is available from PacerMonitor.com at https://bit.ly/3Yxe0DA at no extra charge.[CC] ALMO CORPORATION: Johnson Sues Over Unpaid Overtime Compensation ---------------------------------------------------------------- Randolph Johnson, on behalf of himself and all others similarly situated v. ALMO CORPORATION and ALMO DISTRIBUTING WISCONSIN, INC., Case No. 2:23-cv-00207-LA (E.D. Wis., Feb. 14, 2023), is brought pursuant to the Fair Labor Standards Act of 1938, and Wisconsin's Wage Payment and Collection Laws ("WWPCL") by Plaintiff for purposes of obtaining relief under the FLSA and WWPCL for unpaid overtime compensation, unpaid agreed upon wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. The Defendants operated an unlawful compensation system that deprived and failed to compensate the Plaintiff for all hours worked and work performed each workweek, including at an overtime rate of pay for each hour worked in excess of 40 hours in a workweek, by failing to include all forms of non-discretionary compensation, such as monetary bonuses, incentives, awards, and/or other rewards and payments, in said employees' regular rates of pay for overtime calculation purposes, in violation of the FLSA and WWPCL. The Defendants' failure to compensate its hourly paid, non-exempt employees at the correct, proper, and lawful overtime rate of pay each workweek was intentional, willful, and violated federal law as set forth in the FLSA and state law as set forth in the WWPCL, says the complaint. The Plaintiff was hired by the Defendants into the position of Lead working primarily at the Defendants' Mequon, Wisconsin location in August 2022. Almo Corporation is an appliance distributor that owns, operates, and manages physical locations and facilities throughout the United States, including but not limited to in the State of Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com AMC ENTERTAINMENT: Pension Fund Files Suit Over Dilution Claims --------------------------------------------------------------- Mike Leonard at Bloomberg News reports that AMC Entertainment Holdings Inc. is facing investor litigation over allegations it's using a complex corporate engineering scheme to wrongfully sideline small retail investors who flocked to the company in a "meme stock" frenzy at the height of the pandemic. A pension fund sued AMC and members of its board on Feb. 20, claiming they're illegally empowering holders of nearly a billion fractional preferred shares called "APEs" -- each worth 1/100th of a supervoting preferred share -- in an end run around investors' votes rebuffing their efforts to increase the class A share limit. [GN] AMERICAN NATIONAL: Steen Seeks to Certify Policy Owner Class ------------------------------------------------------------ In the class action lawsuit captioned as MYRA STEEN, Individually, and as successor-in-interest to JANICE WILLIAMS and on Behalf of the Class; JANET WILLIAMS, Individually, and on Behalf of the Class, v. AMERICAN NATIONAL INSURANCE COMPANY, a Texas Corporation, Case No. 2:20-cv-11226-ODW-SK (C.D. Cal.), the Plaintiffs ask the Court to enter an order: 1. certifying the case as a class action under Federal Rule of Civil Procedure 23. "All vested owners and beneficiaries of life insurance policies issued or delivered by Defendant in California before 2013, and which, after January 1, 2013, were lapsed or terminated for nonpayment of premium without Defendant first providing all the protections required by Insurance Code Sections 10113.71 and 10113.72." 2. Appointing Plaintiffs Myra Steen and Janet Williams as Class Representatives. 3. Appointing the law firms of Nicholas & Tomasevic, LLP and Winters & Associates as Class Counsel. In the action, the Plaintiffs allege that Defendant failed to comply with California Insurance Code sections 10113.71 and 10113.72. The Plaintiffs assert that class certification is appropriate under 11 Federal Rule of Civil Procedure 23(a) because: (1) the Class that Plaintiffs seek to certify is so numerous that joinder of all members is impracticable; (2) there are questions and answers of law or fact common to class members; (3) the claims of the representative Plaintiffs are typical of the claims of the Class they seek to represent; and (4) the representative Plaintiffs and their counsel will fairly and adequately protect 16 he interests of the proposed Class. The Plaintiffs also assert that certification is appropriate under Federal Rule of Civil 18 Procedure 23(b)(2) because Defendant has acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class members as a whole. American National is a group of companies writing a broad array of insurance products and services A copy of the Plaintiffs' motion to certify class dated Feb. 3, 2023 is available from PacerMonitor.com at https://bit.ly/3lQaYvL at no extra charge.[CC] The Plaintiffs are represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19 th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Jack B. Winters, Jr., Esq. Sarah Ball, Esq. WINTERS & ASSOCIATES 8489 La Mesa Boulevard La Mesa, CA 91942 Telephone: (619) 234-9000 Facsimile: (619) 750-0413 E-mail: jackbwinters@earthlink.net sball@einsurelaw.com ASPYR LLC: Martinez Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against ASPYR, LLC, et al. The case is styled as Sylvia Martinez, on behalf of all others similarly situated v. ASPYR, LLC, DHS1, LLC, Does 1-10, Case No. 34-2023-00334699-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Feb. 14, 2023). The case type is stated as "Other Employment – Civil Unlimited." Aspyr -- https://www.aspyr.com/ -- is a leading entertainment publisher that creates, packages and delivers fun to millions around the world.[BN] The Plaintiff is represented by: Kane Moon, Esq. MOON & YANG, APC 1055 W 7th St., Ste. 1880 Los Angeles, CA 90017-2529 Phone: 213-232-3128 Fax: 213-232-3125 Email: kane.moon@moonyanglaw.com AYVAZ PIZZA: Echeverria Sues Over Failure to Pay Minimum Wages -------------------------------------------------------------- Sherry Echeverria, on behalf of herself and those similarly situated v. AYVAZ PIZZA, LLC; PALO ALTO, INC.; SHOUKAT DHANANI; ROB ALVARADO; LINDA ALVARADO; DOE CORPORATION 1-10; and JOHN DOE 1-10; Case No. 2:23-cv-00134-GJF-KRS (D.N.M., Feb. 13, 2023), is brought against the Defendants' willful failure to compensate the Plaintiff with minimum wages as required by the Fair Labor Standards Act ("FLSA"), New Mexico Minimum Wage Act ("NMMWA"), and unjust enrichment. The Defendants repeatedly and willfully violated the Fair Labor Standards Act and NMMWA by failing to adequately reimburse delivery drivers for their delivery-related expenses, thereby failing to pay delivery drivers the legally mandated minimum wages for all hours worked. All delivery drivers at the Defendants' Pizza Hut stores, including Plaintiff, have been subject to the same or similar employment policies and practices with respect to wages and reimbursement for expenses, says the complaint. The Plaintiff has worked at the Pizza Hut store located in Truth or Consequences, New Mexico since July 2021. The Defendants operate and/or operated Pizza Hut locations across the United States.[BN] The Plaintiff is represented by: Christopher Moody, Esq. MOODY & STANFORD, P.C. 4169 Montgomery Blvd., NE Albuquerque, NM 87109 Phone: 505-944-0033 Fax: 505-944-0034 Email: moody@nmlaborlaw.com - and - Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Emily Hubbard, Esq. BILLER & KIMBLE, LLC 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 Phone: 513-202-0710 Fax: 614-340-4620 Email: abiller@billerkimble.com akimble@billerkimble.com ehubbard@billerkimble.com Web: www.billerkimble.com B. BOYS INC: Rodriguez Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against B. Boys, Inc. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. B. Boys, Inc. d/b/a Belgian Boys, Case No. 1:23-cv-01161-MKB-CLP (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. B. Boys, Inc. doing business as Belgian Boys -- https://www.belgianboys.com/ -- produces delights from breakfast to dessert, all made in Europe for sharing worldwide.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com BANK OF NEW YORK: Third Amended Case Management Order Entered ------------------------------------------------------------- In the class action lawsuit captioned as STEPHEN WALDEN and LESLIE WALDEN, individually and on behalf of all others similarly situated, v. THE BANK OF NEW YORK MELLON CORPORATION and BNY MELLON, N.A., Case No. 2:20-cv-01972-CRE (W.D. Pa.), the Hon. Judge entered a third amended case management order: 1. The parties shall complete a first phase of discovery by February 17, 2023. All interrogatories, depositions, and requests for admission and/or production of documents shall be served within sufficient time to allow responses to be completed prior to the close of fact discovery. 2. The Plaintiffs' Expert Reports as to class certification are due on or before March 17, 2023. The Defendant's Expert Reports as to class certification are due on or before April 17, 2023. 3. The Plaintiffs' rebuttal Expert Reports as to class certification (if any) are due on or before May 15, 2023. Depositions of all experts pertaining to class certification shall be completed on or before June 16, 2023. 4. The Plaintiffs' Motion for Class Certification and any Motions for Summary Judgment as to the Named Plaintiffs' claims, Memoranda in Support, and all supporting evidence are due on or before July 17, 2023. 5. The Defendants' Memorandum in Opposition to Class Certification and Oppositions to any Motions for Summary Judgment as to the Named Plaintiffs' claims, and all supporting evidence, are due 45 days after said motions are filed. 6. The parties shall complete the ADR process that they select by November 30, 2023. A copy of the Court's order dated Feb. 3, 2023 is available from PacerMonitor.com at https://bit.ly/41behNY at no extra charge.[CC] BARNARD CONSTRUCTION: Scheduling Order Entered in Gonzalez Suit --------------------------------------------------------------- In the class action lawsuit captioned as FRANK GONZALEZ, FRANCISCO GONZALEZ RIOS, and PABLO GONZALEZ RIOS, individually, and on behalf of all others similarly situated, v. BARNARD CONSTRUCTION COMPANY, INC., a corporation; BFBC, LLC, a limited liability company; Case No. 3:22-cv-00534-AJB-KSC (S.D. Cal.), the Hon. Judge Karen S. Crawford entered a scheduling order through the filing of any class certification motions: 1. Any motion to join other parties, February 17, 2023 to amend the pleadings, or to file additional pleadings shall be filed on or before: 2. Fact and class discovery are not April 21, 2023 bifurcated but all class discovery shall be completed by all parties on or before: 3. Any discovery motions related to May 19, 2023 class certification shall be brought no later than: 4. A motion for class certification June 16, 2023 shall be filed no later than: 5. A telephonic Case Management August 25, 2023 Conference (CMC) has been scheduled for: A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/4132qS3 at no extra charge.[CC] BEYOND MEAT: Zakinov Suit Transferred to N.D. Illinois ------------------------------------------------------ The case styled as Stan Zakinov, individually and on behalf of all others similarly situated v. Beyond Meat, Inc., Case No. 4:23-cv-00144 was transferred from the U.S. District Court for the Southern District of Texas, to the U.S. District Court for the Northern District of Illinois on Feb. 13, 2023. The District Court Clerk assigned Case No. 1:23-cv-00840 to the proceeding. The nature suit is stated as Other Fraud. Beyond Meat, Inc. -- https://www.beyondmeat.com/ -- is a Los Angeles–based producer of plant-based meat substitutes founded in 2009 by Ethan Brown.[BN] The Plaintiff is represented by: Robert Kinney Shelquist, Esq. LOCKRIDGE GRUNDAL NAUEN & HOLSTEIN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Email: rkshelquist@locklaw.com - and - Cory S. Fein, Esq. CORY FEIN LAW FIRM 712 Main St., Suite 800 Houston, TX 77002 Phone: (281) 254-7717 Email: cory@coryfeinlaw.com BLACKBIRDS BROOKLYN: Rodriguez Files ADA Suit in E.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against Blackbirds Brooklyn, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. Blackbirds Brooklyn, LLC, Case No. 1:23-cv-01174 (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Blackbirds Brooklyn doing business as Four & Twenty Blackbirds -- https://birdsblack.com/ -- is a pie and coffee shop.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com BLUE CROSS: New Mexico Court Denies Bid to Remand Graham Class Suit ------------------------------------------------------------------- In the case, JULIE GRAHAM, Individually and on behalf of all others similarly situated, Plaintiff v. BLUE CROSS AND BLUE SHIELD OF NEW MEXICO, Defendant, Civ. No. 22-0305 KG/GJF (D.N.M.), Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico denies the Plaintiff's Motion to Remand. Graham, a citizen and resident of New Mexico, filed the lawsuit against Blue Cross and Blue Shield of New Mexico (BCBSNM) in New Mexico state court March 21, 2022. She brings claims against BCBSNM for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, violations of the New Mexico Insurance Code, and violations of the New Mexico Unfair Practices Act related to the alleged wrongful denial or delay of pre-authorization for out-of-network medical services. She also proposes a class action against BCBSNM. BCBSNM, which contends it should have been identified as HCSC Insurance Services Company (HISC), a wholly owned subsidiary of Health Care Service Corporation, a Mutual Legal Reserve Company, timely removed the case to federal court on April 22, 2022, on the basis of diversity jurisdiction pursuant to 28 U.S.C. Section 1332(a) and the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). The Plaintiff timely filed a motion to remand on May 13, 2022, arguing that BCBSNM is a citizen of New Mexico, such that diversity does not exist, and, in the alternative, that BCBSNM consented to litigate disputes related to its Medicaid provider agreement with the State of New Mexico only in New Mexico's First Judicial District Court. She admits she is a citizen of New Mexico and concedes that the diversity amount-in-controversy requirement is satisfied. The Plaintiff passingly disputes that the CAFA amount-in-controversy requirement is satisfied, solely on the basis that it "is not readily ascertainable at this time." She disputes only the citizenship of the BCBSNM and the applicability of a forum selection clause in the Medicaid contract with the State of New Mexico. Judge Gonzales faces two legal questions: 1) is BCBSNM a legal entity separate and distinct from HISC, and if so, is it a New Mexico citizen?; and 2) does the forum selection clause in BCBSNM's Medicaid contract with State of New Mexico deprive this Court of jurisdiction? He answers both questions in the negative: BCBSNM is not a separate and distinct legal entity and is not a New Mexico citizen, and the forum selection clause in the Medicaid contract does not apply to the case. Initially, Judge Gonzales is not persuaded that BCBSNM has a separate legal character from HISC and is not persuaded that HISC is a citizen of any state other than Illinois. The removing party bears the burden of establishing the jurisdictional facts by a preponderance of the evidence. BCBSNM has satisfied its burden with respect to citizenship: BCBSNM is a trade name utilized by HISC, which is a incorporated in Illinois with its principal place of business in Illinois. For jurisdictional purposes, BCBSNM is a citizen of Illinois. Because the Plaintiff is a citizen of New Mexico and Defendant is a citizen of Illinois, and the amount in controversy exceeds $75,000, the Court has diversity jurisdiction over the case pursuant to 28 U.S.C. Section 1332. Next, the Plaintiff seeks to define the class as: "All citizens of New Mexico who were participants in the BCBS Blue Cross Community Centennial program and who have been denied benefits and/or reimbursement for goods or services for which they were eligible under the program, who then requested an appeal of those denials, suffered a denial of their appeal, requested a Fair Hearing after denial of their appeal, and where Defendant BCBS then reversed its denial of the appeal, causing the Fair Hearing Bureau appeal to be vacated or dismissed." Having found that the case satisfies CAFA's numerosity and amount-in-controversy requirements, and having already determined that BCBSNM is a citizen of Illinois and the Plaintiff is a citizen of New Mexico, Judge determines that CAFA provides a separate basis for exercising subject matter jurisdiction. Moreover, the local controversy exception does not apply and does not mandate remand. As a final basis in support of her Motion to Remand, the Plaintiff argues that the forum selection clause in HISC's Medicaid contract with the State of New Mexico applies to this case and is mandatory, meaning that the case can only be heard in New Mexico's First Judicial District Court. Judge Gonzales holds that the Plaintiff bears the burden of establishing that she is an intended third-party beneficiary of the Medicaid contract with the right to enforce its provisions. He opines that the Plaintiff has not carried her burden. Indeed, the clear language of the contract shows that there are no intended third-party beneficiaries. Because the Plaintiff is not a party to the Medicaid contract and is not an intended third-party beneficiary, she cannot enforce the forum selection clause contained therein. For these reasons, Judge Gonzales denies the Plaintiff's Motion to Remand. A full-text copy of the Court's Feb. 7, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/22cmhs9f from Leagle.com. BLUE KNIGHT: Fails to Pay Security Guards' OT Wages, Sanchez Says ----------------------------------------------------------------- Valeria Sanchez, on behalf of herself and all others similarly situated v. Blue Knight Security and Marilyn Robinson O'Hara,, Case No. 4:23-cv-00564 (S.D. Tex., Feb. 14, 2023) seeks to recover unpaid overtime compensation under the Fair Labor Standards Act. The Defendants allegedly violated the FLSA by failing to pay the Plaintiff and Class Members time and one-half for each hour worked in excess of 40 per work week. The Defendants also failed to compensate the Plaintiff at the federally mandated minimum wage rate. Furthermore, the Defendants had Plaintiff Valeria Sanchez sign a document "waiving" her right to overtime pay before paying her. The Defendants also had the other Plaintiff Class Members sign similar "waivers", the suit claims. Plaintiffs Valeria Sanchez and Class Members were employed as security guards and provided service for Defendants and Defendants' customers. Blue Knight provides security services throughout Harris County, Texas.[BN] The Plaintiffs are represented by: Charles M.R. Vethan, Esq. THE VETHAN LAW FIRM , PC 820 Gessner Rd., Ste.1510 Houston, TX 77024 Telephone: (713) 526-2222 Facsimile: (713) 526-2230 BON APPETIT: Nordman Wage-and-Hour Suit Removed to N.D. Cal. ------------------------------------------------------------ The case styled JULIE NORDMAN and LINDA PEPPARS, individually and on behalf of others similarly situated, Plaintiffs v. BON APPETIT MANAGEMENT CO., a California corporation; COMPASS GROUP USA, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 23-CIV-00188, was removed from the Superior Court of California, in and for the County of San Mateo, to the United States District Court for the Northern District of California on Feb. 16, 2023. The Clerk of Court for the Northern District of California assigned Case No. 3:23-cv-00703 to the proceeding. The complaint alleges eight causes of action for: (1) failure to pay all wages owed; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to timely pay wages; (5) failure to provide accurate wage statements; (6) failure to reimburse necessary business expenses; (7) conversion; and (8) unfair competition. Bon Appetit Management Co. is a Palo Alto, California-based on-site restaurant company that provides café and catering services to corporations, colleges, and universities.[BN] The Defendants are represented by: Lonnie D. Giamela, Esq. Joel Moon, Esq. FISHER & PHILLIPS LLP 444 South Flower Street, Suite 1500 Los Angeles, CA 90071 Telephone: (213) 330-4500 Facsimile: (213) 330-4501 E-mail: lgiamela@fisherphillips.com jmoon@fisherphillips.com BRANDEIS UNIVERSITY: Omori, et al., Seek to Certify Classes ----------------------------------------------------------- In the class action lawsuit captioned as ALAN THOMAS OMORI and LINFEI YANG, individually and on behalf of all others similarly situated, v. BRANDEIS UNIVERSITY, Case No. 1:20-cv-11021-NMG (D. Mass.), the Plaintiffs ask the Court to enter an order certifying the following classes: -- Tuition Class "All students enrolled at Brandeis University during the Spring 2020 academic term and charged tuition by Brandeis." The Proposed Class Representatives are Alan Omori and Linfei Yang. -- Studio Fee Class "All students enrolled at Brandeis University during the Spring 2020 academic term and charged a Studio Fee by Brandeis. The Proposed Class Representative is Linfei Yang. The Plaintiffs also seeks the appointment of Poulin | Willey | Anastopoulo, LLC, Hagens Berman Sobol Shapiro LLP, and Stanzler Levine, LLC as class counsel. Brandeis University is a private research university with a liberal arts focus in Waltham/Boston, Massachusetts. A copy of the Plaintiffs' motion dated Feb. 3, 2023 is available from PacerMonitor.com at https://bit.ly/3EkB00z at no extra charge.[CC] The Plaintiffs are represented by: Roy T. Willey, IV, Esq. Eric M. Poulin, Esq. Paul J. Doolittle, Esq. Blake G. Abbott, Esq. POULIN | WILLEY | ANASTOPOULO, LLC 32 Ann Street, Charleston, SC 29403 Telephone: (843) 614-8888 E-mail: roy@akimlawfirm.com eric@akimlawfirm.com pauld@akimlawfirm.com blake@akimlawfirm.com - and - Daniel J. Kurowski, Esq. Whitney K. Siehl, Esq. Rachel Downey, Esq. Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 455 N. Cityfront Plaza Dr., Suite 2410 Chicago, IL 60611 Telephone: (708) 628-4949 E-mail: dank@hbsslaw.com whitneys@hbsslaw.com racheld@hbsslaw.com steve@hbsslaw.com - and - Richard E. Levine, Esq. STANZLER LEVINE, LLC 37 Walnut Street, Suite 200 Wellesley, MA 02481 Telephone: (617) 482-3198 E-mail: rlevine@stanzlerlevine.com BRANDON RENTAL: Klyn Sues to Recover Unpaid Overtime Compensation ----------------------------------------------------------------- Maxwell Klyn, on behalf of himself and others similarly situated v. BRANDON RENTAL CENTER, INC. a Florida Profit Corporation, Case No. 8:23-cv-00315 (M.D. Fla., Feb. 13, 2023), is brought pursuant to the Fair Labor Standards Act of 1938, (hereinafter "FLSA"), to recover unpaid overtime compensation owed to the Plaintiff. The Plaintiff worked more than 40 hours per week during many weeks of his employment, without being paid the federally mandated wage for overtime. Specifically, the Plaintiff was paid only straight time for all hours worked, even those hours in excess of forty per work week. The Defendant violated the FLSA by failing to pay Plaintiff for all overtime hours worked in excess of forty per week at the applicable time and one-half rate, says the complaint. The Plaintiff was employed as an hourly maintenance technician by the Defendant. RENTAL CENTER is a Florida Profit Corporation doing business within the Middle District of Florida, and is an enterprise engaged in an industry affecting commerce.[BN] The Plaintiff is represented by: Robert S. Norell, Esq. ROBERT S. NORELL, P.A. 300 N.W. 70th Avenue, Suite 305 Plantation, FL 33317 Phone: (954) 617-6017 Facsimile: (954) 617-6018 Email: rob@floridawagelaw.com BRASS AND BURL: Jackson Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Brass and Burl, Inc. The case is styled as Sylinia Jackson, on behalf of herself and all other persons similarly situated v. Brass and Burl, Inc., Case No. 1:23-cv-01262 (S.D.N.Y., Feb. 14, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Brass & Burl -- https://www.brassandburl.com/ -- is a luxury retailer specializing in furniture and decor for the thoughtfully curated home.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com BREADBERRY INC: Can Compel Arbitration in Calderon Labor Class Suit ------------------------------------------------------------------- In the case, VANESSA DEL CARMEN ALVARADO CALDERON on behalf of herself, FLSA Collective Plaintiffs, and the Class, Plaintiff v. BREADBERRY INC. d/b/a Breadberry, and SAMUEL GLUCK, Defendants, Case No. 22-CV-1601 (MKB) (LB) (E.D.N.Y.), Judge Margo K. Brodie of the U.S. District Court for the Eastern District of New York grants the Defendants' motion to compel arbitration as to all of the Plaintiffs' claims. Plaintiff Alvarado commenced the action on behalf of herself, the Fair Labor Standards Act ("FLSA") Collective Plaintiffs and the Class, against the Defendants, alleging that the Defendants violated her rights under the FLSA, 29 U.S.C. Sections 201 et seq., and the New York Labor Law ("NYLL"), N.Y. Lab. Law Sections 650 et seq. Beginning in April of 2017 through February of 2020, the Plaintiff was employed as a deli worker in the Breadberry supermarket in Brooklyn, NY, which was owned by the Defendants. She was a dues-paying member of Local 713 of the International Brotherhood of Trade Unions. In April of 2017 when the Defendants hired the Plaintiff, a Collective Bargaining Agreement ("CBA") governing the terms and conditions of union-member employment was already in place. On Jan. 1, 2018, a new CBA ("2018 CBA") replaced the 2014 CBA, and remained in effect through the end of the Plaintiff's employment by the Defendants. The 2018 CBA contains two arbitration provisions, one of which is included in the 2014 CBA. On Aug. 19, 2022, the Defendants moved to compel arbitration and dismiss the complaint or, in alternative, stay the action pending arbitration, and on Sept. 30, 2022, the Court referred the motion to Magistrate Judge Lois Bloom for a report and recommendation. By report and recommendation dated Dec. 15, 2022, Judge Bloom recommended that the Court grants the Defendants' motion to compel arbitration as to certain claims and deny as to others (the "R&R"). On Dec. 29, 2022, the Defendants filed a partial objection to the R&R, arguing that Judge Bloom erred in recommending that the Court deny Defendants' motion as to certain claims. The Plaintiff has not yet filed a response, and the time for doing so has passed. No party has objected to Judge Bloom's recommendations that the Court: (1) grants the Defendants' motion to compel arbitration with respect to the Plaintiff's FLSA and NYLL claims from Jan. 1, 2018 to February 2020; (2) stays the case pending the resolution of the Plaintiff's claims in individual grievance, mediation, or arbitration; and (iii) denies the Plaintiff's request that the Court finds two provisions of the arbitration agreement unconscionable and modify the agreement. Judge Brodie has reviewed the unopposed portions of the R&R and, finding no clear error, adopts the recommendations pursuant to 28 U.S.C. Section 636(b)(1). The Defendants object to Judge Bloom's recommendation that the Court denies their motion to compel arbitration with respect to the Plaintiff's pre-2018 FLSA and NYLL claims, arguing that: (1) the recommendation is contrary to Second Circuit precedent; and (2) the Plaintiff did not argue and therefore waived the argument that the pre-2018 claims did not fall within the scope of the 2018 CBA arbitration provision. Judge Brodie finds that the Plaintiffs' contractual position did not materially change between the time of the execution of the two agreements. Nor is the scope of the arbitration clause temporally limited. In view of the fact that the broad language of the 2018 CBA is not temporally limited, the 2018 CBA applies to all of the Plaintiff's FLSA and NYLL claims and requires that these claims be submitted to arbitration. For the foregoing reasons, Judge Brodie grants the Defendants' motion to compel arbitration as to all of the Plaintiff's claims. She also denies the Plaintiff's request that the Court modifies the arbitration agreement. She stays the case pending resolution of the Plaintiff's claims in arbitration. A full-text copy of the Court's Feb. 8, 2023 Memorandum & Order is available at https://tinyurl.com/mpuheyhd from Leagle.com. BUDDI US: Scheduling Order Entered in S.C. Class Action -------------------------------------------------------- In the class action lawsuit captioned as S.C. v. BUDDI US LLC, et al., Case No. 8:20-cv-01370-CJC-KES (C.D. Cal.), the Hon. Judge Cormac J. Carney entered a scheduling order as follows: 1. All discovery, including discovery December 21, 2023 motions, shall be completed by: 2. Discovery motions must be filed December 21, 2023 and heard prior to this date: 3. The parties shall have until February 19, 2024 to file and have heard all other motions, including motions to join or amend the pleadings: 4. A pretrial conference will be April 22, 2024 held on:, 5. The case is set for a jury trial: April 30, 2024 6. The parties shall have until: January 4, 2024 to conduct settlement proceedings: 7. The Plaintiff shall have until July 24, 2023 to file and have heard any class certification motion: Buddi US is a Software company. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3IwLw7t at no extra charge.[CC] CALIFORNIA: Blake, et al., Seek to Certify Class ------------------------------------------------ In the class action lawsuit captioned as Kenyata Blake, Charles Stevenson, on their own behalf and those similarly situated, v. Kathleen Allison, Secretary of California Department of Corrections and Rehabilitation (CDCR), et al., the Plaintiffs ask the Court to certify class of: "all presently incarcerated within the California Department of Corrections and Rehabilitation;" The Plaintiffs filed the action for injunctive relief and declaratory relief on Feb. 3, 2023 for violations of the 8th Amendment's Protections against cruel and unusual punishment, and also the 14th Amendment's Protections against Equal Protection as well as Deliberate Indifference. The California Department of Corrections and Rehabilitation is the penal law enforcement agency of the government of California responsible for the operation of the California state prison and parole systems. Its headquarters are in Sacramento. A copy of the Court's order dated Feb. 3, 2023 is available from PacerMonitor.com at https://bit.ly/3KjQWUm at no extra charge.[CC] CASH ADVANCE: Appeal From Arbitration Denial in Stanton Suit Tossed ------------------------------------------------------------------- In the case, Kamisha Stanton, individually and on behalf of all others similarly situated, Plaintiff-Appellee v. Cash Advance Centers, Inc., a Delaware corporation, Defendant-Appellant, Case No. 22-1466 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit dismisses the appeal from the district court's order denying the motion to compel arbitration for lack of jurisdiction. Stanton brought a putative class action against Cash Advance Centers, Inc., alleging a violation of the Telephone Consumer Protection Act, 47 U.S.C. Section 227. The counsel purporting to represent Cash Advance Centers, Inc., moved to compel arbitration based on arbitration provisions contained in loan agreements between Stanton and non-party Advance America, Cash Advance Centers of Missouri, Inc. The district court denied the motion to compel. The counsel also moved to substitute Advance America, Cash Advance Centers of Missouri, Inc., for Cash Advance Centers, Inc., as the party defendant, but the district court denied that motion as well. A notice of appeal was docketed to appeal the district court's order denying the motion to compel arbitration. It was purportedly was filed by attorneys for Defendant Cash Advance Centers, Inc. and Advance America, Cash Advance Centers of Missouri, Inc. At oral argument, however, the counsel for the Appellant clarified that she represents only non-party Advance America, Cash Advance Centers of Missouri, Inc., and does not represent the party Defendant Cash Advance Centers, Inc. Given this unusual procedural posture, the Eighth must consider whether the court has jurisdiction over the appeal. Only parties to a lawsuit may appeal an adverse judgment. The federal rules of procedure reflect this principle by requiring that the notice of appeal specify the party or parties appealing by naming each one in the caption or body of the notice. Because Advance America, Cash Advance Centers of Missouri, Inc., is not a party to the lawsuit, its notice of appeal is insufficient to confer jurisdiction on the Eighth Circuit. It says it has recognized limited exceptions to the rule that only parties to a lawsuit may appeal, but none of the recognized exceptions is applicable. In this case, the motion to compel arbitration was purportedly filed only by Cash Advance Centers, Inc. The non-party Advance America, Cash Advance Centers of Missouri, Inc., made no appearance in connection with the motion, and the court's order addressed only a motion advanced by the party defendant. The notice of appeal also names Cash Advance Centers, Inc., the party defendant, as an appellant. But while attorneys purporting to represent Cash Advance Centers, Inc., filed a notice of appeal, the counsel acknowledged at oral argument that she represented only non-party Advance America, Cash Advance Centers of Missouri, Inc., and not Cash Advance Centers, Inc. The answer to Stanton's complaint similarly lists the attorneys who filed the notice of appeal as counsel for non-party Advance America, Cash Advance Centers of Missouri, Inc. The answer asserts that Cash Advance Centers, Inc., was "improperly identified" in the complaint. The appellant's briefs contain similar language. No person has the right to appear as an entity's attorney without the entity's authority, the Eighth Circuit says. An appeal taken by someone unauthorized to do so should be dismissed. Because the attorneys who filed the notice of appeal on behalf of Cash Advance Centers, Inc., concededly did not represent that party, the notice of appeal was unauthorized and invalid. For these reasons, the Eighth Circuit dismisses the appeal for lack of jurisdiction. Stanton's motion to strike is denied as moot. A full-text copy of the Court's Feb. 7, 2023 Order is available at https://tinyurl.com/35k9hupa from Leagle.com. CASH EXPRESS: Fails to Provide Proper OT Pay, Lumpkin et al. Claim ------------------------------------------------------------------ ALLISON LUMPKIN and MALLORY BOWLIN, individually and on behalf of themselves and on behalf of others similarly situated, Plaintiffs v. CASH EXPRESS, LLC, a Tennessee Limited Liability Company, and GARRY MCNABB, individually, Defendants, Case No. 2:23-cv-00003 (M.D. Tenn., January 20, 2023) is a collective action complaint brought against the Defendants for their alleged violations of the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants an hourly-paid non-exempt employees - Plaintiff Lumpkin as a Manager at their Rogersville, Tennessee Cash Express location, while Plaintiff Bowlin as an Assistant Manager at their Mount Carmel, Tennessee Cash Express location - during the three-year period immediately preceding the filing of this complaint. According to the complaint, the Plaintiffs and other similarly situated individuals were typically scheduled by the Defendants to work at least 40 hours or more per week, but routinely worked additional hours. However, the Defendants did not properly compensate them for all hours they worked. The Defendants also failed to include non-discretionary bonuses they received for the purpose of calculating the proper overtime rate of pay. As a result, despite working more than 40 hours per week, the Defendants failed to properly pay them overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek, says the suit. The Plaintiffs seek to recover all unpaid back wages pursuant to the applicable wage and overtime rates, as well as liquidated damages, pre- and post-judgment interest, reasonable attorneys' fees and all costs of this action, and other relief to which they and other similarly situated employees may be entitled. Cash Express, LLC is a check cashing nontraditional financial institution. Garry McNabb is an owner, member and key principal of the Corporate Defendant. [BN] The Plaintiffs are represented by: J. Russ Bryant, Esq. Robert E. Turner, Esq. Robert E. Morelli, Esq. JACKSON SHIELDS YEISER HOLT OWEN & BRYANT Attorneys at Law 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 754-8524 E-mail: rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com CENTRASTATE HEALTHCARE: Faces Class Action Following Cyberattack ---------------------------------------------------------------- News 12 reports that hundreds of thousands of patients' confidential information were leaked from CentraState Healthcare System, and now patients are suing. A woman has filed a class-action lawsuit against CentraState, a week after the cyberattack. The breach happened in December but was only reported recently. A hacker had obtained a copy of the archived database, which forced CentraState to temporarily divert ambulances to other hospitals and halt outpatient care. The health care center notified over 600,000 patients that their names, addresses, Social Security numbers and medical records were leaked. The health care center began mailing letters to patients affected on Feb. 17. The company released a statement that said, "We deeply regret any concern this incident may have caused and want to assure you that we are committed to the security of our systems, and we remain ready to provide the high-quality care that our patients and families have come to expect from CentraState." The woman who filed the lawsuit did not wish to speak to News 12 about it. CentraState says it is now enhancing its security around patient data. [GN] CGS STORES: Joint Bid to Certify Conditional Class OK'd ------------------------------------------------------- In the class action lawsuit captioned as BEVERLY LEWIS, v. CGS STORES, LLC, Case No. 1:22-cv-01166-JDB-jay (W.D. Tenn.), the Hon. Judge Jon A. York entered an order granting joint motion to certify conditional class as follows: The Plaintiff initially filed a Motion to Certify Class on November 11, 2022. That Motion was referred to the undersigned for determination pursuant to Federal Rule of Civil Procedure 72. Since that filing, the parties have conferred and agree to the terms of conditional class certification. such, the parties' Joint Motion is granted and the Plaintiff's individual motion is denied as moot. The following collective is conditionally certified pursuant to the Fair Labor Standards Act (FLSA): "All current and former hourly-paid employees who (1) worked in Defendant's Camden, Tennessee store from March 21, 2021, to the entry date of this order, and/or (2) worked in the Defendant's Waverly, Tennessee store from June 13, 2022 to the entry date of this order. Persons fitting this definition will be referred to as "FLSA Collective Members." A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3XDfOcI at no extra charge.[CC] CHARLES SCHWAB: Wins Bid to Compel Arbitration ---------------------------------------------- In the class action lawsuit captioned as ROBERT CRAGO, et al., v. CHARLES SCHWAB & CO., INC., et al., Case No. 3:16-cv-03938-RS (N.D. Cal.), the Hon. Judge Richard Seeborg entered an order granting motion to compel arbitration and denying renewed motion for class certification. Lead Plaintiff Robert Wolfson and named Plaintiff K. Scott Posson filed a renewed motion for class certification, which seeks certification of an issues class under Federal Rule of Civil Procedure 23(c)(4). The Defendants Charles Schwab & Co., Inc., and The Charles Schwab Corporation move to compel arbitration. The Plaintiffs previously moved for class certification under Federal Rules of Civil Procedure 23(b)(1) and (b)(3). That motion was denied on October 27, 2021, on the grounds that there was "no presumption of reliance in this case, and requiring individualized proof of reliance as to each plaintiff defeated the commonality requirement of Rule 23(a). Further, the lack of a presumption of reliance precluded establishing predominance as required by Rule 23(b)(3)." The order did not specify whether class certification was denied with prejudice. To address the deficiencies identified in the order, Plaintiffs filed a renewed motion for class certification on September 23, 2022, seeking a narrower issues class under Rule 23(c)(4). The Defendants, meanwhile, argue that Plaintiffs' renewed motion must be denied, and arbitration must now be compelled, under the terms of Schwab's Account Agreement. The parties agree that the Agreement contains the following provision. Charles Schwab provides financial solutions. The Company offers brokerage and trading, order execution, mutual funds, stocks, and bonds. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3IuAXl1 at no extra charge.[CC] CHRISTIAN DIOR: Judge Tosses Biometrics Privacy Class Action Suit ----------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a federal judge has determined eyeglass sellers have exemption from Illinois' biometric privacy law because their virtual try-on software qualifies as provision of health care, even if customers are only shopping for sunglasses. U.S. District Judge Elaine Bucklo issued an opinion Feb. 10 dismissing a complaint customer Delma Warmack-Stillwell lodged against designer Christian Dior. Her ruling follows the path of other federal judges who determined the Illinois Biometric Information Privacy Act doesn't apply to websites where a user uploads a photo of their face, then places images of eyeglasses on the face photo to determine how they might look wearing the products. Judge Charles Kocoras dismissed a similar complaint in Vo vs. VSP Retail Development Holding in March 2020, and U.S. District Judge Harry Leinenweber dismissed a class action against Frames for America in September 2022. According to Warmack-Stillwell, Dior's virtual try-on tool uses FittingBox software and a customer's web camera to display real-time images of the shopper's face. During that process, she alleged, the software scans the shopper's facial geometry and transfers the data to a FittingBox server without Dior following BIPA's mandates to collect written consent for the use of personal data and without providing written data use, retention and destruction policies. She also alleged the company is improperly profiting off biometric data. In arguing for dismissal, Dior said Warmack-Stillwell failed to allege a legal injury. Bucklo rejected that argument, pointing to a 2020 U.S. Seventh Circuit Court of Appeals opinion, Bryant v. Compass Group USA. Although that opinion did say the allegation of failing to publicly disclose a data retention policy can't sustain a BIPA claim, Bucklo noted the court later clarified claims can survive when they allege violations of "the full range" of the data policy guidelines. According to Bucklo, Warmack-Stillwell alleged "violation of the full panoply" of policy requirements, including that Dior neither developed nor followed a data collection and retention plan. Bucklo also said the complaint adequately alleged Dior used biometric data to increase sales of its sunglasses. However, Dior won dismissal by invoking one of BIPA's statutory exemptions. The law prevents lawsuits when the data in question is "captured from a patient in a health care setting" and excludes from protection any "information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996." Dior only sought the general health care exemption, Bucklo wrote, and rejected Warmack-Stillwell's contention she is not a "patient" because she only shopped for non-prescription lenses. "Sunglasses, even if non-prescription, protect one's eyes from the sun and are Class I medical devices under the Food & Drug Administration's regulations," Bucklo wrote. "By using the (virtual try-on tool) to try on sunglasses, plaintiff was 'an individual awaiting … medical care,' and therefore a 'patient,' because the tool facilitates the provision of a medical device that protects vision. Indeed, according to the complaint, using the VTOT is the 'online equivalent' of going to a brick-and-mortar location to get sunglasses." Bucklo agreed website users like Warmack-Stillwell might "be surprised to learn" the technology established a patient/provider relationship, she said her objective application of BIPA's exemption shouldn't change just because some customers might only be shopping for the purpose of fashion. She also said the fact BIPA specifically mentions other medical settings, such as organ donation and X-rays, doesn't make it "a stretch" to count trying on and selling sunglasses as health care. "This conclusion comports with the one reached by the other courts that have considered whether BIPA's general health care exemption applies in the context of virtual try-on tools for eyewear," she wrote, adding that both Judges Kocoras and Leinenweber "recognized that the virtual try-on tools were also used for nonprescription sunglasses." Bucklo further acknowledged lawsuits in which plasma collectors have been unable to end BIPA lawsuits but noted judges in those cases observed the intent of users wasn't health care, but to get paid for selling blood. She did not consider Dior's other arguments for dismissal. The ruling in favor of Dior came squarely between two significant Illinois Supreme Court rulings cementing the ability of plaintiffs to seek financial damages under BIPA. The first, a Feb. 2 opinion, established BIPA should be governed by a five-year, rather than one-year statute of limitations. The second, dated Feb. 17, held that each individual data collection event can constitute a separate actionable violation. That, for instance, could include customers like Warmack-Stillwell suing for each time they visited the Dior website, even if they used the technology the same way on each shopping trip. Such interpretation could have exposed a retailer like Dior to massive potential liability, potentially running into the hundreds of millions or even billions of dollars. Warmack-Stillwell has been represented by attorneys Adam J. Levitt, Amy E. Keller, Nada Djordjevic and James Ulwick, of the firm of DiCello Levitt, of Chicago. Dior has been represented by attorneys Robert E. Shapiro, Maile H. Solís, Connor T. Gants and David B. Lurie, of the firm of Barack Ferrazzano Kirschbaum & Nagelberg, of Chicago. [GN] CHRISTOPHER WRAY: Brewer Files Suit in D. Columbia -------------------------------------------------- A class action lawsuit has been filed against Christopher Wray, et al. The case is styled as Dennis Sheldon Brewer, individually and on Behalf of All Others Similarly Situated v. Christopher Wray, Director, Federal Bureau of Investigation; Kimberly Cheatle, Director, United States Secret Service; ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security; JANET YELLEN, Secretary, Department of the Treasury; WILLIAM BURNS, Director; LLOYD AUSTIN, Secretary of Defense; STEFANIE TOMPKINS, Director, Defense Advanced Research Projects Agency; FRANK KENDALL, III, Secretary; CHRISTINE WORMUTH, Secretary; CARLOS DEL TORO, Secretary; Case No. 1:23-cv-00415-UNA (D.D.C., Feb. 14, 2023). The nature of suit is stated as Other Civil Rights for the Civil Rights Act. Christopher Asher Wray is an American attorney who is the eighth Director of the Federal Bureau of Investigation, serving since 2017.[BN] The Plaintiff appears pro se. CIRCLE K: McDonald Suit Remanded to California State Court ---------------------------------------------------------- In the class action lawsuit captioned as TIFFANY MCDONALD, v. CIRCLE K STORES, INC., Case No. 3:22-cv-00495-L-AGS (S.D. Cal.), the Hon. Judge M. James Lorenz entered an order granting the Plaintiff's motion to remand action to the Superior Court of the State of California for the County of San Diego. Accordingly, the Defendant failed to meet its burden by a preponderance of the evidence to support its assumption of a four-year liability period to calculate the amount in controversy in this action. The Defendant filed an opposition and Plaintiff replied. The Plaintiff filed a complaint in State court asserting numerous California Labor Code violations and violation of California Business and Professions Code section 17200 on behalf of non-exempt employees of Defendant Circle K Stores, Inc. employed since January 1, 2021. The Plaintiff also filed this action pursuant to the California Private Attorneys General Act, Cal. Lab. Code. The Plaintiff alleged that Defendant failed to pay all due minimum and overtime wages, provide meal periods, permit rest breaks, provide accurate itemized wage statements, and failed to timely pay all wages due upon separation from employment. Circle K is a chain of convenience stores owned by Alimentation Couche-Tard, based in Laval, Canada A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3I5AsMY at no extra charge.[CC] CNG RESTAURANTS: Underpays Servers & Bartenders, Murphy Claims -------------------------------------------------------------- CHRISTIN MURPHY, individually and on behalf of others similarly situated, Plaintiff v. CNG RESTAURANTS LLC, d/b/a Twin Peaks Restaurant, a Tennessee Limited Liability Company, Defendant, Case No. 3:23-cv-00055 (M.D. Tenn., January 20, 2023) brings this complaint as a collective action against the Defendant to recover unpaid minimum wages, overtime compensation, and other damages pursuant to the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as one of its employed servers and bartenders to serve food and beverage items to customers. The Plaintiff claims that she and other similarly situated servers and bartenders were suffered and/or permitted to work 30 minutes "off the clock" until 11:00 am when the restaurant officially opened, but were not paid at all for this 30-minute window. Additionally, despite working more than 40 hours per week, they were not paid overtime pay at the legally mandated overtime rate. Instead, they only receive the tipped credit rate of $2.13 per hour and any tips received. On behalf of herself and all other similarly situated servers and bartenders, the Plaintiff seeks to recover unpaid overtime wages and minimum wages, as well as liquidated damages, pre- and post-judgment interest, costs, expenses and disbursements together with reasonable attorneys' fees and expert fees, and other relief as the Court deems just and proper. CNG Restaurants LLC is a franchisee of Twin Peaks Restaurants and owns and operates the Twin Peaks Restaurant located at 1634 Galleria Boulevard, Brentwood, Tennessee 37027-2925. [BN] The Plaintiff is represented by: J. Russ Bryant, Esq. Robert E. Turner, Esq. Robert E. Morelli, Esq. JACKSON SHIELDS YEISER HOLT OWEN & BRYANT Attorneys at Law 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 754-8524 E-mail: rbryant@jsyc.com rturner@jsyc.com rmorelli@jsyc.com COCA-COLA CO: Class Action Over Fanta "100% Natural" Claims Tossed ------------------------------------------------------------------ Ariel Radow, Esq., of Frankfurt Kurnit Klein & Selz, in an article for Mondaq, disclosed that don't you wanna, wanna another false advertising suit involving a "100% natural" claim? A New York federal court dismissed a suit over assertions that Fanta's pina colada-flavored drink is 100% naturally flavored. Specifically, Plaintiffs filed suit in October 2021 against the The Coca-Cola Co. claiming its pina colada-flavored Fanta drink's "100% natural" labeling is false, deceptive, and misleading because the product contains artificial ingredients. The court said consumers' allegations were "bare" and "unsubstantiated," lacking factual support. The complaint alleges that the pina colada-flavored drink represents on the label as containing "100% Natural Flavors" with the claim sitting above pictures of half a coconut a wedge of pineapple. Because of these representations, Plaintiff said, "consumers expect only natural flavors, because that's what the label says." The suit claimed the product actually contains artificial flavoring "to help make the product taste tart and fruity, like the pictured fruits taste naturally," as well as "to create, enhance, simulate, and/or reinforce the sweet, fruity, and tart taste that consumers associate with the pictured fruits." Specifically, the allegations include that the product contains artificial malic acid rather than natural malic acid. The Court determined that the suit failed to allege that a reasonable consumer would be misled by the product's label, stating that the Plaintiff makes bare, unsubstantiated allegations about the possibility that the product contains artificial malic acid, without additional factual support from product testing. The opinion states, "Even taking the allegations as true -- as this Court must -- at a motion to dismiss, the allegations in the instant Complaint are a far cry from raising 'any factually substantiated allegations' that the Product contains artificial malic acid, rather than natural malic acid." The suit was dismissed with prejudice. Check out some other "natural" claim suit examples, including those involving a fruit punch water enhancer product, chicken, toothpaste, and potato chips. Janie Hawkins v. the Coca-Cola Co., case number 7:21-cv-08788, in the U.S. District Court for the Southern District of New York. "Even taking the allegations as true -- as this Court must -- at a motion to dismiss, the allegations in the instant Complaint are a far cry from raising 'any factually substantiated allegations'"[GN] CONAGRA BRANDS: Richburg and Ruiz Suits Dismissed With Prejudice ---------------------------------------------------------------- In the cases, KATHY RICHBURG, ADRIANA GAMBOA, JEFFREY KOENIG, and CINDY McGLONE, individually and on behalf of all others similarly situated, Plaintiffs v. CONAGRA BRANDS, INC., Defendant. JULIE RUIZ, individually and on behalf of all others similarly situated, Plaintiff v. CONAGRA BRANDS, INC., Defendant, Case No. 22 CV 2420, No. 22 CV 2421 (N.D. Ill.), Judge Robert W. Gettleman of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to dismiss all counts of both complaints with prejudice. Before the Court are motions from two related cases: Richburg v. Conagra Brands, Inc., 22 CV 2420, and Ruiz v. Conagra Brands, Inc., 22 CV 2421. In Richburg, Plaintiffs Kathy Richburg, Adriana Gamboa, Jeffrey Koenig, and Cindy McGlone, individually and on behalf of all others similarly situated, bring a ten-count class action complaint against the Defendant. The Richburg Plaintiffs allege that the Defendant falsely and misleadingly marketed and labeled its Orville Redenbacher's(R) microwave popcorn products. The Plaintiffs bring individual and class claims under consumer fraud and deceptive trade practice statutes in Illinois (Counts I and II), California (Counts III, IV, and V), New York (Counts VI and VII), Florida (Count VIII), in addition to a multi-state consumer protection class (Count IX) and nationwide class (Count XI). In Ruiz, Plaintiff Julie Ruiz, individually and on behalf of all others similarly situated, brings a five-count class action complaint against the Defendant. She alleges that the Defendant falsely and misleadingly marketed and labeled its Angie's BOOMCHICKAPOP(R) microwave popcorn products. Ruiz brings individual and class claims under California consumer fraud and deceptive trade practice statutes (Counts I, II, and III), in addition to a multi-state consumer protection class (Count IV) and nationwide class (Count V). In both Richburg and Ruiz, the Defendant moves to dismiss all counts of each complaint, in addition to requesting judicial notice of the Food & Drug Administration's document entitled "Authorized Uses of PFAS in Food Contact Applications" in each case. Judge Gettleman begins by taking judicial notice of the FDA document entitled, "Authorized Uses of PFAS in Food Contact Applications," which is available at https://www.fda.gov/food/chemical-contaminants-food/authorized-uses-pfas-food-contact-applications. This document states that "the FDA has authorized specific PFAS for use in specific food contact applications," expressly including microwave popcorn bags. The document states that the FDA "conducts a rigorous scientific review before they are authorized for the market," which includes data on migration of the food contact substance "from its intended use and other sources of dietary exposure." Moreover, food contact substances are generally regulated by the FDA as food additives due to "their potential to migrate into food." According to the document, in paper and paperboard packaging, small PFAS "sidechains" can detach from non-PFAS polymers in the packaging, resulting in the potential for PFAS migration to food. Judge Gettleman states that the judicially noticed FDA document may answer the Defendant's question regarding the type of PFAS at issue, where it indicates that in paper and paperboard packaging, small PFAS "sidechains" result in the "potential" for PFAS migration to food. Next, Judge Gettleman evaluates the Defendant's motions to dismiss all counts of the complaints. The Defendant argues that the Court should dismiss the complaints for various reasons: (1) the Plaintiffs lack standing under Article III of the U.S. Constitution; (2) the Plaintiffs have not plausibly alleged the presence of PFAS in the products; (3) the challenged statements and omissions cannot mislead a reasonable consumer; (4) the Plaintiffs' claims are expressly preempted; and (5) other miscellaneous reasons. Judge Gettleman agrees with the Defendant and grants its motion to dismiss all counts of both complaints. Assuming as true that the microwave popping bags contain PFAS, that such PFAS migrates into the popcorn, and that the popcorn subsequently contains non-incidental, harmful PFAS levels, the question is whether reasonable consumers would consider such undisputedly artificial, migratory chemicals to be an "ingredient" in the challenged food products based on the packages' representation that the products contain "only real ingredients" and "100% ingredients from natural sources." Judge Gettleman concludes that such an interpretation is implausible in light of the FDA's exemption of migratory substances from the mandated list of "ingredients" on food product packaging. Put another way, the representation on the packaging is correct as a matter of law. Thus, the Court does not need to evaluate whether the Plaintiffs' claims are preempted by federal statute. Moreover, because the Plaintiffs do not allege independent theories of unjust enrichment, Judge Gettleman also dismisses the Plaintiffs' unjust enrichment claims because he dismisses all other claims in both complaints. For these reasons, Judge Gettleman grants the Defendant's requests for judicial notice and grants its motions to dismiss both complaints, with prejudice. A full-text copy of the Court's Feb. 8, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/2p8p9het from Leagle.com. CONAGRA BRANDS: Settlement Claims Filing Deadline Set on May 22 --------------------------------------------------------------- Emily O'Brien, writing for Don't Waste Your Money, reports that people make mistakes -- and so do companies. But since the errors companies may make can affect many of their customers, they can be very costly. Civil class-action lawsuits are filed all the time to allow customers to recoup losses due to common injuries and inconveniences as a result of a company's widespread practices. In a class-action lawsuit, a plaintiff or several plaintiffs represent an entire group, or class, of people. If a business loses the case or chooses to settle outside of court without admitting fault, it generally sets aside a large amount of money from which settlements are distributed to all customers represented by the plaintiffs. However, just because money is exchanged doesn't necessarily mean you're entitled to receive payment. Payments are divided among affected class members, so they're likely to only be a fraction of the payout. It's still worth receiving, though -- when it comes to keeping money in the bank, every little bit helps. To be eligible for a portion of the settlement, you'll need to see if you qualify. This process may be as simple as filling out a short online form. Remember, these are legal documents and you must tell the truth about how you've been affected and the damages you've experienced. Some class-action lawsuits may later ask you to provide proof of your expenditures as well. Note that if you accept settlement money, you are waiving your right to file your own related lawsuit. If you're looking to see if you might be entitled to free money, here is a list of 10 class-action settlements that you may qualify for. Wesson Cooking Oil If you reside in one of the 11 different states involved in this lawsuit and bought the popular Wesson brand cooking oil from Conagra foods, you may be able to file a claim. The lawsuit against Conagra claims that the company violated certain laws in the marketing, advertising and sale of Wesson cooking oils by stating they were natural, even though they used genetically-modified ingredients. Customers may receive monetary damages from a $3 million settlement fund if they live in Colorado, California, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota or Texas. You must have purchased Wesson oil in the decade or so before July 1, 2017, to be eligible to receive a settlement (the actual time period varies per state). To participate, fill out this form -- https://www.wessonoilsettlement.com/ -- by May 22. Circle K Store Employment Current and former Circle K convenience store workers who feel they have been discriminated against may be entitled to part of an $8 million settlement. The settlement benefits Circle K workers who sought reasonable accommodations for a disability or pregnancy and were subsequently fired between July 10, 2009, and Sept. 26, 2022. The US Equal Employment Opportunity Commission (EEOC) says Circle K violated the Americans with Disabilities Act, Title VII and the Pregnancy Discrimination Act. Circle K has admitted no wrongdoing in its settlement of the suit. Current and former employees who were terminated between July 10, 2009, and Sept. 25, 2022, should file a claim by Feb. 26. If eligible under conditions set by the EEOC, they may receive monetary damages as determined by a settlement administrator. American Airlines Baggage Fees If you booked a plane ticket with American Airlines between Feb. 23, 2017, and April 9, 2020, you might have been charged an unnecessary baggage fee. Certain customers are allowed free bag check-in when flying, but plaintiffs claim American didn't honor this part of the contract. As a result of a settlement, affected customers may receive a 100% refund of those baggage fees. Payments totaling $7.5 million may be provided for all eligible customers in the class. The deadline to file this claim is right around the corner: Feb. 22. Thinx Period Underwear Thinx arrived at a $5 million settlement late last year in a suit that alleged that per- and polyfluoroalkyl substances (PFAS) were present in the company's products. Studies have linked PFAS to a higher risk of cancer, reproductive problems, liver and immune system damage and other health issues. Thinx says PFAS are not in its product design and that it takes measures to ensure they're not added, but they've been ordered to reimburse customers under the terms of the settlement. The settlement affects customers who bought Thinx underwear between Nov. 12, 2016, and Nov. 28, 2022. Customers can get a $7 refund for each purchase up to three pairs of period underwear if proof of purchase is provided. They can get a $3.50 refund for each purchase up to three pairs if no proof of purchase is provided. Customers can also get a voucher for 35% off purchases of up to $150 in eligible Thinx products during a single transaction on its website. The deadline to file is April 12. Apple Macbook Macbook owners who purchased laptop models between 2015 and 2019 with a faulty keyboard may be eligible to receive part of the settlement. These laptops in question in this class-action suit used "butterfly" technology in their keyboards. The term refers to the shape of the hardware under each key, which many users found to be quite troublesome. Thanks to a $50 million fund, Macbook users who got repairs that didn't fix the problems can receive up to $395. Specifically, those who received two or more top case replacements in the four years following their purchase can get the maximum amount. Those who received one top case replacement or one or more cap replacements can receive $125, and those who received one cap replacement can get $50. See if you qualify here. You must submit a claim by March 6. All-Clad Cookware Recent purchasers of All-Clad's D3, D5 and LTD Cookware may be entitled to compensation. The company claimed these products were dishwasher-safe, but when cleaned in one, some of the metal cooking layers allegedly became thin and sharp, especially along the rim. As part of the proposed settlement, All-Clad will set aside $4 million for refunds. Customers have several options: They can exchange damaged cookware for new and get a $75 refund; they can exchange damaged cookware for a hard-anodized five-piece frying pan set or a 13-piece cookware set; or they can return the cookware and get 50% off all purchases up to $1,200 for any products on All-Clad's website. Customers who threw the cookware out instead of returning it can still get 35% off purchases up to $750 with proof of purchase. You are eligible if you live in the U.S. and purchased the items between Jan. 1, 2015 and July 29, 2022. Submit a claim form by March 27. Toyota Prius If you own or lease a 2010-2015 Prius or 2012-2017 Prius V (or did so previously), you may be eligible for benefits from a lawsuit concerning allegedly defective intelligence power modules (IPMs)/inverters that were installed in these cars. The settlement dictates that Toyota will pay for repairs and replacements, plus related towing and rental car expenses. Toyota is also putting a new Customer Confidence Program in place that will extend the warranty for the IPMs and inverters installed in these vehicles and pay for towing/loaners. The deadline to make your claim is May 12. Nestle Coffee-Mate Powder Creamer This class-action suit alleges that certain Nestle Coffee-mate products contained fewer servings than advertised. So if you purchased powdered creamer products between Jan. 1, 2017 and Dec. 8, 2022, you may benefit. The list of qualifying creamers includes French Vanilla, Caramel Latte, Hazelnut, Original, Vanilla Caramel, Peppermint Mocha, Creamy Chocolate, Caramel and Coconut, and Pumpkin Spice, along with some of the sugar-free versions of these flavors. The lawsuit resulted in changes in the labeling on the Coffee mate creamer products and established an amount of $10 million to pay individuals who purchased the brand's products for personal use between Jan. 1, 2017, and Dec. 8, 2022. Fill out the claim form by March 14. Toyota And Lexus Models With Denso Fuel Pumps This class-action lawsuit against Toyota covers various vehicles — including Toyota and Lexus models — that were equipped with faulty Denso brand fuel pumps with the part number prefixes 23220- and/or 23221-. Toyota recalled 2.7 million cars because the fuel pumps allegedly crack and degrade, resulting in rough engine running, an engine that fails to start, or an engine that stalls at low speeds. The proposed settlement offers a Customer Support Program to provide coverage of repairs for 15 years from the date of the original sale, or an Extended new Parts Warranty of 15 years or 150,000 total odometer miles. Towing and loaners are provided as well. The settlement also provides for reimbursement if you repaired or replaced a fuel pump in a covered vehicle. If you own a Toyota or Lexus, fill out this form by March 21. Volkswagen/Audi Data Breach Did you receive notice from Volkswagen and/or Audi in June of 2021 that your personal data may have been exposed in a data breach between August 2019 and May 2021? This breach affected more than 3 million Audi owners and resulted in a class-action lawsuit. A $3.5 million settlement fund has been established to pay monetary awards to class members — up to $350 for California customers whose information was exposed. Nationwide customers can receive cash payments of $80 or $20, depending on what type of information was exposed. Customers who experienced out-of-pocket losses from identity theft may also seek reimbursement. Shift Digital, which was named as a defendant, is taking steps to secure the personal information of users. File your claim by April 12 if you were affected. Do you fit the requirements for any of these class-action lawsuits? If so, don't hesitate to accept the free money and services that are on the table. [GN] CORECIVIC INC: Modifications of Scheduling Order Sought ------------------------------------------------------- In the class action lawsuit captioned as Kathleen Bliss, on behalf of herself, the Proposed Nationwide Rule 23 Class, and the Proposed Nevada Subclass, v. CoreCivic, Inc., Case No. 2:18-cv-01280-JAD-EJY (D. Nev.), the parties request that the Court adopt the modifications to the scheduling order with respect to Defendant's expert disclosures and both parties' class certification briefing: Filing Current Proposed Deadline Deadline Plaintiff's opening class March 31, 2023 June 2, 2023 certification brief Defendant's class May 1, 2023 July 14, 2023 certification response brief Plaintiff's class May 31, 2023 August 14, 2023 certification reply brief CoreCivic is a company that owns and manages private prisons and detention centers and operates others on a concession basis. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3KeEXrf at no extra charge.[CC] The Plaintiff is represented by: Matthew H. Morgan, Esq. Anna P. Prakash, Esq. Charles A. Delbridge, Esq. Rebekah L. Bailey, Esq. Charles J. O'Meara, Esq. Matthew C. Helland, Esq. NICHOLS KASTER, PLLP 4700 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: morgan@nka.com aprakash@nka.com cdelbridge@nka.com bailey@nka.com comeara@nka.com helland@nka.com - and - Michael Hodgson, Esq. THE HODGSON LAW FIRM, LLC 3609 SW Pryor Road Lee's Summit, MO 64082 Telephone: (816) 600-0117 E-mail: mike@thehodgsonlawfirm.com - and - Lance D. Sandage, Esq. SANDAGE LAW LLC 1600 Genessee Street, Suite 655 Kansas City, MO 64102 Telephone: 816.753.0800 E-mail: lance@sandagelaw.com - and - Joseph K. Eischens, Esq. LAW OFFICE OF JOSEPH K. EISCHENS 8013 Park Ridge Dr. Parkville, MO 64152 Telephone: (816) 945-6393 E-mail: joe@jkemediation.com - and - Paul S. Padda, Esq. PAUL PADDA LAW, PLLC 4560 South Decatur Blvd., Suite 300 Las Vegas, NV 89103 Telephone: (702) 366-1888 E-mail: psp@paulpaddalaw.com The Defendant is represented by: Daniel P. Struck, Esq. Rachel Love, Esq. Jacob B. Lee, Esq. Ashlee B. Hesman, Esq. Anne M. Orcutt, Esq. Eden G. Cohen, Esq. STRUCK LOVE BOJANOWSKI & ACEDO, PLC 3100 West Ray Road, Suite 300 Chandler, AZ 85226 E-mail: dstruck@strucklove.com rlove@strucklove.com jlee@strucklove.com ahesman@strucklove.com aorcutt@strucklove.com ecohen@strucklove.com - and - Gina G. Winspear, Esq. DENNETT WINSPEAR 3301 North Buffalo Dr., Suite 195 Las Vegas, NV 89129 E-mail: gwinspear@dennettwinspear.com CORIZON INC: Denial of Kensu's Bid for Relief From Judgment Upheld ------------------------------------------------------------------ In the case, TEMUJIN KENSU, Plaintiff-Appellant v. CORIZON INC., et al., Defendants-Appellees, Case No. 22-1493 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit affirms the district court's denial of Kensu's Rule 60(b)(1) motion for relief from judgment. The case was originally a class action on behalf of prisoners housed within the Michigan Department of Corrections, but Kensu dismissed the class claims and kept his individual Eighth Amendment claim. Kensu claims that the Defendants unreasonably denied him access to medically necessary treatment and were deliberately indifferent to his serious medical needs. He alleges that their unconstitutional practices, policies, and customs are meant to maximize profit at the expense of prisoners' health. The Defendants moved for summary judgment on July 30, 2021. Around that same time, Kensu's counsel suddenly lost vision in his right eye, which led to a brief hospitalization and several doctor visits locally and in Iowa. Because his counsel is the only attorney at his firm, his staff filed several motions for emergency continuance for him in other cases. However, on Aug. 16, 2021, he realized he had not filed for a continuance in the case -- the same week the response to the motion for summary judgment was due. Despite his intent to file the response in opposition, because he was in Iowa for medical appointments, he missed the Aug. 20, 2021, deadline. The district court granted the Appellees' motion for summary judgment on Oct. 18, 2021. Four days after the district court granted summary judgment, Kensu filed a Rule 60(b)(1) motion for relief from judgment. The district court denied the motion. It concluded that the failure to file a response was not due to excusable neglect because the counsel had ample time prior to the deadline to notify the court, ask for an emergency continuance, or seek leave to file a late response, but he did not, despite doing so in several other cases. It determined that the counsel's "accidental neglect," forgetfulness, or carelessness do not constitute excusable neglect. The court also held that, even if it found excusable neglect, Kensu did not have a meritorious underlying claim because he did not show a causal connection between the prison policy and his alleged injury. Kensu timely appealed the denial of his Rule 60(b)(1) motion. He argues that his attorney's sudden medical issues suffice to show excusable neglect for his failing to file a timely response to the Defendants' motion for summary judgment. The Sixth Circuit opines that whether the counsel was culpable -- that is, whether his conduct amounted to excusable neglect -- presents an unusually close question. Because Kensu cannot obtain the relief he seeks unless he can present evidence that he has a meritorious underlying claim -- even if the neglect were held to be excusable -- the Sixth Circuit reviews the district court's conclusion that he did not. Kensu alleges that the Defendants engage in policies, practices, or customs that result in their being deliberately indifferent to his serious medical needs. Besides alleging that the staff are purposely refraining from treating him, falsifying records, and taking away approved devices, he alleges that the Defendants engage in the following policies, practices, or customs: A. Deferring 90% to 99% of all physician-recommended referrals for surgery or consultations with specialists; and B. Denying any outpatient surgery that required an overnight stay. C. Ignoring treatment recommendations of specialists selected by Defendants to assess the medical condition of Plaintiff and the Class. D. Disguising treatment denials as `deferments' in which prisoners never get needed treatment, despite recommendations by their treating physicians. The Sixth Circuit opines that even if these policies do exist, Kensu needed to provide at least some evidence that his medical needs have been denied because of one or more of those policies. He failed to do so. Although he attached to his Rule 60(b) motion his proposed Response in Opposition to the Defendants' Motion for Summary Judgment, he provided no documentation to connect the dots between one of these alleged policies and the medical care he claims to have been denied. Further, some of Kensu's complaints appear to be disagreement with how he is being treated, which is not sufficient to show a constitutional violation. Without at least some admissible evidence upon which a jury could find in his favor, Kensu cannot demonstrate a meritorious claim. The district court therefore did not abuse its discretion when it denied Kensu's Rule 60(b)(1) motion. For the foregoing reasons, the Sixth Circuit affirms. A full-text copy of the Court's Feb. 7, 2023 Opinion is available at https://tinyurl.com/ycyjffnw from Leagle.com. CROSSCOUNTRY MORTGAGE: Case Management Order Entered in Johnstone ----------------------------------------------------------------- In the class action lawsuit captioned as LINDA JOHNSTONE, v. CROSSCOUNTRY MORTGAGE, LLC, Case No. 1:22-cv-01111-BMB (N.D. Ohio), the Hon. Judge Bridget Meehan Brennan entered an case management order: 1. The parties do not consent to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. section 636(c). 2. The pleadings shall be amended without leave of the Court and new parties shall be joined on or before February 15, 2023. 3. Electronically Stored Information. The parties agree to follow the default standard for discovery of electronically stored information. 4. All discovery into the individual merits ("Phase I") shall be completed by March 15, 2023. Phase I discovery shall be conducted according to the guidelines set forth in Local Rule 16.2 for cases assigned to this track. 5. The Phase I dispositive motion deadline is May 1, 2023. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3HZguDC at no extra charge.[CC] CSX TRANS: Seeks to Expedite Ruling on Class Cert Postponement -------------------------------------------------------------- In the class action lawsuit captioned as Jimmy Edwards, et al., v. CSX Transportation, Inc., Case No. 7:18-cv-00169-BO (E.D.N.C.), CSXT moves to expedite consideration of and ruling on its motion to postpone class certification proceedings pending resolution of summary judgment motion, or in the alternative, to Set class certification briefing schedule. 1. With discovery complete, on January 27, 2023, CSXT filed a motion for summary judgment. Later on January 27, 2023, plaintiffs filed a motion for class certification. 2. With its motion to postpone, CSXT requests that the Court postpone briefing and consideration of plaintiffs' motion for class certification pending resolution of CSXT's motion for summary judgment. 3. CSXT's motion to postpone alternatively requests (with plaintiffs' consent) that briefing on plaintiffs' motion for class certification proceed on the same schedule the Court has ordered for briefing on CSXT's motion for summary judgment. CSXT is a Class I freight railroad company operating in the Eastern United States and the Canadian provinces of Ontario and Quebec. A copy of the Defendant's motion dated Feb. 3, 2023 is available from PacerMonitor.com at https://bit.ly/3Z5p6PQ at no extra charge.[CC] The Defendant is represented by: April N. Ross, Esq. Scott L. Winkelman, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue N.W. Washington, D.C. 20004 Telephone: (202) 624-2500 Facsimile: (202) 628-5116 E-mail: aross@crowell.com swinkelman@crowell.com - and - Henry L. Kitchin, Jr., Esq. MCGUIREWOODS LLP Wilmington, NC 28401 Telephone: (910) 254-3800 Facsimile: (910) 254-3900 E-mail: hkitchin@mcguirewoods.com CVI SGP: Cotte Seeks to Certify Settlement Classes -------------------------------------------------- In the class action lawsuit captioned as AUGUSTO COTTE and MERCEDES HIDALGO, v. CVI SGP ACQUISITION TRUST; CVI SGPCO ACQUISITION TRUST; and JOHN DOES 1-10, Case No. 2:21-cv-00299-JNP-DAO (D. Utah), the Hon. Judge Jill N. Parrish entered an order certifying settlement classes, appointing the plaintiffs as class representatives, appointing class counsel, and providing for notice to class members. The Defendants allegedly filed debt collection lawsuits against over a hundred Utah residents without registering as collection agencies, bureaus, or offices pursuant to UTAH CODE ANN. Section 12-1-1. The Plaintiffs bring this action under the Utah Consumer Sales Practices Act ("UCSPA") and the Fair Debt Collection Practices Act ("FDCPA") to seek recovery for the violation of these borrowers' rights. On June 16, 2021, the Defendants filed a motion to dismiss Plaintiffs' claims. On February 15, 2022, the court granted this motion in part and denied it in part. While allowing claims under the FDCPA to move forward, the court found that the Plaintiffs' complaint did not contain sufficient allegations to support a claim under the UCSPA. The Plaintiffs sought to define the FDCPA class as: 1. All individuals; 2. Against whom a Defendant filed a debt collection lawsuit; 3. Where the lawsuit was filed in Utah; 4. To collect a 'debt' as defined by 15 U.S.C. section 1692(a)(5); 5. While said Defendant was unregistered as a debt collector pursuant to Utah Code sectyopn 12-1-1; and where the lawsuit was filed between April 10, 2020, and the date on which the Court enters a Preliminary Approval Order. And they sought to define the UCSPA class as: 1. All individuals; 2. Against whom a Defendant filed a debt collection lawsuit; 3. Where the lawsuit was filed in Utah; 4. To collect a debt incurred in connection with a "consumer transaction" as defined by Utah Code § 13-11-3(2); and 5. Where the lawsuit was filed between April 10, 2016, and the date on which the Court enters a Preliminary Approval Order. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3YE57b9 at no extra charge.[CC] DEPARTMENT OF HUMAN SERVICE: Chairse Suit Removed to D. Minnesota ----------------------------------------------------------------- The case styled as O'Shea Chairse, on behalf of himself and all others similarly situated v. Department of Human Service State of Minnesota, Minnesota Commissioner of Human Services, Jodi Harpstead, in her official and individual capacities, Case No. 27-CV-23-960 was removed from the Hennepin, to the U.S. District Court for the District of Minnesota on Feb. 13, 2023. The District Court Clerk assigned Case No. 0:23-cv-00355 to the proceeding. The nature of suit is stated as Other Civil Rights for the Civil Rights Act. The Minnesota Department of Human Services (DHS) -- https://mn.gov/dhs/ -- helps provide essential services to Minnesota's most vulnerable residents.[BN] The Plaintiff appears pro se. The Defendants are represented by: Emily Beth Anderson, Esq. OFFICE OF THE MINNESOTA ATTORNEY GENERAL 445 Minnesota Street, Suite 1400 Saint Paul, MN 55101 Phone: (651) 757-1374 Email: emily.anderson@ag.state.mn.us DERMSTORE LLC: Zagury Suit Removed to S.D. Florida -------------------------------------------------- The case styled as Natalie Zagury, individually and on behalf of all others similarly situated v. Dermstore LLC, was removed to the U.S. District Court for the Southern District of Florida on Feb. 13, 2023. The District Court Clerk assigned Case No. 1:23-cv-20582-XXXX to the proceeding. The nature of suit is stated as Other P.I. Dermstore -- https://www.dermstore.com/ -- is US web store which sells cosmetics and skin care products.[BN] The Plaintiff appears pro se. The Defendants are represented by: Christopher George Oprison, Esq. DLA Piper LLP (US) 200 South Biscayne Boulevard, Suite 2500 Miami, FL 33131-5341 Phone: (305) 423-8522 Fax: (305) 657-6366 Email: chris.oprison@dlapiper.com DMCG INC: Fails to Pay Proper Wages, Barraza-Benitez Suit Alleges ----------------------------------------------------------------- HECTOR M. BARRAZA-BENITEZ, individually and on behalf of all others similarly situated, Plaintiff v. DMCG, INC.; and BAIL HOTLINE BAIL BONDS, INC., Defendants, Case No. 23STCV032669 (Cal. Sup., Los Angeles Cty., Feb. 14, 2023) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Plaintiff Barraza-Benitez was employed by the Defendants as bail agent. DMC INC. operates as a consulting company. The Company specializes in information technology for the digital industry. [BN] The Plaintiff is represented by: Daniel J. Bass, Esq. Ronald W. Makarem, Esq. MAKAREM & ASSOCIATES, APLC 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025-1760 Telephone: (310) 312-0299 Facsimile: (310)-312-0296 - and - Michael F. Rahmanou, Esq. 9100 Wilshire Blvd., Ste 220 West Bldg. Beverly Hills, CA 90212 Telephone: (424) 777-3842 Facsimile: (424) 999-3088 DOLLAR GENERAL: Wright Suit Removed to M.D. Georgia --------------------------------------------------- The case styled as Mary Jones Wright, individually and on behalf of all other similarly situated v. Dollar General Corporation, Case No. SUCV2022001085 was removed from the Dougherty County Superior Court, to the U.S. District Court for the Middle District of Georgia on Feb. 14, 2023. The District Court Clerk assigned Case No. 1:23-cv-00027-LAG to the proceeding. The nature of suit is stated as Contract Product Liability. Dollar General Corporation -- https://www.dollargeneral.com/ -- is an American chain of variety stores headquartered in Goodlettsville, Tennessee.[BN] The Plaintiff is represented by: Robert Brent Irby, Esq. 2201 Arlington Ave S Birmingham, AL 35205 Phone: (205) 936-8281 Email: brent@irbylaw.net The Defendant is represented by: RICHARD C BEAULIEU, Esq. 1230 Peachtree St., Ne. Ste. 2100 Atlanta, GA 30309 Phone: (404) 443-5500 Email: rbeaulieu@mcguirewoods.com DOLLAR TREE: Dalton Files ADA Suit in D. Minnesota -------------------------------------------------- A class action lawsuit has been filed against Dollar Tree Stores, Inc. The case is styled as Julie Dalton, individually and on behalf of all others similarly situated v. Dollar Tree Stores, Inc., Case No. 0:23-cv-00368-KMM-LIB (D. Minn., Feb. 14, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dollar Tree, Inc. -- http://www.dollartree.com/-- is an American multi-price-point chain of discount variety stores.[BN] The Plaintiff is represented by: Chad Throndset, Esq. Patrick W. Michenfelder, Esq. THRONDSET MICHENFELDER, LLC One Central Avenue West, Suite 203 St. Michael, MN 55376 Phone: (763) 515-6110 Fax: (763) 226-2515 Email: chad@throndsetlaw.com pat@throndsetlaw.com - and - Jason D. Gustafson, Esq. THRONDSET & MICHENFELDER LAW OFFICE LLC One Central Avenue West, Suite 101 St. Michael, MN 55330 Phone: (763) 515-6110 Email: jason@throndsetlaw.com DOORDASH INC: Silva Sues Over Delivery Drivers' Unpaid Overtime --------------------------------------------------------------- RAFAEL SILVA, on behalf of himself and on behalf of all others similarly situated, Plaintiff v. DOORDASH, INC., Defendant, Case No. 6:23-cv-00104 (M.D. Fla., January 20, 2023) files this collective action complaint against the Defendant for its alleged willful violations of the Fair Labor Standards Act. The Plaintiff began working for the Defendant as a delivery driver in August 2021 and continues to work in this capacity. The Plaintiff alleges that he and other similarly situated delivery drivers were incorrectly classified by the Defendant as independent contractors. Although they worked more than 40 hours at various times, the Defendant deprived them of overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek. The Defendant also failed to make, keep, and preserve records with respect to each of its employees in a manner sufficient to determine their wages, hours, and other conditions of employment. The Plaintiff seeks to recover unpaid overtime wages, for himself and all other similarly situated delivery drivers, against the Defendant. The Plaintiff also seeks liquidated damages, pre-judgment interest, all costs and attorney's fees incurred in prosecuting these claims, and other relief as the Court deems just and equitable. Doordash, Inc. operates a nationwide food delivery service in Orange County, Florida. [BN] The Plaintiff is represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. Amanda E. Heystek, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Direct: (813) 337-7992 Main: (813) 224-0431 Fax: (813) 224-0431 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com aheystek@wfclaw.com gdesane@wfclaw.com ELAP SERVICES: Must File Class Cert Bid Response by March 15 ------------------------------------------------------------ In the class action lawsuit captioned as South Broward Hospital District v. Elap Services, LLC, et al., Case No. 0:20-cv-61007 (S.D. Fla.), the Hon. Judge Raag Singhal entered an order that the Defendants shall file a response to Plaintiff's motion for class certification by March 15, 2023. The nature of suit states Diversity-Other Contract. ELAP is a leading healthcare solution provider. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at at no extra charge.[CC] ESS TECH INC: Faces Budikiewicz Suit Over Drop in Share Price ------------------------------------------------------------- MICHAEL BUDUKIEWICZ, individually and on behalf of all others similarly situated, Plaintiff v. ESS TECH INC.; ERIC P. DRESSELHUYS; and AMIR MOFTAKHAR, Defendants, Case No. 3:23-cv-00234-HZ (D. Or., Feb. 15, 2023) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded ESS securities between August 11, 2022 and December 7, 2022, inclusive (the "Class Period"), the Plaintiff seeks to recover damages caused by the Defendants under the Securities and Exchange Act of 1934. The Plaintiff alleges in the complaint that the statements filed by the Defendants with the SEC were materially false or misleading because they misrepresented and failed to disclose adverse facts pertaining to the Debtors' business, operations, and prospects, which were known to the Defendants or recklessly disregarded by them. As a result of the Defendant's wrongful acts and omissions and the precipitous decline in the market value of the Debtors' securities, the Plaintiff and other Class members have suffered significant losses and damages. The price of ESS' stock fell 7.7 per cent to close at $2.64 per share on December, 2022, damaging investors. ESS TECH, INC. provides energy storage systems. The Company designs, builds, and deploys iron flow batteries for long-duration commercial and utility-scale energy storage applications requiring from 4 to 12 hours of flexible energy capacity. [BN] The Plaintiff is represented by: Jeffrey S. Ratliff, Esq. RANSOM GILBERTSON MARTIN & RATLIFF, LLP 5441 S. Macadam Avenue, Suite 301 Portland, OR 97239 Telephone: (503) 226-3664 FINANCIAL ASSISTANCE: Kitchen Files FDCPA Suit in S.D. Texas ------------------------------------------------------------ A class action lawsuit has been filed against Financial Assistance, Inc., et al. The case is styled as William Kitchen, individually and on behalf of all others similarly situated v. Financial Assistance, Inc., Case No. 4:23-cv-00555 (S.D. Tex., Feb. 14, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Financial Assistance, Inc. -- https://www.faicollect.com/ -- is a third-party debt collection agency based in Bellevue, Washington.[BN] The Plaintiff is represented by: Robert Yusko, Esq. Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ryusko@steinsakslegal.com ysaks@steinsakslegal.com FINWISE BANCORP: Caban Sues Over Unlawful Collection Practices -------------------------------------------------------------- EMILIO CABAN, individually and on behalf of all those similarly situated, Plaintiff v. FINWISE BANCORP, Defendant, Case No. CACE-23-000829 (Fla. 17th Jud. Cir. Ct., January 20, 2023) is a class action complaint brought against the Defendant for its alleged violations of the Florida Consumer Collection Practices Act. The Plaintiff has an alleged debt incurred primarily for personal, family, or household purposes. According to the complaint, the Defendant began attempting to collect the alleged debt by sending the Plaintiff an electronic mail communication on December 29, 2022. The Defendant's collection letter was sent from fw.servicing@upstart.com and delivered to the Plaintiff's personal e-mail address between the hours of 9:00 PM and 8:00 AM in the time zone of the Plaintiff without his consent, thereby violated Section 559.72(17) of the FCCPA. On behalf of himself and all other similarly situated, the Plaintiff requests relief and judgment that include statutory damages, reasonable attorneys' fees and costs, expert fees, and other relief that the Court deems appropriate under the circumstances. Finwise Bancorp. is a debt collector. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Jennifer G. Simil, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Tel: (954) 907-1136 E-mail: jibrael@jibraellaw.com jen@jibraellaw.com FLORISSANT, MO: Rogers' Report and Testimony Excluded in Baker -------------------------------------------------------------- In the class action lawsuit captioned as THOMAS BAKER, et al., v. CITY OF FLORISSANT, Case No. 4:16-cv-01693-NAB (E.D. Mo.), the Hon. Judge Nannette A. Baker entered an order denying Florissant's motion to disqualify and exclude the Report and Testimony of Dr. William Rogers and John Ward Economics. -- The plaintiffs' motion to exclude the Report and Testimony of Dr. Thomas R. Ireland is denied to the extent plaintiffs seek to exclude Dr. Ireland's report and testimony in toto, but granted consistent with the limitations set out in this Memorandum and Order. -- The Plaintiffs' characterization that Ireland provides only personal and not expert opinions in response to Dr. Rogers' opinions is understandable, especially given Dr. Ireland's admission that he did not review the materials or references cited by Dr. Rogers. Also, in Dr. Ireland's report he employs a strategy of condescension in an attempt to persuade the Court that all of Dr. Rogers' opinions are unreliable and not appropriate in litigation. Dr. Ireland does refer to his own economic background and expertise as the basis upon which he disagrees with Dr. Rogers' application of otherwise sound economic principles to the facts of this case. The reasonableness of Dr. Ireland's criticisms of Dr. Rogers' analysis and methods of calculation is a matter for the jury's consideration in weighing the evidence. However, the admissibility of Dr. Ireland's opinions is not without limitation. Dr. Ireland is not qualified to render an opinion as to what he believes is Dr. Rogers' intention in using economic methodologies in this case or Dr. Rogers' motivation in the selection of certain publications and references to support his opinions. A copy of the Court's order dated Feb. 1, 2023 is available from PacerMonitor.com at https://bit.ly/3XycbVI at no extra charge.[CC] FRESHWORKS INC: Scott+Scott Named Lead Counsel in Sundaram Suit --------------------------------------------------------------- In the case, MOHAN R. SUNDARAM, Plaintiff v. FRESHWORKS INC., et al., Defendants, Case No. 22-cv-06750-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California appoints Mohan R. Sundaram as the Lead Plaintiff and Scott+Scott LLP as the Lead Counsel. Before the Court are dueling motions to appoint lead plaintiff and lead counsel under the Private Securities Litigation Reform Act of 1995 ("PSLRA"). Two prospective class members seek appointment: Mohan R. Sundaram, the Plaintiff, who seeks appointment of Scott+Scott LLP as lead counsel, and Vivek Nagarajan, who seeks appointment of Pomerantz LLP as lead counsel. Freshworks is a Delaware corporation based in San Mateo, California. It provides customer support software and tools for small- and medium-sized businesses. In the class action complaint, Sundaram alleges that Freshworks' Offering Documents in connection with its IPO contained untrue statements of material facts or omitted to state other facts necessary to make the statements made not misleading, and were not prepared in accordance with the rules and regulations governing their preparation. To convince prospective investors of Freshworks' vitality, the Offering Documents touted Freshworks' continued growth in the lead up to the IPO, its "broad appeal," its "healthy" net dollar retention rates, and its year-over-year revenue growth rate. The class action complaint alleges that such statements were false and misleading because they omitted that, at the time of the IPO, Freshworks' net dollar retention rate had plateaued and its revenue growth rate was decelerating. Despite this, on Sept. 22, 2021, the Defendants priced the IPO at $36 per share, and filed the final prospectus for the IPO. After the company announced its earnings for the fourth quarter of 2021, which reported the growth deceleration, Freshworks' stock dropped 18%, to $18.41 per share. Sundaram brings claims under Sections 11, 12(a), and 15 of the Securities Act, "on behalf of a class consisting of all persons and entities that purchased, or otherwise acquired, Freshworks common stock issued in connection with the Company's IPO." On Jan. 3, 2023, Nagarajan and Sundaram filed the competing motions to appoint lead plaintiff and lead counsel at issue. Those motions are now fully briefed. Judge Breyer first addresses the PSLRA's financial loss requirement, and then the Rule 23(a) adequacy and typicality requirements. Sundaram argues that he suffered the greatest loss, calculating his losses at $32,840 based on a loss calculation method that tracks the remedy available under Section 12 of the Securities Act, one of the claims Sundaram brings in this action. But Nagarajan contends that he suffered the greatest loss, calculating his losses to be approximately $23,677, applying the statutory methodology for calculation of losses pursuant to Section 11 of the Securities Act, another claim brought in the action. Under Nagarajan's model, he alleges that Sundaram's losses would in fact be lower than Nagarajan's at $22,840, which Sundaram does not dispute. Thus the question is whether Cavanaugh's requirement that a calculation method be both rational and consistently applied requires that Nagarajan's Section 11 calculation method (as opposed to Sundaram's Section 12 method) be used -- if so, Nagarajan, rather than Sundaram, would be the class member with the "largest financial interest" and thus the presumptive lead plaintiff. Because either proposed calculation method may be applied under In re Cavanaugh, 306 F.3d 726, 729-31 (9th Cir. 2002), Judge Breyer examines both parties' fitness to serve as lead plaintiff under the Rule 23(a) requirements to determine whether either Sundaram or Nagarajan "otherwise satisfies the requirements of Rule 23. He finds that Sundaram meets both the adequacy and typicality requirements of Rule 23(a). Sundaram's injury is therefore similar to other prospective class members and Sundaram's selected counsel is qualified and experienced in prosecuting securities class actions. However, the same cannot be said of Nagarajan. Nagarajan has not plausibly alleged that his shares are traceable to the IPO and therefore, his claims are atypical. Thus, because Nagarajan does not meet the requirements of Rule 23(a), Judge Breyer appoints Sundaram as the Lead Plaintiff. Sundaram has selected Scott+Scott LLP, a fine with experience prosecuting complex securities class actions. Judge Breyer finds no reason to disapprove Sundaram's choice. Accordingly, he appoints Scott+Scott LLP as the Lead Counsel. For these reasons, Judge Breyer grants Sundaram's motion. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/nar9d2kz from Leagle.com. GATEWAY GENOMICS: Muse Telemarketing Suit Removed to M.D. Fla. -------------------------------------------------------------- The case styled AMANDA LYNN MUSE, individually and on behalf of all others similarly situated, Plaintiff v. GATEWAY GENOMICS, LLC, Defendant, Case No. 22-006106-CI, was removed from the Sixth Judicial Circuit Court in and for Pinellas County, Florida to the United States District Court for the Middle District of Florida on Feb. 16, 2023. The Clerk of Court for the Middle District of Florida assigned Case No. 8:23-cv-00353 to the proceeding. The Plaintiff's single-count complaint seeks relief from Defendant, on behalf of herself and a putative class of similarly-situated persons, for allegedly making or causing to be made multiple unlawful "telephonic sales calls" without the "prior express written consent" of Plaintiff and the putative class members, in purported violation of the Florida Telephone Solicitation Act. Gateway Genomics, LLC is a genetic testing and precision medicine company.[BN] The Defendant is represented by: Josh A. Migdal, Esq. Yaniv Adar, Esq., Esq. MARK MIGDAL & HAYDEN 80 S.W. 8th Street, Suite 1999 Miami, FL 33130 Telephone: (305) 374-0440 E-mail: josh@markmigdal.com yaniv@markmigdal.com GEISINGER HEALTH: Wins Summary Judgment on McWilliams' Return Claim ------------------------------------------------------------------- In the case, KAYLEE McWILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. GEISINGER HEALTH PLAN, and SOCRATES, INC., Defendants, Case No. 4:20-CV-01236 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania grants the Defendants' motion for summary judgment on McWilliams' Count VII. In Count VII, McWilliams demands that the Defendants return the money she reimbursed them. McWilliams sues Defendants Geisinger Health Plan ("GHP") and its subrogation agent, Socrates, alleging one cause of action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Section 1001 et seq. McWilliams was injured by a third-party tortfeasor. She sought and received compensation from GHP for her injuries through her father's insurance plan. McWilliams was insured through her father's employer, Big Heart Pet Brands, a subsidiary of the J.M. Smucker Co. J.M. Smucker had an employee welfare benefit plan -- termed the J.M. Smucker Master Health Plan -- that included a health insurance plan from GHP. GHP set out its coverage of J.M. Smucker employees and their dependents -- including McWilliams -- through a document known as the Group Subscription Certificate. Eventually, McWilliams sued and later settled with the tortfeasor who injured her. After the settlement, the Defendants demanded that McWilliams reimburse them for the payments they made pursuant to her insurance policy, relying on a subrogation clause in the Certificate that did not explicitly set out a right to reimbursement. They also obtained a lien against her personal injury recovery. McWilliams later negotiated with Socrates to reduce the lien amount by 30%. She then paid the Defendants the reduced sum, under protest. McWilliams' Second Amended Complaint alleged several ERISA causes of action. The Defendants previously moved to dismiss all claims in the SAC save McWilliams' demand that they return the money she reimbursed them (Count VII). The Court converted that motion into one for summary judgment and granted it, dismissing all claims except McWilliams' demand for monetary damages contained in Count VII. The Defendants now move for summary judgment on Count VII. Both parties appear to agree that the Court's legal analysis in its Nov. 16, 2022, opinion disposes of Count VII as well. However, McWilliams raises several arguments to ensure a clear record and that her arguments are preserved on appeal. McWilliams makes two arguments. First, she argues the Court erred by not applying the common-fund doctrine. Second, she argues the Defendants violated ERISA by failing to identify the J.M. Smucker Master Health Plan as the basis for their reimbursement demand. Judge Brann disagrees. First, he explains that in its prior opinion, the Court refused to apply the doctrine because the Defendants had already reduced their lien on Freitas' recovery by 25%. That appears to be precisely what McWilliams seeks: a "reduction of GHP's lien by its share of the Plaintiff's counsel's fees." She fails to explain why the 25% reduction the Defendants already agreed to is insufficient to satisfy the common-fund doctrine. Therefore, Judge Brann won't reconsider its prior decision not to apply to the common-fund doctrine to former plaintiff Lori Freitas' ERISA claim. Second, McWilliams does not allege that the Defendants denied her claim for benefits or issued an adverse benefit determination. She does allege -- and the Defendants do not appear to contest -- that the Defendants paid her claim. As the Court previously explained, it does not appear that seeking reimbursement from an insured is equivalent to denying a claim for benefits or issuing an adverse benefit determination, as to trigger section 1133(1) or section 2560.503-1(g). Judge Brann opines that the Defendants' right to seek reimbursement from McWilliams has nothing to do with the adequacy of her claim for benefits. Indeed, all of the cases McWilliams relies upon involve an insurance plan denying a claimant benefits. Without saying as much, McWilliams invites the Court to extend those benefit-denial cases to the reimbursement provisions relevant in the case. Judge Brann declines her invitation. If Congress wished its comprehensive benefit-denial procedures to also apply to reimbursement claims, it would have said so explicitly. Having addressed all of McWilliams' arguments, Judge Brann concludes that summary judgment is appropriate on Count VII. Therefore, he grants the Defendant's motion. An appropriate Order follows. A full-text copy of the Court's Feb. 8, 2023 Memorandum Opinion is available at https://tinyurl.com/4bahcjh4 from Leagle.com. GENWORTH LIFE: Settlement With Lang Objectors in Haney Suit OK'd ---------------------------------------------------------------- In the case, FRED HANEY, et al., Plaintiffs v. GENWORTH LIFE INSURANCE CO., et al., Defendants, Civil Action No. 3:22cv55 (E.D. Va.), Judge Robert E. Payne of the U.S. District Court for the Eastern District of Virginia, Richmond Division, grants the Joint Motion to Approve the Settlement with Lang Objectors. The matter is before the Court on Langs' Settlement Motion filed by the Plaintiffs, the Defendants, and Lonny and Carrol Lang. On Feb. 7, 2023, the Court provided an opportunity for the parties to provide argument on the Langs' Settlement Motion beyond the papers. Class Representatives Fred Haney, Marsha Merrill, Sylvia Rausch, Stephen Swenson, and Alan Wooten, individually and on behalf of a proposed class of Genworth Choice 2, Choice 2.1, California CADE, California Reprice, and California Unbundled policyholders as of Jan. 1, 2013, filed the class action against Defendants Genworth Life Insurance Co. ("GLIC") and Genworth Life Insurance Co. of New York ("GLICNY") (collectively "Genworth" or "Defendants"). Before the Complaint was filed, the parties engaged in three-days of mediation and extensive discovery that resulted in a Memorandum of Understanding ("MOU") that set forth the material terms of an agreement-in-principle to be incorporated into a formal Settlement Agreement for the Court's approval. The Complaint asserts two claims. Count One alleges a claim of fraudulent inducement by omission. Count Two is a claim for declaratory relief under 28 U.S.C. Section 2201. The Plaintiffs each have Choice 2, Choice 2.1, California CADE, California Reprice, or California Unbundled Long Term Care Insurance policies issued by Genworth. Long Term Care ("LTC") insurance is intended to defray the cost of home care, assisted living care, nursing home care, and other specialized skilled facility care required when an individual can no longer perform the basic activities of daily life. The Plaintiffs allege that, since 2013, Genworth has steadily and substantially increased the premiums on their LTC insurance policies. They also allege that, to avoid reporting a current negative loss recognition testing margin, Genworth relied almost entirely on billions of dollars in future rate increases to plug the hole in its reserves. However, say the Plaintiffs, Genworth's plan for those substantial future rate increases was never shared with Genworth's LTC policyholders. In other words, it is alleged that the undisclosed information was material to decisions that LTC policyholders made respecting whether, and to what extent, to renew or retain their LTC coverage; that the undisclosed information was necessary to make accurate the information that was disclosed; and that, therefore, the omissions made the disclosed information fraudulent. It is also alleged that Genworth intended that policyholders would rely on the knowingly inadequate disclosures in making the election among their policy choices. Armed with knowledge and evidence obtained in previous similar cases against Genworth, and after engaging in a period of confirmatory discovery, the Class Counsel filed the Plaintiffs' Motion to Direct Notice of Proposed Settlement to the Class, which the Court granted on May 2, 2022. On July 6, 2022, the parties submitted an Amended Settlement Agreement to amend the final Release. The Court preliminarily approved the Amended Settlement Agreement on July 7, 2022, and directed that notice be sent to the Class. On Nov. 17, 2022, the Court held a hearing to give objectors the opportunity to explain their objections, including counsel for the Langs, and for counsel to the parties to respond. The afternoon before that hearing, the parties informed the Court that an agreement had been reached with the following objectors: Michael Podoll, Jane Belkin, and Dr. David Friedman, James Perry, Thomas Toman, Doug and Bonnie Ebstyne, and William and Linda Dudley (collectively "settlement objectors"). The listed parties agreed that in exchange for making certain enhancements to the Special Election Options in the Amended Settlement Agreement, the objectors would withdraw their objections. That agreement has been approved and is incorporated in the Second Amended Settlement Agreement. The counsel for the objectors was also granted attorneys' fees, and each settlement objector was awarded a $7,500 incentive payment. In a Memorandum Opinion and Order issued on Dec. 12, 2022, the Court overruled the Langs' objections to the settlement except for the objection pertaining to attorneys' fees. On Dec. 13, 2022, during the final hearing, the counsel for the Langs renewed their objection to the attorneys' fees, arguing more specificity was needed. In a Memorandum Opinion and Order issued on Jan. 30, 2023, the Court overruled the Langs' objection to the attorneys' fees. The terms of the Langs' Settlement Agreement are as follows. As described in the Memorandum of Law in Support of Join Motion to Approve Settlement with the Lang Objectors filed on Jan. 30, 2023, the cash damages amount for the non-forfeiture option will increase from $1,150 to $1,250. Second, even though they are overruled, the Langs agree that all of their objections are withdrawn and will be denied as moot. Id. at 6. Third, the Langs agree not to further object to the settlement, file any appeals, or otherwise interfere with the settlement's finality. Lastly, Genworth agrees to pay the Langs an incentive payment of $7,500 each and attorneys' fees not to exceed $237,500, all paid separately from the payments to class members. The incentive payment and fees will be addressed in a separate memorandum opinion. The Court held a hearing on Langs' Settlement Motion on Feb. 7, 2023. Citing In re Jiffy Lube Sec. Litig., 927 F.2d 155, 159 (4th Cir. 1991), Judge Payne states that in assessing the adequacy of the proposed settlement, a court considers: (1) the relative strength of the plaintiffs' case on the merits; (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial; (3) the anticipated duration and expense of additional litigation; (4) the solvency of the defendant and the likelihood of recovery on a litigated judgment; and (5) the degree of opposition to the settlement. Under the Jiffy Lube factors, Judge Payne finds that the Langs' Settlement Agreement is fair, reasonable, and adequate. Therefore, he grants the Langs' Settlement Motion, and approves the settlement therein. Its terms will be included in the Third Amended Settlement Agreement. Judge Payne will address the Langs' request for attorneys' fees and incentive awards in a separate opinion. A full-text copy of the Court's Feb. 8, 2023 Memorandum Opinion is available at https://tinyurl.com/3d42wdkc from Leagle.com. GOLDEN STAR: Mejia Sues Over Unpaid Minimum and Overtime Wages -------------------------------------------------------------- Elver Benigno Zuniga Mejia, an individual, on behalf of himself and all other similarly situated, known and unknown v. GOLDEN STAR RESTAURANT, INC., an Illinois corporation d/b/a GOLDEN APPLE GRILL & BREAKFAST HOUSE, and ATHANASIOS DALAKOURAS, an individual, Case No. 1:23-cv-00865 (N.D. Ill., Feb. 13, 2023), is brought arising under the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and the Chicago Minimum Wage and Paid Sick Leave Ordinance ("CMWO"), for Defendants' failure to pay Plaintiff statutory minimum wages and overtime compensation for hours worked over 40 in a workweek. Based on his variable work schedules, Plaintiff regularly worked at least 60 hours in individual workweeks, and as much as 75 hours in individual workweeks. The Defendants imposed a dual wage payment scheme on the Plaintiff in which they paid a portion of the Plaintiff's wages with a payroll check, usually for 40 hours or 45 hours of work per week, and paid for the remainder of Plaintiff's work hours with unreported cash at his straight time hourly rate of pay. With respect to wages paid with a payroll check, the Defendants elected to pay the Plaintiff using a tip credit. Defendants paid hourly wages below the minimum wage and purported to use tips to make up the difference. However, Defendants committed numerous minimum wage and tip credit violations which invalidated the tip credit and required Defendants to pay Plaintiff, and other similarly situated employees, the full minimum wage. Defendants' violations included: paying insufficient direct wages; falsely recording tips as having been paid to Plaintiff, failing to pay any direct wages for certain hours of work; and, failing to notify Plaintiff of the tip credit rules and regulations. As a result of Defendants' payment schemes, Plaintiff was paid below the statutory minimum wage rates throughout his term of his employment. Additionally, Defendants did not compensate Plaintiff, and other non-exempt dishwashers, busboys, cleaners and kitchen staff employees, at one and one-half times their regular hourly rate of pay for hours worked in excess of 40 in individual workweeks, says the complaint. The Plaintiff worked as a dishwasher, busboy and cleaner at the Defendants' restaurant from the summer of 2019 through the end of October, 2022. The Defendants is an Illinois corporation that operates the Golden Apple Grill & Breakfast House restaurant, engaged in selling and serving prepared food and beverages, including alcoholic beverages, to customers for consumption on and off its premises.[BN] The Plaintiff is represented by: Timothy M. Nolan (No. 6194416) NOLAN LAW OFFICE 53 W. Jackson Blvd., Ste. 1137 Chicago, IL 60604 Phone: (312) 322-1100 Email: tnolan@nolanwagelaw.com GOLDEN STATE FC: Court Sets Class Certification Deadlines --------------------------------------------------------- In the class action lawsuit captioned as Trevino v. Golden State FC LLC, et al., Case No. 1:18-cv-00120 (E.D. Cal.), the Hon. Magistrate Judge Barbara A. McAuliffe entered an order setting class certification deadlines and hearings: -- A further status conference is set for April 4, 2023. -- The parties shall file a joint status report no later than March 28, 2023, to apprise the Court of the status of their discussions and to indicate whether the status conference should proceed as scheduled. -- The parties shall appear at the conference remotely with each party appearing either via Zoom video or Zoom telephone number. -- The parties will be provided with the Zoom ID and password by the Courtroom Deputy prior to the conference. The Zoom ID number and password are confidential and are not to be shared. The nature of suit states labor litigation.[CC] GREAT WOLF RESORTS: Faces Augustine Suit Over Wiretapping Violation ------------------------------------------------------------------- OPHELIA AUGUSTINE, individually and on behalf of others similarly situated, Plaintiff v. GREAT WOLF RESORTS, INC., Defendant, Case No. 3:23-cv-00281-DMS-BGS (S.D. Cal., Feb. 14, 2023) alleges violation of the Federal Wiretap Act and the California Invasion of Privacy Act. The Plaintiff alleges in the complaint that the Defendant illegally tapped, made an unauthorized connection to, intercepted and recorded the Plaintiff's and Class Members' electronic communications, when they visited the Defendant's website. The Defendant infringed upon the Plaintiff's and Class Members' rights to privacy codified in the Wiretap Act and CIPA, says the suit. GREAT WOLF RESORTS, INC. owns and operates resorts. The Company offers family-oriented suites, waterparks, arcades, restaurants, and spa facilities. Great Wolf Resorts serves customers in the United States. [BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP, APC 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Tel: (866) 219-3343 Email: Josh@SwigartLawGroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Tel: (619) 222-7429 GREENBOX LOAN: Fails to Pay Proper Wages, Davis Suit Alleges ------------------------------------------------------------ JASON DAVIS, individually and on behalf of all others similarly situated, Plaintiff v. GREENBOX LOAN INC.; and DOES 1 THROUGH 50, INCLUSIVE, Defendants, Case No. 23STCV03314 (Cal. Super., Los Angeles Cty., Feb. 15, 2023) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Plaintiff Davis was employed by the Defendants as account executive. GREENBOX LOAN INC. operates as a loan service company. [BN] The Plaintiff is represented by: Haig B. Kazandjian, Esq. Cathy Gonzalez, Esq. Diana Zadykyan, Esq. HAIG B. KAZANDJIAN LAWYERS, APC 801 North Brand Boulevard, Suite 970 Glendale, CA 91203 Telephone: (818) 696-2306 Facsimile: (818) 696-2307 Email: haig@hbklawyers.com cathy@hbklawyers.com diana@hbklawyers.com GROUNDHOG ENTERPRISES: Maxine Furs Files Suit in N.D. California ---------------------------------------------------------------- A class action lawsuit has been filed against Groundhog Enterprises, Inc. The case is styled as Maxine Furs of Hoover, Inc., individually and on behalf of all others similarly situated v. Groundhog Enterprises, Inc. D/B/A Merchant Lynx Services, Case No. 3:23-cv-00641 (N.D. Cal., Feb. 14, 2023). The nature of suit is stated as Other Contract for Breach of Contract. Groundhog Enterprises, Inc., doing business as Merchant Lynx Services -- https://merchantlynx.com/ -- provides credit and debit processing services.[BN] The Plaintiff is represented by: Michael Paul Cutler, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Avenue, Suite 300 Kansas City, MO 64112 Phone: (816) 701-1145 Fax: (816) 531-2372 Email: mcutler@wcllp.com abrane@wcllp.com HABERFELDE FORD: Morris Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against Haberfelde Ford. The case is styled as Passion Morris, individually, and on behalf of other members of the general public similarly situated v. Haberfelde Ford, Jim Burke Ford Lincoln, Case No. BCV-23-100471 (Cal. Super. Ct., Kern Cty., Feb. 14, 2023). The case type is stated as "Other Employment - Civil Unlimited." Haberfelde Ford, doing business as Jim Burke -- https://www.jimburkeford.com/ -- provides automotive services. The Company offers new and used automobiles, as well as auto parts and services.[BN] HARBOR FREIGHT: Allowed to Seal Opposition to Comes Class Cert Bid ------------------------------------------------------------------ In the class action lawsuit captioned as MEL COMES, DUANE THOMAS, and MARKEITH MITCHELL, on behalf of themselves and all similarly situated, v. HARBOR FREIGHT TOOLS USA, INC., Case No. 2:20-cv-05451-DMG-KK (C.D. Cal.), the Hon. Judge Dolly M. Gee entered an order granting HFT's application for leave to file portions of its opposition to Plaintiffs Mel Comes and Markeith Mitchell's motion to certify class and supporting exhibits under seal. 1. HFT has shown compelling reasons sufficient to overcome the presumption in favor of granting public access to these records. 2. The information sought to be sealed is non-public, competitively sensitive and proprietary business information of HFT and/or its affiliates that constitutes traditionally kept trade secrets, consistent with prevailing Ninth Circuit law. 3. Accordingly, HFT's application is granted. Pursuant to Local Rule 79-5.2.2(c), HFT shall e-file the unredacted documents listed below consistent with this Order within three days of this Order. Harbor Freight is a privately held tool and equipment retailer. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3KeJLwJ at no extra charge.[CC] HARBOR FREIGHT: Hearing on Bid to Exclude Expert Set for March 15 ----------------------------------------------------------------- In the class action lawsuit captioned as CLARENCE CARTER, MEL COMES, DUANE THOMAS, and MARKEITH MITCHELL, on behalf of themselves and all others similarly situated, v. HARBOR FREIGHT TOOLS USA, INC., Case No. 2:20-cv-05451-DMG-KK (C.D. Cal.), the Hon. Judge Dolly M. Gee entered an order approving stipulated briefing schedule for motion to exclude the Plaintiffs' expert Philip J. O'Keefe. 1. The Plaintiffs shall file their opposition to the motion to exclude Mr. O'Keefe on February 15, 2023. 2. The Defendant may file a reply to the motion by February 22, 2023. 3. The hearing on the motion to exclude shall be conducted concurrently with the Motion for Class Certification hearing, which remains scheduled for March 3, 2023 at 10:00 a.m. Harbor Freight is a privately held tool and equipment retailer. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3XBMF1I at no extra charge.[CC] HARLEY-DAVIDSON MOTOR: Heymer Suit Transferred to E.D. Wisconsin ---------------------------------------------------------------- The case styled as Edward Heymer, on behalf of himself and all others similarly situated v. Harley-Davidson Motor Company Group, LLC, Case No. 5:22-cv-02085 was transferred from the U.S. District Court for Central District of California, to the U.S. District Court for Eastern District of Wisconsin on Feb. 13, 2023. The District Court Clerk assigned Case No. 1:23-cv-00175-WCG to the proceeding. The nature of suit is stated as Other Fraud. Harley-Davidson Motor Company Group LLC produces and sells motorcycles. The Company offers sports bikes, heavyweight motorcycles, and other accessories.[BN] The Plaintiff is represented by: Elizabeth A. McKenna, Esq. MILBERGCOLEMAN BRYSON PHILLIPS GROSSMAN PLLC 800 S. Gay St.-Ste. 1100 Knoxville, TN 37929 Phone: (212) 594-5300 Fax: (212) 868-1229 Email: emckenna@milberg.com - and - Michael A. Acciavatti, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 405 E 50th St. New York, NY 10022 Phone: (610) 842-5801 Fax: (212) 868-1229 Email: macciavatti@milberg.com - and - Peggy J. Wedgworth, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 100 Garden City Pl-Ste 500 Garden City, NY 11530 Phone: (212) 594-5300 Email: pwedgworth@milberg.com HERITAGE PROVIDER: Fails to Secure Customers' Info, Abedi Says -------------------------------------------------------------- SAM ABEDI and FARNAZ DOROODIAN, on behalf of themselves and all others similarly situated v. HERITAGE PROVIDER NETWORK, INC. and REGAL MEDICAL GROUP, INC., Case No. 2:23-cv-01113 (Court, Feb. 14, 2023) alleges that Defendants failed to safeguard, monitor, maintain and protect customers' highly sensitive Personal Health Information (PHI) and Personally Identifiable Information (PII). On December 1, 2022, four medical groups owned or operated by or otherwise affiliated with Defendants -- Regal Medical Group, Lakeside Medical organization, ADOC Medical Group, and Greater Covina Medical -- were impacted by a cyberattack during which criminal hackers obtained access to and ultimately stole the Plaintiffs' and the Class's Sensitive Information. The Defendants discovered the Data Breach on December 8, 2022, several days after having experienced difficulties accessing their servers, including servers maintaining patients' Sensitive Information. Although the Data Breach began in December of 2022 and despite Defendants' knowledge that the hackers stole patient information, the Defendants waited until February 1, 2023, to notify the impacted patients, says the suit. As a result of the Defendants' conduct, the Plaintiffs and the Class have and will be required to continue to undertake time-consuming and, often costly, efforts to mitigate the actual and potential harm caused by the Data Breach's exposure of their Sensitive Information, including placing freezes and alerts with credit reporting agencies, contacting their financial institutions, closing or modifying financial accounts, reviewing and monitoring their credit reports and accounts for unauthorized activity, changing passwords on potentially impacted websites and applications, and requesting and maintaining accurate medical records. The Plaintiffs and the Class bring this action to recover for the harm they suffered, and assert the following claims: negligence, negligence per se, violations of the California Consumer Privacy Act and the California's Unfair Competition Law. Plaintiffs Sam Abedi and Farnaz Doroodian are members of the Defendants' medical group and has received medical services from providers within Defendants' medical network. HPN administers health care groups in California, including Regal Medical Group, ADOC Medical Group, and Lakeside Medical Group.[BN] The Plaintiffs are represented by: Caleb Marker, Esq. Brian C. Gudmundson, Esq. Jason P. Johnston, Esq. Michael J. Laird, Esq. Rachel K. Tack, Esq. ZIMMERMAN REED LLP 6420 Wilshire Blvd., Suite 1080 Los Angeles, CA 90048 Telephone: (877) 500-8780 Facsimile: (877) 500-8781 E-mail: caleb.marker@zimmreed.com brian.gudmundson@zimmreed.com jason.johnston@zimmreed.com michael.laird@zimmreed.com rachel.tack@zimmreed.com - and - Christopher D. Jennings, Esq. THE JOHNSON FIRM 610 President Clinton Avenue, Suite 300 Little Rock, AR 72201 Telephone: (501) 372-1300 E-mail: chris@yourattorney.com HEXO CORP: Fasken Discusses Securities Class Action Ruling ---------------------------------------------------------- Fasken disclosed that on January 23, 2023, the Superior Court of Quebec refused to authorize (certify) a securities class action brought against HEXO Corp., a licensed producer and distributor of medical and recreational cannabis, and its Chief Executive Officer, Mr. Sebastien St-Louis. The Plaintiff sought authorization to institute a class action against Defendants for damages resulting from misrepresentations and breaches of disclosure obligations in both the primary and secondary markets, under Division II of the Quebec Securities Act [2] (QSA) and under article 1457 of the Civil Code of Quebec (CCQ). Section 225.4 QSA, like the other provincial securities acts, allows for secondary market claims on authorization from the court where the plaintiffs are in good faith and there is a reasonable possibility that the action will be resolved in their favor on the merits. While the ordinary rules of civil liability require the Plaintiff to prove fault, damages, and a causal link between the two, the QSA regime facilitates an investor's recourse in the secondary market, by removing the civil liability requirements requiring a plaintiff to prove a causal link between reliance on false or misleading information and the damage he or she has suffered. The Court agreed with the Defendants that there was "no reasonable possibility" that the secondary market claim filed under the QSA had a reasonable chance of success, or that the Plaintiff had demonstrated an arguable case for a primary market class action or a civil liability class action for misrepresentation under the general principles at civil law. Because the test for instituting a statutory claim under the QSA is more demanding than pursuant to the general rules respecting class actions (a reasonable possibility of success rather than a mere arguable case), the practice is for the court to begin its analysis with the claims under the Securities Act. Plaintiff's first ground was based on the supply agreement between HEXO and the Societe Quebecoise du Cannabis ("SQDC"). The Cannabis Supply Agreement Between HEXO and the Societe Quebecoise du Cannabis HEXO signed a five-year supply agreement with the SQDC, the province-owned corporation tasked with selling cannabis products in Quebec. Pursuant to this agreement, HEXO agreed to supply the SQDC with 20,000 kg of products in the first-year post-legalization, 35,000 kg in the second year, and 45,000 kg in the third year. The agreement contained a take or pay clause. In the press release announcing this agreement, HEXO added that SQDC had the right to terminate the agreement in certain circumstances and inserted cautionary language that one should not read the agreement as an assurance that actual product volumes will be supplied by HEXO. Plaintiff claimed that HEXO had made misrepresentations [3] with respect to the supply agreement, by stating that the agreement "guaranteed" revenues associated with the sale of 20,000 kg of cannabis products. The Court disagreed that HEXO had misled investors, noting that "[t]he fact that the SQDC did not fulfill its first-year purchase commitment or that defendants decided not to enforce the take or pay features are not evidence that the public statement were untrue or misleading at the time they were made. As stated previously, the Court does not make assessments with the benefit of hindsight." The Acquisition of Newstrike: The Regulatory Issues HEXO purchased Newstrike, another publicly traded Canadian cannabis producer in 2019. This acquisition resulted in the addition of 470,000 square feet in production space. HEXO announced that this acquisition would boost production and revenues. Later it was revealed that a block amounting to 17% of the Newstrike Niagara Facility and 4% of the cultivation area was not adequately licensed. Plaintiff, however, did not allege any facts or provided any credible evidence that Defendants knew or should have known about the licensing deficiencies. To the contrary, Plaintiff's evidence showed that the problem only came to light on the very day that it was first disclosed by HEXO. The Court also noted that, at the time of statements, HEXO had temporarily suspended its operations of the Niagara facilities as part of cost-cutting measures, making the licensing deficiencies entirely immaterial as "[c]ommon sense dictates that such information could not reasonably be expected to have any impact on the investor decision to buy or sell HEXO securities let alone a significant one." HEXO did not consider this situation to merit disclosure and the Court agreed that by not disclosing it, HEXO did not fail to omit a material fact [5]. The Court also agreed that HEXO did not fail to disclose a material change in relation to the same facts. Newstrike Synergies, Q4 Revenue Projections for 2019, and Fiscal Guidance for 2020 Plaintiff further claimed that the "accretive synergies" mentioned by HEXO in the amount of $10 million were a misrepresentation. However, as pointed out by Justice Conte, he does not allege misrepresentation of a material fact, appearing only to rely on the fact that the synergies were not realized in order to conclude that the statement was untrue or misleading. This, as Justice Conte notes, is "backwards reasoning", just like the estimates or forecasts that were not realized. Plaintiff argued that HEXO should have revised its revenue projections downward but as Justice Conte notes, "a change in financial results is not, in itself, a change in the issuer's business, operations or capital, there can be no breach of a timely disclosure." Plaintiff thus failed to meet the threshold of a reasonable possibility of success at trial in respect of his secondary market claim under the QSA and also failed to meet the less demanding arguable case threshold for his primary market claim. Conclusion This case stands as a reminder that the mere non-realization of targets and projections is not in itself evidence that a statement contains misrepresentations as to material facts at the time it is made. Importantly, it is a reminder to issuers of the importance of including reserves and cautionary language in its statements in this regard. This decision is also one of several recent decisions from the Superior Court refusing a proposed class action under the Securities Act for want of sufficient evidence.[7] However, with the recent judgment of the Court of Appeal overturning the dismissal of the authorization of the securities class action in Nseir v. Barrick Gold [8], and the more general trend from the Court of Appeal overturning first-instance decisions refusing to authorize class actions, any appeal of Justice Conte's judgment in this matter will certainly be watched closely. Plaintiff has 30 days from the notice of the judgment to appeal to the Court of Appeal. [GN] HRONIS INC: Armenta Files Suit in Cal. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against Hronis, Inc. The case is styled as Martin Armenta and Leopoldo Ontiveros, as individuals and on behalf of all others similarly situated v. Hronis, Inc., Case No. BCV-23-100448 (Cal. Super. Ct., Kern Cty., Feb. 14, 2023). The case type is stated as "Other Employment - Civil Unlimited." Hronis Inc. -- https://www.hronis.net/ -- operates as a vineyard. The Company owns and operates numerous vineyards that produces markets and distributes a wide variety of grapes and citrus products.[BN] IDEAL HOME HEALTH: Calderon Sues Over Unpaid Overtime Compensation ------------------------------------------------------------------ Sandra Calderon, on behalf of herself and others similarly situated v. IDEAL HOME HEALTH INC., Case No. 1:23-cv-01184 (E.D.N.Y., Feb. 13, 2023), is brought pursuant to the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") to recover from the Defendant: unpaid wages, including overtime compensation, due to time-shaving, statutory penalties, liquidated damages, and attorneys' fees and costs. Despite the Plaintiff starting work upon arrival, Defendant's policy does not permit these employees to clock-in immediately. Instead, the Plaintiff is reliant upon the client to call on their behalf to clock the employees in. This procedure of the Plaintiff commencing work, but not being clocked-in until the Defendant's clients, who have no incentive to timely clock employees in, find their phone, ensure it is charged, acquire Defendant's number, and properly call to clock-in the Plaintiff. This procedure takes an average 5-10 minutes per clock-in for the Plaintiff. Additionally, the Defendant's requirement that the Plaintiff clock in and out for her shifts using the Client's smartphone resulted in approximately 12 days for which the Plaintiff was not paid at all. The Defendant's Client's phone was unable to be used by the Plaintiff for clocking in or out of her shifts for these 12 days and, despite the Plaintiff notifying the Defendant of the Client's inability to clock her in, Defendant never compensated Plaintiff for any of these days. The Defendant did not provide the Plaintiff with proper wage statements at all relevant times, in violation of the NYLL. The Defendant never provided the Plaintiff with a proper wage notice as required by the NYLL. In failing to provide proper wage statements and notices, the Defendant has failed to comply with the law in a manner that clearly entails a concrete risk of harm to an interest identified by the New York State legislature. The Defendant's failure to provide such notices trivializes the importance of these notices in protecting the Plaintiff's interest in ensuring proper pay, says the complaint. The Plaintiff was hired by the Defendant to work as a direct support professional with the job title Home Attendant for the Defendant. IDEAL HOME HEALTH INC, is a domestic corporation organized under the laws of New York.[BN] The Plaintiff is represented by: CK Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Phone: 212-465-1188 Fax: 212-465-1181 INLAND RESTORATION: Sued Over Failure to Pay Proper OT Compensation ------------------------------------------------------------------- Jordan King, individually and on behalf of all others similarly situated v. INLAND RESTORATION, INC., and STEVEN KNIGHT, Case No. 2:23-cv-00040 (E.D. Wash., Feb. 13, 2023), is brought against Defendants for violations of the overtime provisions of the Fair Labor Standards Act, (the "FLSA"), and the provisions of the Washington Minimum Wage Act, (the "WMWA") as a result of the Defendants' policy and practice of failing to pay proper overtime compensation. In weeks in which the Plaintiff performed work related to earning a bonus and worked over 40 hours, the Defendants did not pay Plaintiff and other Hourly Technicians 1.5 times their regular hourly rate for hours worked over 40 in that week. The Defendants violated the FLSA and the WMWA by not including all forms of compensation, such the nondiscretionary bonuses of the Plaintiff, in their regular rate when calculating their overtime pay. The Plaintiff consistently worked in excess of forty hours per week. The Plaintiff tracked their time via Defendants' electronic timekeeping system. The Defendants knew or should have known that the Plaintiff worked hours over forty in at least some weeks. The net effect of the Defendants' practices and policies regarding Plaintiff's bonuses and pay is that the Defendants intentionally avoided including bonuses in the Plaintiff's regular rate to avoid paying him a proper overtime premium for hours worked over forty each week. The Defendants made no reasonable efforts to ascertain and comply with applicable law. The Defendant knew, or showed reckless disregard for whether, the way it paid the Plaintiff violated the FLSA and the WMWA, says the complaint. The Plaintiff was first employed by the Defendants as a helper technician and then as a lead technician from March of 2022 to August of 2022. Inland Restoration, Inc. is a domestic for-profit corporation.[BN] The Plaintiff is represented by: Jon Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AK 72211 Phone: (800) 615-4946 Facsimile: (888) 787-2040 Email: ecfnotices@sanfordlawfirm.com JILL ACQUISITION: Serrieh Labor Class Suit Removed to E.D. Cal. --------------------------------------------------------------- The case styled DINA SERRIEH, an individual, on behalf of herself and on behalf of all persons similarly situated, Plaintiff v. JILL ACQUISITION LLC, a Limited Liability Company; and DOES 1 through 50, inclusive, Defendants, Case No. S-CV-0049697, was removed from the Superior Court of the State of California for the County of Placer, to the United States District Court for the Eastern District of California on Feb. 16, 2023. The Clerk of Court for the Eastern District of California assigned Case No. 2:23-at-00139 to the proceeding. In the complaint, Plaintiff alleges, on behalf of herself and all others similarly situated, nine total causes of action, eight of which are for various violations of the California Labor Code and one for "Unfair Competition" under the California Business & Professions Code. Jill Acquisition LLC provides retail store and mail order catalog services.[BN] The Defendant is represented by: Jon D. Meer, Esq. Paul J. Leaf, Esq. Justin J. Jackson, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jmeer@seyfarth.com pleaf@seyfarth.com jujackson@seyfarth.com JOHN KASICH: Wins Summary Judgment Bid vs Ball ---------------------------------------------- In the class action lawsuit captioned as PHYLLIS BALL, et al., v. JOHN KASICH, et al., Case No. 2:16-cv-00282-EAS-EPD (S.D. Ohio), the Hon. Judge Edmund A. Sargus, Jr. entered an order: -- granting the joint motion for summary judgment of the Defendants and the County Boards, -- granting the County Boards' Supplemental Motion for Summary Judgment, and -- granting the unopposed Motion to File as Amicus Curiae, and -- granting the Guardians' Motion to File a Sur-Reply. The case originally involved two groups of individuals with developmental disabilities who were not satisfied with Ohio's administration of its developmental-disability system. One group, headed by Disability Rights Ohio, filed this case alleging that Ohio's system violated federal law because it was allegedly too reliant on Intermediate Care Facilities ("ICFs") at the expense of integration into the community for disability services. The other group, which intervened as representatives of individuals who prefer care in ICFs ("Guardians"), alleged that Ohio's system violates the same federal laws because it fails to inform people of the ICF choice, leaving them only the option of community-based care through waivers or wait lists for those waivers. On March 31, 2016, Disability Rights Ohio filed this case on behalf of six individually named Plaintiffs and the Ability Center of Greater Toledo seeking declarative and injunctive relief against the Directors of the Ohio Department of Developmental Disabilities, the Ohio Department of Medicaid, and Opportunities for Ohioans with Disabilities (together "State of Ohio") and the Governor of Ohio. A copy of the Court's order dated Feb. 1, 2023 is available from PacerMonitor.com at https://bit.ly/3lINE32 at no extra charge.[CC] KASTRIOT INC: Leon Sues Over Unpaid Minimum and Overtime Wages -------------------------------------------------------------- Vicente Juarez Leon, individually and on behalf of others similarly situated v. KASTRIOT INC. (D/B/A GIOVANNI'S PIZZA) and KASTRIOT RAPAJ AKA CHRIS, Case 1:23-cv-01186 (S.D.N.Y., Feb. 13, 2023), is brought for unpaid minimum and 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 (herein the "Spread of Hours Wage Order"), including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiff Juarez worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff Juarez appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, Defendants failed to pay Plaintiff Juarez the required "spread of hours" pay for any day in which he had to work over 10 hours a day. Furthermore, Defendants failed to pay Plaintiff Juarez wages on a timely basis. In this regard, Defendants have failed to provide timely wages to Plaintiff Juarez. The Defendants employed and accounted for Plaintiff Juarez as a delivery worker in their payroll, but in actuality his duties required a significant amount of time spent performing the non-tipped duties. Regardless, at all relevant times, Defendants paid Plaintiff Juarez at a rate that was lower than the required tip-credit rate. However, under both the FLSA and NYLL, Defendants were not entitled to take a tip credit because Plaintiff Juarez's non-tipped duties exceeded 20% of each workday, or 2 hours per day, whichever is less in each day, says the complaint. The Plaintiff was employed as a delivery worker and a food preparer at the pizzeria. The Defendants own, operate, or control a pizzeria, located in New York City under the name "Giovanni's Pizza."[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 KEYBANK NATIONAL: Brouty Suit Transferred to N.D. Georgia --------------------------------------------------------- The case styled as Michael Brouty, Melissa Kauffman, Lebertus Vanderwerff, individually and on behalf of all others similarly situated v. KeyBank National Association, KeyCorp, Overby-Seawell Company, Case No. 1:22-cv-01885 was transferred from the U.S. District Court for Northern District of Ohio, to the U.S. District Court for Northern District of Georgia on Feb. 14, 2023. The District Court Clerk assigned Case No. 1:23-cv-00672-SDG to the proceeding. The nature of suit is stated as Other Contract for Breach of Fiduciary Duty. KeyBank -- https://www.key.com/personal/index.html -- the primary subsidiary of KeyCorp, is an American regional bank headquartered in Cleveland, Ohio, and is the only major bank based in Cleveland.[BN] The Plaintiffs are represented by: James J. Pizzirusso, Esq. HAUSFELD LLP 888 16th Street, Ste. 300 Washington, DC 20006 Phone: (202) 540-7200 Email: jpizzirusso@hausfeld.com - and - Steven Nathan, Esq. HAUSFELD, LLP 33 Whitehall Street New York, NY 10004 Phone: (646) 357-1194 Fax: (212) 202-4322 Email: snathan@hausfeld.com - and - Mark Abramowitz, Esq. DICELLO LEVITT AND CASEY LLC 7556 Mentor Avenue Mentor, OH 44060 Phone: (440) 953-8888 Email: marka@dicellolaw.com The Defendants are represented by: Lisa M. Ghannoum, Esq. BAKER & HOSTETLER-CLEVELAND 1900 East Ninth Street 3200 National City Center Cleveland, OH 44114-3485 Phone: (216) 861-7872 KEYBANK NATIONAL: Pittman Suit Transferred to N.D. Georgia ---------------------------------------------------------- The case styled as Jacint Pittman, individually and on behalf of all others similarly situated v. KeyBank National Association, KeyCorp, Overby-Seawell Company, Case No. 2:22-cv-01513 was transferred from the U.S. District Court for Western District of Pennsylvania, to the U.S. District Court for Northern District of Georgia on Feb. 14, 2023. The District Court Clerk assigned Case No. 1:23-cv-00673-SDG to the proceeding. The nature of suit is stated as Other Contract for Breach of Fiduciary Duty. KeyBank -- https://www.key.com/personal/index.html -- the primary subsidiary of KeyCorp, is an American regional bank headquartered in Cleveland, Ohio, and is the only major bank based in Cleveland.[BN] The Plaintiff is represented by: Alfred G. Yates, Jr., Esq. OFFICE OF ALFRED G. YATES, JR. 429 Forbes Avenue 519 Allegheny Building Pittsburgh, PA 15219-1649 Phone: (412) 391-5164 Email: yateslaw@aol.com The Defendants are represented by: Robert P. Leeson, Esq. BAKER & HOSTETLER LLP-P. PA 1735 Market Street, Suite 3300 Philadelphia, PA 19103 Phone: (215) 568-3100 - and - Jesse M. Endler WILSON ELSER MOSKOWITZ ELEMAN & DICKER-PA 2001 Market Street, Suite 3100 Philadelphia, PA 19103 Phone: (215) 627-6900 Fax: (215) 627-2665 LASHIFY INC: Adams Suit Removed to M.D. Florida ----------------------------------------------- The case styled as Courtney Adams, individually and on behalf of all others similarly situated v. Lashify, Inc., Case No. 2022-CA-002869 was removed from the Osceola County Circuit Court, to the U.S. District Court for the Middle District of Florida on Feb. 13, 2023. The District Court Clerk assigned Case No. 6:23-cv-00243-PGB-DCI to the proceeding. The nature of suit is stated as Other Contract. Lashify, Inc. -- https://www.lashify.com/ -- offers award-winning & life-changing DIY lash extensions.[BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Phone: (813) 422-7782 Fax: (813) 422-7783 Email: ben@thekrfirm.com The Defendant is represented by: Tyler Newby, Esq. FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Phone: (415) 875-2300 - and - Aaron S. Weiss, Esq. CARLTON FIELDS, P.A. 700 NW 1st Avenue, Suite 1200 Miami, FL 33136 Phone: (305) 530-0050 Fax: (305) 530-0055 Email: aweiss@carltonfields.com LEPRINO FOODS: Loses Renewed Bid to Decertify Class in Vasquez Suit ------------------------------------------------------------------- In the case, ISAIAS VASQUEZ and LINDA HEFKE, on behalf of all other similarly situated individuals, Plaintiffs v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendant, Case No. 1:17-cv-00796-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California: a. denies the Defendants' Renewed Motion for Class Decertification; b. denies the Defendants' Motion in Limine No. 1; and c. denies the Defendants' Motion in Limine No. 8 without prejudice. The class action lawsuit involves an employment dispute between Plaintiff class representatives Vasquez and Hefke and Defendants Leprino Foods Co. and Leprino Foods Dairy Products Co. (collectively, "Leprino" or "Defendants"). On March 30, 2020, the Court certified the Plaintiffs' claim that the Defendants required their non-exempt workers to remain "on-call" during their meal and rest breaks in violation of California law. The Defendants thereafter filed a motion for reconsideration, which the Court denied on Aug. 11, 2020. On Jan. 14, 2022, the Defendants filed a motion for summary judgment or, in the alternative, decertification. On April 29, 2022, the Court denied the Defendants' motion on the ground that genuine issues of material fact exist with respect to numerous factual disputes and that the certification requirements under Rule 23, particularly the commonality and predominance requirements, were still satisfied. On Nov. 7, 2022, the parties filed a Joint Pretrial Statement, which included each party's list of prospective witnesses to be called at trial. The Plaintiffs' prospective witness list named 49 prospective witnesses, and the Defendants' list named 1,608 prospective witnesses. The Plaintiffs objected to the Defendants calling all 1,608 individuals to testify at trial, and the Defendants responded that if liability is to be established on a class-wide basis, they must be allowed to present all their witness testimony to challenge the Plaintiffs' showing. They further argued that they would file a renewed motion to decertify the class because the Plaintiffs cannot prove class-wide liability through the individualized testimony of their 49 witnesses. To assist with the determination of an appropriate number of class-member witnesses to be called at trial, the Court ordered the parties to submit memoranda listing their prospective class-member witnesses with a brief summary of each witness's expected testimony at trial. It also gave the Defendants until Jan. 10, 2023 to file a renewed motion to decertify the class. On Dec. 4, 2022, the Plaintiffs submitted a list of 13 prospective class witnesses with proffers of their expected testimony. On Dec. 28, 2022, the Defendants submitted a list of 1,389 prospective class witnesses with proffers of their expected testimony. On Jan. 4, 2023, the Plaintiffs submitted a list of 7 prospective rebuttal class member witnesses with proffers of their expected testimony at trial. On Jan. 10, 2023, the Defendants filed their renewed motion to decertify the class. The Defendants argue that decertification is appropriate because Rule 23(b)(3)'s predominance and superiority requirements are no longer satisfied. Specifically, they assert that these requirements are not met because the Plaintiffs have not proposed any manageable plan on the eve of trial to prove that their official policies and practices effectively created a facility-wide requirement that workers remain on-call during breaks. The Plaintiffs argue that the Defendants' renewed motion for decertification should be denied because there is no compelling reason to decertify the class, such as discovery of new facts, changes in the parties, or changes in the substantive or procedural law. According to them, the Defendants' renewed motion presents many of the same arguments that the Court rejected in its previous orders, and the cases the Defendants cite for the first time in support of decertification are distinguishable. In light of the parties' arguments, the central issue before the Court is whether the evidence the Plaintiffs intend to use at trial is sufficiently "common" for each class member to make a prima facie showing, or overly "individualized" such that any common question among the class members consists of an unmanageable variety of individual legal and factual issues. Judge Ishii concludes that decertification of the class is inappropriate because there is sufficiently reliable evidence to establish the elements for class certification. Specifically, he says, based on the Plaintiffs' expert survey and class member testimonies, the jury could reasonably conclude that Leprino's official policies and practices effectively put class members on-call during their breaks. Allowing the Plaintiffs to offer representational evidence at trial will not violate the Defendants' due process rights because the latter can rebut that evidence with their own rebuttal expert and representational testimony. Whether the Plaintiffs' evidence is factually representative of the class is a merits dispute for the jury to decide. Accordingly, Judge Ishii denies the Defendants' Renewed Motion for Class Decertification and their Defendants' Motion in Limine No. 1. He denies the Defendants' Motion in Limine No. 8 without prejudice. The Defendants are ordered to submit a revised prospective class member witness list with their expected proffers within seven days of the date of the Order. The Plaintiffs will thereafter submit their revised rebuttal prospective class member witness list with their expected proffers within seven days of the filing of the Defendants' revised list. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/4v9mfv6n from Leagle.com. LEVEL 3: Seeks More Response Time to Conditional Class Cert Bid --------------------------------------------------------------- In the class action lawsuit captioned as THOMAS JOHNSON, on behalf of Himself and on behalf of all Others similarly situated, v. LEVEL 3 COMMUNICATIONS, LLC, Case No. 9:22-cv-81066-AMC (S.D. Fla.), the Defendant asks the Court to enter an order extending its time to respond to the plaintiffs' motion for conditional certification and court-authorized notice pursuant to 29 U.S.C. section 216(b) and class certification pursuant to Rule 23, from February 7, 2023 to February 28, 2023. The Named plaintiff, Thomas Johnson, and opt-in plaintiffs, Luis Pow-Sang and Joseph Hernandez, filed the Motion on January 24, 2023. The Plaintiffs' Motion asks the Court to conditionally certify a collective action for "all current and former Field and Network Technicians who worked for Defendant any time during the last three years within the United States;" and a class action for: "all persons employed by Defendant in the United States and denied compensation for work performed within four years of the filing of this complaint through the date of the final judgment in this action." Level 3 offers network management, data, voice, and video electronic telecommunication services. A copy of the Defendant's motion dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3lJdGDf at no extra charge.[CC] The Defendant is represented by: Brian M. McPherson, Esq. Holly Griffin Goodman, Esq. GUNSTER, YOAKLEY & STEWART, P.A. 777 S. Flagler Drive, Suite 500 East West Palm Beach, FL 33401 Telephone: (231) 655-1980 Facsimile: (561) 655-5677 E-mail: bmcpherson@gunter.com hgoodman@gunster.com - and - Timothy M. Threadgill, Esq. J. Lott Warren, Esq. BUTLER SNOW LLP 1020 Highland Colony Parkway, Suite 1400 Ridgeland, MS 39157 Telephone: (601) 948-5711 Facsimile: (601) 985-4500 E-mail: tim.threadgill@butlersnow.com lott.warren@butlersnow.com LINDT & SPRUNGLI: Gralia Sues Over Harmful Chocolate Products ------------------------------------------------------------- Luke Gralia, Kamila Harkavy, Sarah Sherman, and Crystal Rodriguez, Individually and on behalf of all others similarly situated v. LINDT & SPRUNGLI (USA), INC., Case No. 1:23-cv-01186 (E.D.N.Y., Feb. 13, 2023), is brought seeking to recover damages and injunctive relief for Defendant's continuing failure to disclose to consumers that certain Lindt dark chocolate products (collectively, the "Products"), contain unsafe levels of lead and cadmium (collectively "Heavy Metals"). The Lindt Dark Chocolate Products in question are the Lindt "Excellence Dark Chocolate 70% Cocoa" bar and the Lindt "Excellence Dark Chocolate 85% Cocoa" bar. Dark chocolate is often touted as being a healthier alternative to milk chocolate, however, a December 2022 report by Consumer Reports revealed that certain dark chocolate bars, including the Products, had high enough levels of lead and cadmium that "eating just an ounce a day would put an adult over a level that public health authorities and Consumer Reports' experts say may be harmful." Heavy Metals in foods pose a significant safety risk to consumers because they can cause cancer and often irreversible damage to brain development as well as other serious health problems. Consumers who purchase the Products are injured by Defendant's acts and omissions concerning the presence (or risk) of Heavy Metals. No reasonable consumer would know, or have reason to know, that the Products contain (or risk containing) Heavy Metals. Worse, as companies across the industry have adopted methods to limit heavy metals in their dark chocolates, Defendant has stood idly by with a reckless disregard for its consumers' health and well-being. Had the Defendant disclosed on the label that the Products contained (or risked containing) unsafe toxic Heavy Metals, the Plaintiffs would have been aware of that fact and would not have purchased the Products or would have paid less for them, says the complaint. The Plaintiffs purchased the Products from the Defendants. The Defendant manufactures, markets, and sells dark chocolate, including the Products, throughout New York, California, and the United States.[BN] The Plaintiffs are represented by: Max S. Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Fax: (212) 989-9163 Email: mroberts@bursor.com - and - L. Timothy Fisher, Esq. Sean L. Litteral, Esq. Luke W. Sironski-White, Esq. BURSOR & FISHER, P.A. 1990 N. California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com slitteral@bursor.com lsironski@bursor.com - and - Kevin Laukaitis, Esq. LAUKAITIS LAW FIRM LLC 737 Bainbridge Street, #155 Philadelphia, PA 19147 Phone: (215) 789-4462 Email: klaukaitis@laukaitislaw.com - and - Jack Fitzgerald, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Phone: (619) 215-1741 Email: jack@fitzgeraldjoseph.com LINDT & SPRUNGLI: Sued Over Unsafe Chocolate Products ----------------------------------------------------- Jason Goldstein, Lynn Minck, and Michelle Sturgis, individually and on behalf of all others similarly situated v. LINDT & SPRUNGLI (USA), INC., Case No. 1:23-cv-01213-JMF (S.D.N.Y., Feb. 13, 2023), is brought against Defendant regarding the manufacture, distribution, and sale of its Lindt Excellence 70% Cocoa Dark Chocolate Bars and Lindt Excellence 85% Cocoa Extra Dark Chocolate Bar products (collectively the "Affected Products") which contain unsafe levels of lead and cadmium (collectively, "Heavy Metals"). The marketing for and labeling of the Affected Products are silent as to the presence of elevated levels of Heavy Metals in the Affected Products. Lindt's advertising and packaging are false, misleading, and reasonably likely to deceive the public. Lead is a harmful chemical when consumed and is especially dangerous to pregnant women and children. Lead poisoning occurs when lead builds up in the body, over months or years. Any amount of lead exposure can lead to serious health problems. Children younger than 6 years are especially vulnerable to even mild lead exposure, which can severely affect mental and physical development. At very high levels, lead poisoning can be fatal in adults and children. Cadmium is also dangerous when consumed. Cadmium can be found in cigarette smoke and a wide variety of industrial products, including batteries, pigments, metal coatings, and plastics. Cadmium is carcinogenic and exposure to even low levels of cadmium over time may result in a toxic build-up of cadmium in the kidneys, leading to kidney disease4 and bones damage and osteoporosis. A December 2022 report by Consumer Reports revealed that a selection of dark chocolate bars sold to the public, including the Affected Products, contained high levels of heavy metals: specifically, cadmium and lead. The Defendant knew or should have known that its representations and advertisements regarding the Affected Products were false and misleading and that they failed to disclose material information. He Defendant had been notified by previous cadmium exposure notice in 2014 raised by watchdog group As You Sow, which filed Proposition 65 Notices for elevated lead and cadmium levels found in the products of multiple dark chocolate brands, including Lindt. Consumers could not have known about the unsafe levels of lead and cadmium in the Affected Products before purchasing them without having conducted extensive and expensive scientific testing. Defendant, on the other hand, is positioned to test its products and has exclusive knowledge of the quality control testing on the Affected Products and the ingredients contained therein. If the Plaintiffs knew that the Affected Products contained the Heavy Metals, they would not have purchased the Affected Products on the same terms, if at all, says the complaint. The Plaintiffs purchased the Affected Products. The Defendant manufactures, advertises, labels, and sells dark chocolate.[BN] The Plaintiffs are represented by: Mark S. Reich, Esq. Courtney E. Maccarone, Esq. LEVI & KORSINSKY, LLP 55 Broadway, 10th Floor New York, NY 10006 Phone: (212) 363-7500 Facsimile: (212) 363-7171 Email: mreich@zlk.com cmaccarone@zlk.com M & M: Fails to Pay Tire Technicians' Minimum, OT Wages Under FLSA ------------------------------------------------------------------ WILLIAM ROSAS and JOSE ORELLANA, individually and on behalf of all others similarly situated v. M AND M LA SOLUCION FLAT FIXED INC., MARCO T. MEJIA, and ELMA BUSTILLOS,, Case No. 1:23-cv-01212 (E.D.N.Y., Feb. 14, 2023) seeks to recover minimum and overtime wages, in violation of the Fair Labor Standards Act of 1938 and the New York Labor Law. The Plaintiffs and the FLSA Collective Plaintiffs were non-exempt employees pursuant to the FLSA and the NYLL. Mr. Rosas worked four days per week, for a total of 48 hours worked per week. He was not afforded meal or rest breaks throughout his employment with the Defendants. From December 1, 2019 until January 2020, the Defendants compensated Rosas at a rate of $80.00 per day, and failed to compensate Rosas with overtime premiums for hours worked in excess of 40 per week, says the suit. The Defendants allegedly violated federal and state law by willfully failing to pay Plaintiffs and the FLSA Collective Plaintiffs the applicable minimum wages for all hours worked, overtime compensation for hours worked in excess of 40 per week, spread of hour wages for every day on which their shifts exceeded 10 hours per day, and by failing to provide the required payroll notices and wage statements. Mr. Orellana worked for the Defendant as a tire technician from January 1, 2016 up to February 21, 2022. Mr. Rosas worked for the Defendant as a tire technician from December 1, 2019 to April 25, 2022. M and M specializes in the sale, service, and repair of tires for motor vehicles, offering mechanical work that includes tire rotation, balance, alignment, puncture repair, and replacement of tires. The business also offers related services, such as oil changes, brake checks, and suspension repairs.[BN] The Plaintiffs are represented by: Nicole Grunfeld, Esq. KATZ MELINGER PLLC 370 Lexington Ave, Suite 1512 New York, NY 10017 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 E-mail: ndgrunfeld@katzmelinger.com MARRIOTT HOTEL: Conditional Cert of Collective Action Sought ------------------------------------------------------------ In the class action lawsuit captioned as TIMOTHY STANGER, On Behalf of Himself and All Others Similarly Situated, v. MARRIOTT HOTEL SERVICES, INC. d/b/a GAYLORD OPRYLAND RESORT & CONVENTION CENTER, Case No. 3:22-cv-00800 (M.D. Tenn.), the Plaintiffs ask the Court to enter an order: 1. conditionally certifying the case as a collective action pursuant to Section 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. section 216(b); and 2. authorizing notice of this action to the following individuals: "All current and former employees who Defendant paid a tipped hourly rate of less than the $7.25 per hour minimum wage as well as tips at Gaylord Opryland Resort & Convention Center ("Gaylord") at any time since October 10, 2019." The Plaintiffs also specifically request that the Court adopt Plaintiffs' proposed notice procedures by ordering that: (1) Defendant shall produce within fourdays of the Court's order a list containing the following information for each member of the Collective Class: name(s), last known mailing address(es), last known e-mail address(es), and last known telephone number(s). (2) The Plaintiffs' proposed Notices and Consent Form are approved. (3) The Plaintiffs' counsel are authorized to distribute the approved Notices and Consent Form to members of the Collective Class via U.S. Mail, E-mail, and Short Message Service (SMS) / text message; and Consent Forms to join this action must be postmarked or otherwise received by. The Plaintiff's counsel within 90 days of the date notices are sent via U.S. Mail, E-mail, and SMS / text message. Marriott Hotel owns and operates hotels. The Company offers accommodation, dining, spa, and fitness center facilities. A copy of the Plaintiffs' motion dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3Ei7zMr at no extra charge.[CC] The Plaintiff is represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. Nicole A. Chanin, Esq. BARRETT JOHNSTON MARTIN & GARRISON , LLC Philips Plaza, 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E_mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com nchanin@barrettjohnston.com The Defendant is represented by: Robert Earl Boston, Esq. WALLER LANSDEN DORTCH & DAVIS, LLP Nashville City Center 511 Union Street, Suite 2700 Nashville, TN 37219 Telephone: (615) 244-6380 Facsimile: (615) 244-6804 E-mail: bob.boston@wallerlaw.com - and - Ariel Cudkowicz, Esq. Hillary J. Massey, Esq. Michael Steinberg, Esq. SEYFARTH SHAW Two Seaport Ln #1200 Boston, MA 02210 Telephone: (617) 946-4800 E-mail: acudkowicz@seyfarth.com hmassey@seyfarth.com msteinberg@seyfarth.com MASTERCARD INC: May Face Class Suit Over Illegal Interchange Fees ----------------------------------------------------------------- Scott Kanowsky, writing for Investing.com, reports that Mastercard (NYSE:MA) and Visa (NYSE:V) face a series of potential multibillion-pound legal claims as a London-based law firm gears up to file a major class action lawsuit on behalf of British businesses, Sky News reported on Feb. 21. The outlet said that commercial litigation firm Harcus Parker is close to filing what it thinks could be among the largest competition compensation claims in British history. The filing will argue that the two payments giants charged companies too much for multilateral interchange fees, or the amount companies pay banks to accept purchases made with a credit or debit card. According to Sky News, it will also allege that Mastercard and Visa -- and not market forces -- imposed the level of these fees on banks as a condition of doing business with them. A source quoted by Sky News said the size of the legal action could be at a minimum of GBP7.5 billion (GBP1 = $1.2089), although the amount may ultimately be double that sum. Harcus Parker declined to comment in the report. Mastercard and Visa have previously settled similar lawsuits regarding allegations of overcharged interchange fees. The two declined to comment to Sky News. [GN] MATTERPORT INC: Pretrial Conference in Lynch Set for Dec. 6 ----------------------------------------------------------- In the class action lawsuit captioned as SHAWN LYNCH, on behalf of himself and all other persons similarly situated, v. MATTERPORT, INC, Case No. 3:22-cv-03704-WHA (N.D. Cal.), the Hon. Judge William Alsup entered an order pursuant to Rule 16 of the Federal Rules of Civil Procedure ("FRCP") and Civil Local Rule 16-10, as follows: -- The non-expert discovery cut-off August 31, 2023 date shall be: -- The last date for designation August 31, 2023 of expert testimony and disclosure of full expert reports under FRCP 26(a)(2) as to any issue on which a party has the burden of proof ("opening reports") shall be: -- The last date to file dispositive October 12, 2023 motions shall be: -- The final pretrial conference December 6, 2023 shall be held on: Matterport is a developer of a 3D media platform used to establish 3D and virtual reality models. A copy of the Court's order dated Feb. 1, 2023 is available from PacerMonitor.com at https://bit.ly/3E7u0Uw at no extra charge.[CC] MDL 2903: Bid to Dismiss Alfaro's Unsafe Sleeper Class Suit Denied ------------------------------------------------------------------ In the case, IN RE: FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 1:19-md-2903 (W.D.N.Y.), Judge Geoffrey W. Crawford of the U.S. District Court for the Western District of New York denies the Defendants' Motion to Dismiss for Lack of Standing. Elizabeth Alfaro is the mother of several children. In September 2017, she or her husband -- it makes no difference -- purchased a Rock 'n Play Sleeper ("RNPS") for her newborn son for $50 at a Target store. Ms. Alfaro placed the little boy in the RNPS for half of his daytime naps and 75-80% of his overnight sleep during the first six months of his life. The child suffered no ill consequences from sleeping in the RNPS and appears to have enjoyed it. He was followed by a little sister. She did not enjoy sleeping in the RNPS and did not use the product much during her infancy. In April 2019, Ms. Alfaro learned about the recall of the RNPS supervised by the Consumer Product Safety Commission. She participated in the recall and received a plush child's toy. The Defendants placed a value of $30 on the toy. Ms. Alfaro's children did not like to play with the toy. Ms. Alfaro seeks a refund of the full price her family paid for the RNPS. The Defendants seek dismissal of the New York class action on standing grounds. The Court previously issued a decision certifying an "issues class" on some but not all liability issues. It identified causation for purposes of NY GBL Section 349 as well as damages as subject to individual proof. It also noted that the Defendants intended to challenge the standing of the Plaintiffs sole New York class representative, Ms. Alfaro. The Defendants return to these issues with a motion to dismiss on the ground that Ms. Alfaro is a satisfied customer who suffered no loss -- even if the Plaintiffs establish at trial that the Rock 'n Play Sleeper ("RNPS") was marketed by means of false statements. The Plaintiffs respond that Ms. Alfaro's injury occurred when she overpaid for the RNPS, believing that it was safe for infant sleep, and that statutory damages, however nominal in amount, are sufficient to confer standing on a consumer. Judge Crawford states that standing is legal shorthand for the constitutional requirement that plaintiffs in a civil lawsuit prove that they have suffered an injury-in-fact that is fairly traceable to the conduct of the defendant and likely to be redressed by a favorable judicial decision. In the absence of a concrete, particularized injury, a lawsuit fails to meet the case or controversy requirement of Article III of the Constitution. Federal courts lack jurisdiction to hear cases which do not meet this standard. Judge Crawford begins by identifying the injury that Ms. Alfaro claims. Through counsel, Ms. Alfaro describes her injury as being misled into purchasing the RNPS by false statements about safety. The Defendants contend that Ms. Alfaro has suffered no injury-in-fact because she was satisfied with the product while she used it -- going so far as to recommend it to others -- and had no plans to resell at a loss. Ms. Alfaro has alleged a concrete and particularized injury sufficient to establish standing, Judge Crawford concludes. He finds that Ms. Alfaro claims that she would never have bought the RNPS if she had known about the risk of infant death. That is a view that every new parent would share. As the Court previously observed, there is no market for childcare products discounted to reflect the risk of death or injury. A jury could well believe Ms. Alfaro if she testifies that she or her husband would never have purchased the RNPS if the Defendants had disclosed what they knew about the risk of infant death. The case does not end at the point of purchase. The Defendants are entitled to introduce evidence of Ms. Alfaro's positive experiences with the RNPS and whatever offset they can establish through the receipt of the plush toy. These may reduce the damages to zero or a jury may give them less weight. But that is a factual dispute over the amount of the damages. Evidence that Ms. Alfaro obtained value from using the RNPS does not alter the original claimed injury of $50 for a purchase that she states she would not have made if Defendant's promotion of the product had been truthful. Judge Crawford leaves for trial the parties' dispute over whether the damages are $50 or zero or some figure in between. In his view, Ms. Alfaro's allegations that she was misled into purchasing the RNPS are sufficient to establish standing for jurisdictional purposes. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/yscuxpxk from Leagle.com. MDL 2936: Court Suggests Remand of DJ Action to E.D. Louisiana -------------------------------------------------------------- In the case, IN RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC FLUID MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Plaintiff v. SMITTY'S SUPPLY, INC., et al., Defendants, Master Case No. 4:20-MD-02936-SRB, Case No. 4:21-cv-00071-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Western Division, suggests that the U.S. Judicial Panel on Multidistrict Litigation remands the declaratory judgment action to the U.S. District Court for the Eastern District of Louisiana for further proceedings. The declaratory judgment action ("DJ Action") is part of a multidistrict litigation proceeding ("MDL") that involves product liability claims brought against Smitty's. Smitty's manufactured, marketed, and sold tractor hydraulic fluids ("THF Products"). The MDL Plaintiffs purchased Smitty's THF Products, which they claim they are defective and caused them to suffer property damage. Judge Bough's Order recommends the remand of the DJ Action, Case No. 4:21-cv-00071-SRB, only. It does not recommend remand of other claims contained in the MDL, docketed as Master Case No. 4:20-MD-02936-SRB. Plaintiff Nationwide Agribusiness Insurance Co. ("Nationwide") issued Smitty's various commercial general liability insurance policies, effective April 30, 2014, to April 30, 2020. The Policies provide that Nationwide will indemnify Smitty's for "those sums the insured becomes legally obligated to pay as damages" because of "property damage." In May 2018, a class action entitled Shawn Hornbeck, et al. v. Tractor Supply Company, et al., No. 4:18-cv-00523-NKL ("the Hornbeck Action") was filed in the Circuit Court of Cass County, Missouri, and subsequently transferred to this Court. The Hornbeck Plaintiffs alleged that Smitty's THF Products were defective and caused property damage to their equipment. Smitty's sought indemnity in the Hornbeck Action from Nationwide under the Policies. Nationwide agreed to retain counsel, but disputed that it was obligated to provide coverage. Nationwide participated in and agreed to settle the Hornbeck Action in August 2019 ("the Hornbeck Settlement"). In October 2020, Nationwide filed the DJ Action in the U.S. District Court for the Eastern District of Louisiana, seeking a determination as to what portion, if any, it is required to indemnify Smitty's for the Hornbeck Settlement. The JPML transferred this DJ Action to Judge Bough for inclusion in the MDL due to common issues of fact as to Smitty's knowledge of the alleged product defect and causation of property damages. Since transfer to this Court, the parties have engaged in discovery and the Court ruled on motions for summary judgment. The case no longer benefits from centralized proceedings and is subject to remand. The DJ Action should be remanded to the Eastern District of Louisiana pursuant to 28 U.S.C. Section 1407(a). To assist the Eastern District of Louisiana, Judge Bough's Order describes events that have taken place in the DJ Action in his. A copy of his order, along with the case files and materials, will be available to the Eastern District of Louisiana after remand. Judge Bough suggests that the JMPL should remand the DJ action because the purpose of consolidated proceedings has been fulfilled. He says all issues relating to Smitty's knowledge of the alleged THF Product's defects and the causation of property damages, the motivating factors of consolidation, have been resolved by the Court in the parties' motions for summary judgment. All that remains are case-specific issues regarding (1) the amount of damages sustained by Smitty's due to Nationwide's failure to indemnify Smitty's fall within the period policy; and (2) whether Nationwide's failure to indemnify was in bad faith, in violation of Louisiana law. These issues do not involve common issues of fact with the MDL proceedings. As the instant case would not benefit from further consolidated pretrial proceedings, Judge Bough therefore suggests that the JPML remand the DJ Action, Case No. 4:21-cv-00071-SRB, only, to the Eastern District of Louisiana for further proceedings. He does not recommend remand of other claims contained in the MDL, docketed as Master Case No. 4:20-MD-02936-SRB. The Clerk of the Court will forward a certified copy of the Order to the JPML. A full-text copy of the Court's Feb. 7, 2023 Suggestion of Remand & Transfer Order is available at https://tinyurl.com/mwy4xwh5 from Leagle.com. MDL 3014: Dobbs v. Aerocare Transferred to W.D. Pa. --------------------------------------------------- In the multi-district litigation captioned In Re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Liability Litigation, MDL No. 3014, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers the case docketed as Dobbs, et al. v. Aerocare Home Medical, Inc., et al., (C.A. No. 4:22−03408, S.D. Tex.) to the U.S. District Court for the Western District of Pennsylvania, and with the consent of that court, assigned to the Honorable Joy Flowers Conti for coordinated or consolidated pretrial proceedings. Dobbs moved to vacate said order by arguing that federal subject matter jurisdiction over their action is lacking and that the transferor court should decide their pending remand motion before any transfer. But the panel contends that this is not an impediment to transfer. The actions here asserts overlapping claims for violations of state consumer protection statutes, breach of warranties and unjust enrichment arising from recalled ventilators and the potential harm that can be caused by their alleged inherent defect. The recalled devices allegedly contain polyester-based polyurethane (PE-PUR) sound abatement foam that may degrade into particles or off-gas volatile organic compounds that may then be ingested or inhaled by the user, causing injury, ruled the panel. A full-text copy of the court's February 1, 2023 order is available at https://bit.ly/3SjEwxY MDL 3044: MSP Recovery v. Exactech Inc. Transferred to E.D. N.Y. ---------------------------------------------------------------- In the multi-district litigation captioned IN RE: Exactech Polyethylene Orthopedic Products Liability Litigation, MDL No. 3044, regarding knee or hip replacement devices' premature failure, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers the case styled as MSP Recovery Claims Series, LLC v. Exactech, Inc., et al., (C.A. No. 1:22-00313, N.D. Fla.) to the Eastern District of New York and, with the consent of that court, assigned to Judge Nicholas G. Garaufis for coordinated or consolidated pretrial proceedings. MDL plaintiffs and defendants stress that transfer is inappropriate because plaintiff MSP Recovery allegedly lacks standing to bring its claims, which are not yet ripe because no injured patient has been compensated for his or her injuries by Exactech. These arguments invite the panel to discourse on the substance of plaintiff's allegations, which it historically has declined to do. This litigation concerns a case concerning the polyethylene components of Exactech medical devices. On June 28, 2021, Exactech issued a product safety alert regarding the clinical performance of the polyethylene liner used in its Connexion GXL hip systems. On August 31, 2021, Exactech initiated a recall related to polyethylene inserts used in its knee and ankle devices because such devices were packaged in out-of-specification vacuum bags that are oxygen resistant but do not contain a secondary oxygen barrier of ethylene vinyl alcohol. In August 2022, Exactech expanded its June 2021 recall to include additional Connexion GXL hip liners and other polyethylene liners. Plaintiffs in the MDL allege that their knee or hip replacement devices (Optetrak and Truliant and Connexion GXL, respectively) failed prematurely because of degradation of the device's polyethylene component, which resulted in the premature removal (or planned removal) of the prosthesis at issue. All actions can be expected to share factual questions concerning the design, manufacture, testing, marketing, packaging and performance of the polyethylene components of their Exactech devices. They allege that oxidation of the moderately cross-linked polyethylene used in the Exactech hip, knee and ankle devices causes inflammatory responses when implanted, generates polyethylene debris, crack, and loosen the device, all of which in turn requires revision surgery. According to the panel, MSP Recovery was involved in other products liability MDLs where centralized litigations included a third-party payer action brought by MSP Recovery along with consumer plaintiff claims. That said, given that Exactech and MDL plaintiffs raise serious questions about the ability of MSP Recovery to bring its claims, the transferee judge may find it prudent to engage in threshold motion practice about the viability of such claims before, for instance, establishing a third-party payer MDL track. A full-text copy of the court's February 6, 2023 order is available at https://bit.ly/3XWG5D0 MDL 3047: Youngers v. Meta Platforms Transferred to N.D. Cal. ------------------------------------------------------------- In litigations involving Meta platforms'(Facebook and Instagram) alleged encouragement of addictive behavior, failure to verify users' ages, encouragement of adolescents to bypass parental controls and inadequately safeguarding against harmful content and/or intentionally amplify harmful and exploitive content, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers case styled as "Youngers, Et Al. v. Meta Platforms, Inc., et al.," (C.A. No. 1:22-00608, D. N.M.) to the Northern District of California and, with the consent of that court, assigned to Judge Yvonne Gonzalez Rogers for coordinated or consolidated pretrial proceedings in IN RE: SOCIAL MEDIA ADOLESCENT ADDICTION/PERSONAL INURY PRODUCTS LIABILITY LITIGATION, MDL No. 3047. This action involves common questions of fact arising from allegations that defendants' social media platforms are defective because they are designed to maximize user screen time, which can encourage addictive behavior in adolescents. The Youngers plaintiffs allege their daughter became addicted to the corporate defendants' social media products and experienced "serious mental health illness," including depression and anxiety. They also allege that the individual defendants used the social media platforms to manipulate and harm her. The panel said that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to motions to dismiss and conserve the resources of the parties, their counsel and the judiciary. Plaintiffs in the Youngers case moved to vacate the panel's order that conditionally transferred the action to the Northern District of California for inclusion in MDL No. 3047 while Meta Platforms, Inc. opposed the motion. A full-text copy of the court's February 1, 2023 order is available at https://bit.ly/3Kkoq5c MDL 3055: Nine Data Breach Suits Consolidated in D.N.J. ------------------------------------------------------- In the multi-district litigation captioned IN RE: Samsung Customer Data Security Breach Litigation, MDL No. 3055, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers five cases from the U.S. District Court for the District of New Jersey, two from the Northern District of California and one each from the Northern District of Illinois and Southern District of New York, all to the District of New Jersey, and, with the consent of that court, assigned to Judge Christine P. O'Hearn for coordinated or consolidated pretrial proceedings. Plaintiffs in all actions and common defendant Samsung Electronics America, Inc., unanimously support centralization, with the disagreement limited to the appropriate transferee district. Plaintiffs in two actions on the motion and five potential tag-along actions support movants' request for the Northern District of California or, alternatively, the District of New Jersey. Plaintiffs in six actions on the motion and one potential tag-along action request the District of New Jersey as transferee district. Defendant requests centralization in the District of Nevada or, alternatively, the Southern District of New York. These actions involve common questions of fact over an alleged data security breach of Samsung's U.S. systems in or around July 2022 that allegedly compromised the personal information of millions of consumers using Samsung products and services. Common factual questions include (1) Samsung's data security practices and whether the practices met industry standards, (2) how the unauthorized access occurred, (3) the extent of personal information affected by the breach, (4) when Samsung knew or should have known of the breach, (5) the investigation into the breach and (6) whether plaintiffs are entitled to damages as a result of defendant's alleged conduct. According to the Panel, centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to class certification and conserve the resources of the parties, their counsel, and the judiciary. The District of New Jersey is an appropriate transferee district since the defendant's headquarters is in New Jersey, where common witnesses and other evidence likely will be found. Six related actions are pending there, and all responding plaintiffs support this district as their first or second choice for the transferee venue. A full-text copy of the court's February 1, 2023 order is available at bit.ly/3XKhv8l MDL 3056: 6 Data Breach Suits Transferred to N.D. Ga. ----------------------------------------------------- In the multi-district litigation captioned IN RE: Keybank Customer Data Security Breach Litigation, MDL No. 3056, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers three cases from the U.S. District Court for the Northern District of Georgia, two from the Northern District of Ohio and one from the Western District of Pennsylvania, to the Northern District of Georgia and, with the consent of that court, assigned to Judge Stephen D. Grimberg for coordinated or consolidated pretrial proceedings. It was further ordered that the caption of this litigation be changed to "In Re: Overby-Seawell Company Customer Data Security Breach Litigation." All responding parties support centralization but disagree as to the transferee district. Plaintiffs in the two constituent Northern District of Ohio actions suggest centralization in that district while plaintiffs in the three constituent Northern District of Georgia actions suggest centralization in that district. Defendants KeyBank, N.A., KeyCorp. And Overby-Seawell Company (OSC) support centralization in the Northern District of Georgia, and OSC alternatively supports the Northern District of Ohio as transferee district. Plaintiffs in one Northern District of Georgia action and KeyBank suggest renaming the litigation to reflect that OSC is the main defendant in this litigation. OSC is a technology services vendor for financial institutions that provides ongoing verification that the institutions' residential mortgage customers are maintaining required property insurance. These putative nationwide class actions share factual issues relating to a July 2022 incident in which an "unauthorized external party" gained remote access to OSC's network and acquired certain personally identifiable information of OSC's financial institution clients' customers. All plaintiffs allege that OSC failed to maintain adequate security measures, and they assert similar claims including for negligence, negligence per se, and breach of contract. Common factual issues will include how OSC's system was breached, what security measures OSC had in place to protect against such a breach, what information was compromised in the breach, and whether OSC provided timely notice of the breach to its financial institution clients. The panel opined that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with respect to class certification and conserve the resources of the parties, their counsel, and the judiciary. The Northern District of Georgia is an appropriate transferee forum for this litigation, it held. Five of the ten actions now pending are in this district and several plaintiffs and both OSC and KeyBank support centralization there. And since OSC is headquartered there, relevant evidence and witnesses likely will be in this district, concluded the panel. A full-text copy of the court's February 1, 2023 order is available at bit.ly/3SisOmY MDL 3058: Credit Reporting Litigation Denied Transfer to N.D. Ill. ------------------------------------------------------------------ In the multi-district litigation captioned IN RE: Trans Union, LLC, Balance after Bankruptcy Discharge Fair Credit Reporting Act (FCRA) Litigation, MDL No. 3058, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, denied the move of defendant Trans Union, LLC to centralize this litigation, which involves the alleged misattribution of balances to accounts for which debts were discharged in bankruptcy, in the Northern District of Illinois. This litigation currently consists of five actions pending in the U.S. District Court of Nevada, two in the District of Utah and one each from the Southern District of California and the District of Hawaii. Defendants Experian Information Solutions, Inc., and Equifax Information Services LLC do not oppose centralization while all responding plaintiffs oppose centralization. The actions contain common factual questions that the plaintiffs in all actions previously obtained bankruptcy relief and had certain of their debts discharged but all contend that Trans Union inaccurately reported a balance on one or more former accounts that were subject to discharge. Plaintiffs bring claims solely for violation of the Fair Credit Reporting Act (FCRA). The panel held that centralization does not appear needed to further the just and efficient conduct of this litigation involving seemingly straightforward claims that a balance was misattributed to certain discharged accounts. Plaintiffs argue that centralization is not appropriate because the actions will turn on specific circumstances such as the adequacy of any reinvestigation conducted based on plaintiffs' correspondence in each of the eight individual actions. Further, they assert that centralization is not needed because there is only one class action among the nine actions. Plaintiffs contend that coordination in each of the districts with multiple cases could streamline the litigation. A full-text copy of the court's February 6, 2023 order is available at bit.ly/3Z4HVmn MERCEDES-BENZ USA: Bolling Sues Over Defective Panoramic Sunroof ---------------------------------------------------------------- NATALIE BOLLING, individually and on behalf of all others similarly situated, Plaintiffs v. MERCEDES-BENZ USA, LLC; and MERCEDES-BENZ GROUP AG, Defendants, Case No. 1:23-cv-00671-TWT (N.D. Ga., Feb. 14, 2023) alleges that the Defendants manufacture and sell defective motor vehicle's panoramic sunroof. The Plaintiff alleges in the complaint that the Defendant failed to satisfactorily meet the engineering challenges presented by panoramic sunroofs. Mercedes vehicles with panoramic sunroofs suffer from a design, manufacturing and materials defect whereby their panoramic sunroofs will spontaneously shatter under normal driving conditions creating a safety hazard for the vehicle occupants and surrounding traffic. The alleged defect may be present in every Mercedes vehicle equipped with a panoramic sunroof (the "Class Vehicles"). The defect may be a product of Mercedes' panoramic sunroof design, or alternatively, the defect may result from part of the manufacturing process, or the materials used during production. The existence of the defect is a material fact that a reasonable consumer would consider when deciding whether to purchase or lease a Class Vehicle. Had Plaintiff and other Class Members known of the defect, they would have paid less for the Class Vehicles or would not have purchased or leased them, says the suit. MERCEDES-BENZ USA, LLC was founded in 2000. The Company's line of business includes the wholesale distribution of new and used passenger automobiles, trucks, trailers, and other motor vehicles. [BN] The Plaintiff is represented by: Brent Irby, Esq. IRBY LAW LLC The Highland Building 2201 Arlington Ave. S. Birmingham, AL 35205 Telephone: (205) 936-8281 Email: brent@irbylaw.net MICHIGAN: Boussum Complaint v. Washington Dismissed w/o Prejudice ----------------------------------------------------------------- In the case, MARK A. BOUSSUM, et al., Plaintiffs v. HEIDI WASHINGTON, et al., Defendants, Case No. 1:22-cv-12232 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division: a. denies the Plaintiffs' Motion for Reconsideration; and b. dismisses the Complaint without prejudice for failure to prosecute. A group of disabled inmates have filed a pro se class action alleging numerous federal claims and seeking to be represented by an inmate who purports to be a paralegal. The Plaintiffs are prisoners held in a "Medically Frail Housing (MFH) Unit" at the Thumb Correctional Facility (TCF) in Lapeer, Michigan. The MFH Unit was developed to house medically frail inmates, but the Plaintiffs claim that TCF began to admit such inmates before it was fully prepared to meet their housing and medical needs. They add that problems with staffing and the MFH Unit's programming, care, and other services violate the Americans with Disabilities Act, the Rehabilitation Act, and the Plaintiffs' rights under the First, Eighth, and Fourteenth Amendments. The Plaintiffs have various disabilities, and examples of their complaints include a lack of medical staff, missing handrails near beds and in showers requiring mobility-impaired prisoners to carry medical equipment up and down stairs, and the denial of the opportunity to participate in school, work, and recreation programming. And the Plaintiff Boussum filed a motion for a temporary restraining order, newly complaining that Defendants are "double bunking" "regular" (i.e., nondisabled) prisoners in the MFH Unit, placing the "patients at risk to property theft, assaults, and/or death." The case was stayed for three months to seek pro bono counsel for the Plaintiffs because prison inmates may not represent each other in federal lawsuits. But no counsel accepted their case pro bono, so the stay was lifted, their motions for class certification and appointment of counsel were denied, they were directed to correct deficiencies in their applications for leave to proceed in forma pauperis, and their motion for a temporary restraining order was denied without prejudice. Then the Plaintiffs filed a motion for reconsideration but not the documents required to correct the deficiencies in their in forma pauperis applications. The Plaintiffs' Motion for Reconsideration makes three arguments: (1) they meet Rule 23's requirements for class certification; (2) the Court should appoint class counsel; and (3) the Court erred in denying their request for a temporary restraining order. With respect to class certification, Judge Ludington opines that the Plaintiffs merely rehash all their arguments for why their purported class meets the requirements of Rule 23. Those arguments do not warrant consideration, because the Court already considered and rejected them. The Plaintiffs' only new argument is that the Federal Rules of Civil Procedure do not allow for the denial of class certification based on appointment of counsel. But that argument lacks merit. Hence, all the Plaintiff's arguments regarding class certification lack merit. With respect to pro bono counsel, because the Plaintiffs were given 90 days to seek pro bono counsel, no attorney accepted their case, and they may not represent each other in a class action, their second argument lacks merit. Finally, the Plaintiffs rehash all their arguments regarding their request for a temporary restraining order. Because there is no connection between the Complaint and the Motion for Temporary Restraining Order's alleged harm of housing nonaide inmates with medically frail inmates, their argument lacks merit. The Plaintiffs each filed a motion to proceed in forma pauperis without the required form that authorizes withdrawal of their funds. So they were granted the maximum 30-day extension to submit either the $350.00 filing fee and $52 administrative fee (i.e., $402) or the required Prisoner's Application to Proceed Without Prepayment of Fees and Costs and Authorization to Withdraw from the Trust Fund Account. Although the Plaintiffs filed a Motion for Reconsideration, they failed to provide the required form that authorizes withdrawal of their funds. Nor have they paid the required fees. Nor have they requested another 30-day extension. Therefore, under binding Sixth Circuit precedent, the Court is now required to presume that the prisoner is not a pauper, to assess the inmate the full amount of fees, and to dismiss the Plaintiffs' Complaint for want of prosecution. For failure to prosecute, the Plaintiffs' Complaint must be dismissed. Lastly, the Plaintiffs may not appeal in forma pauperis, because an appeal from this Order would be frivolous and not taken in good faith. Accordingly, Judge Ludington denies the Plaintiffs' Motion for Reconsideration. He dismisses the Complaint without prejudice for failure to prosecute. The case is prohibited from being reinstated to the district court's active docket -- even if the Plaintiffs pay the filing fees. The Plaintiffs are denied a certificate of appealability and leave to appeal in forma pauperis. It is a final order and the case is closed. A full-text copy of the Court's Feb. 8, 2023 Opinion & Order is available at https://tinyurl.com/4rrk4cr5 from Leagle.com. MIDLAND CREDIT: Limas Sues Over Disclosure of Personal Information ------------------------------------------------------------------ SAL LIMAS, on behalf of himself and all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC., Defendant, Case No. 37-2023-00002607-CU-MC-CTL (Cal. Sup. Ct., January 20, 2023) files this complaint against the Defendant for its alleged violations of the Fair Debt Collection Practices Act. The Plaintiff has allegedly incurred a debt for personal, familial, and household purposes. Accordingly, the alleged debt was transmitted to the Defendant for collections. Consequently, on January 20, 2022, the Plaintiff has received a collection letter from the Defendant. However, the Defendant utilized a third-party vendor to send the letter, thereby disclosing the Plaintiff's personal information to a third-party in violation of the FDCPA. The Plaintiff brings this complaint seeking for judgment against the Defendant for statutory damages pursuant to the FDCPA, as well as an injunctive relief stopping the Defendant from using third party vendors. The Plaintiff also seeks reasonable attorneys' fees and costs, and other relief as may be just and proper. Midland Credit Management, Inc. is a debt collector. [BN] The Plaintiff is represented by: Robert Sibilia, Esq. OCEANSIDE LAW CENTER P.O. Box 861 Oceanside, CA 92049 Tel: (760) 666-1151 Fax: (818) 698-0300 E-mail: robert@oceansidelawcenter.com MOGA TRANSPORT: Benitez Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against MOGA Transport, Inc. The case is styled as Leobardo Benitez, Ramon Aragon, and Eleazar Del Toro on behalf of themselves and others similarly situated v. MOGA Transport, Inc., Case No. BCV-23-100472 (Cal. Super. Ct., Kern Cty., Feb. 14, 2023). The case type is stated as "Other Employment - Civil Unlimited." Moga Transport, Inc. -- http://www.mogatransport.co/-- is a professional and reliable milk hauling/logistics company serving clients in California.[BN] MOL EUROPE: CAT Restricts Communications With Class Members ----------------------------------------------------------- Sarina Williams, Esq., Jason Shardlow-Wrest, Esq., and Alice Chung, Esq., of Linklaters, in an article for Global Competition Review, disclosed that the Competition Appeal Tribunal (CAT) has continued its trend of handing down landmark decisions in its ever-expanding case law on collective actions. In a judgment in the McLaren class action at the end of November 2022, the CAT unanimously ruled that class action defendants cannot communicate with actual or potential members of the class, unless the CAT directs otherwise or the parties agree. However, it then went on to issue guidance to Visa and Mastercard in the interchange fee class actions to provide clarity on the application of its ruling. Background The CAT made a collective proceedings order (CPO) for McLaren's claim to proceed on an opt-out basis back in May 2022, following which potential UK class members were given nearly three months to opt out. In that time, solicitors for the majority of the defendants wrote letters directly to businesses that formed part of the proposed class pointing out that unless they opted out of the action they could be required to disclose documents, which would involve time and expense and possibly require them to disclose confidential information. The letters went on to suggest that if businesses intended to form part of the class action, they should seek legal advice as to their document preservation obligations. McLaren's representatives were copied to these letters and subsequently made an urgent application pursuant to the CAT's case management powers under the 2015 Competition Appeal Tribunal Rules, seeking an order that the defendants would not be allowed to communicate with actual or potential members of the class. The key question: can defendants communicate with actual or proposed class members? While the need for urgency had dissipated by the time of its decision, the CAT acknowledged that the application raised an "important point": to what extent can defendants to collective proceedings communicate with actual or proposed class members? McLaren argued that, while the 2015 rules did not expressly address the point, they made it clear that defendants could not communicate with class members. Alternatively he contended that even if the rules did not prohibit such communication, the letters sent by the defendants' solicitors "crossed the line of what was acceptable" and so the CAT should exercise its discretion under its case management powers to prevent any further communication. The defendants disputed the application on several grounds, including that: -- the rules did not (expressly or impliedly) restrict them from communicating with class members; -- their right to freedom of expression -- protected by Article 10 of the European Convention of Human Rights (ECHR) -- would be infringed if such a restriction was found; and -- the letters were, as they put it, "conspicuously fair" in their presentation of the issues and in having copied McLaren's representatives. The CAT's answer: communication from defendants is not permitted The CAT unanimously decided that there was an "inherent" restriction in the relevant rules that prevents defendants from communicating with class members. This applies not only when an action has been certified, but also to communications by any proposed defendants with any proposed class members where a CPO is being sought. Concluding that such a restriction was "clearly framed", the CAT appeared to rely heavily on a purposive interpretation -- as opposed to being guided by what the rules expressly do (or do not) say. For example, it emphasised the process established by the rules (in particular, rules 75 and 76, which address the procedure for commencing and responding to a CPO application) and the regime's intention, which is to allow claims to be brought on behalf of individuals without them each having to incur their own costs. The CAT determined that a restriction on defendants' communications with class members "arises inevitably" from the rules and is even "necessary to" the structure of the collective action regime. In the CAT's words: "The whole point of the collective proceedings regime is that the represented persons are represented by a class representative" (original emphasis). The CAT gave short shrift to the arguments relating to freedom of expression, noting that a restriction to the defendants' qualified Article 10 rights was justified in the circumstances, as that restriction was intended to ensure due process (which is itself protected by Article 6 of the ECHR) in the collective action regime. In all, the CAT found that, unless it rules otherwise or the parties agree (which, even then, would still be subject to the CAT's supervision), defendants cannot communicate with actual or proposed class members. Despite the defendants in this case having agreed to cease communicating with class members, the CAT proceeded to grant an order preventing them from doing so. It went on to include a form of postscript, which included observations on the content of the letters sent and what it called the "canard that this non-communication obligation in some way inhibits defendants… from properly exercising their rights of defence". The CAT observed that, had it not found the rules to contain a clear restriction on communications from defendants, it would in any event have deemed the letters sent to be unacceptable (again, due to them "cut[ting] across and undermin[ing]" the potential benefits of the collective action regime). The McLaren judgment appeared to close the door on any possibility of direct communications between defendants and actual or potential class members. Yet, despite this clear messaging, the McLaren judgment left important questions unanswered, including: Where should the line be drawn in terms of defendants' communications? How should defendants treat communications with parties who cannot be part of a class (eg, because they have already brought a separate action) but who, prior to certification, technically fall within a class representative's proposed class definition? Are defendants allowed to inform parties of this fact, which would save all parties time and expense? Are they allowed to settle with those parties? The judgment also risked cutting across parallel claims in the courts that overlap with any collective proceedings. The complexity of these issues became stark as Visa and Mastercard asked the CAT to address the judgment's application at the first case management conference in the interchange fee class actions in December 2022. A more nuanced approach for parallel individual proceedings . . . but what next? To set the scene, the interchange fee class actions were brought against a backdrop of myriad claims already proceeding against Visa and/or Mastercard in both the High Court and the CAT. These were brought on an individual basis, relating to a wide variety of interchange fees (often including, but not limited to, the commercial and inter-regional fees subject of the class actions), some of which are being managed as umbrella proceedings. Following the McLaren judgment, it appeared that Visa and Mastercard would be unable to respond to merchant communications prior to a certification decision, given that they may form part of a potential class. Visa and Mastercard therefore sought clarification from the CAT on the application of the McLaren judgment in these circumstances, which it handed down on 13 January 2023. The CAT acknowledged that a tension arose between encouraging procedural efficiencies/settlement and protecting the purpose of the CPO regime. Ultimately, the CAT largely upheld the McLaren judgment, but decided that a more nuanced approach was required as to whether -- and how -- Visa and Mastercard could respond to communications in circumstances where there are existing individual proceedings. In broad terms, it found that Visa and Mastercard could engage with communications in certain circumstances (eg, in relation to issues outside the scope of the class actions and/or where claims involved issues both within and outside the scope of the class actions or if the merchant is represented and had been alerted by the defendants to the existence of the class actions). Key takeaways Given the unique and inherently complex backdrop to the interchange class actions and the circumstance-specific nature of the CAT's conclusions in the interchange fee judgment, it remains to be seen whether this narrow carve-out will be applied to other cases. However, with the CPO regime gaining popularity, this is unlikely to be the end of the CAT's iterative navigation through these difficult issues. More generally, the CAT's choice to fiercely protect the CPO regime's purpose from the perspective of class members arguably overlooks the potential downside to barring communications from defendants. Even-handed communications, drafted and sent by legal representatives (who are themselves subject to professional standards and regulatory obligations) and copied to the class representative could play a valuable role in curbing the mass-claim-hungry, book-building exercises that claimant law firms and litigation funders are embarking upon as the collective action regime gains confidence, particularly where class members are sophisticated businesses with access to legal advice. Further, while the CAT's approach admirably seeks to support the regime's purpose, the regime was not intended to facilitate the flooding of judicial systems with unmeritorious or uninformed claims that could be discouraged through legitimate and responsible defendant communications. In light of the implications and remaining uncertainties arising from the CAT's decisions, we will be betting our blue suede shoes that this is not the end of the matter.[GN] MOUNTAIN LAKES: Court Denies B.L.'s Bid to Proceed Under Pseudonyms ------------------------------------------------------------------- In the case, B.L., individually and on behalf of J.L., his minor child at all pertinent times, and on behalf of all similarly situated students, Plaintiffs v. MICHAEL J. FETHERMAN, et al., Defendants, Civil Action No. 22-3471 (JMV) (JSA) (D.N.J.), Magistrate Judge Jessica S. Allen of the U.S. District Court for the District of New Jersey denies the Plaintiffs B.L. and J.L.'s motion for leave to proceed in the case under pseudonyms. The case arises out of the Plaintiffs' legal challenge to portions of Mountain Lakes School District's ("MLSD") public-school curriculum on the basis that it is discriminatory against white students. Thus, according to the Plaintiffs, the Defendants have unlawfully discriminated against J.L., have violated his constitutional rights and have subjected him to a hostile educational environment. B.L. also brings his own claims, alleging that the Defendants' responses to his concerns violated his constitutional rights. In the Amended Complaint filed on July 1, 2022, the Plaintiffs refer to themselves only by their initials. On Aug. 24, 2022, they filed the instant motion, seeking leave to proceed under pseudonyms, pursuant to Federal Rule of Civil Procedure 10(a). In support of their motion, B.L. claims that he has been portrayed as a "villain" for challenging MLSD's curriculum, and that he has received threats, causing him to fear for his and J.L.'s safety. The Plaintiffs raise concern for their well-being and contend that the standard adopted by the Third Circuit Court of Appeals in Doe v. Megless, 654 F.3d 404 (3d Cir. 2011), supports them proceeding under pseudonyms. B.L. further contends that he has a reasonable fear of harm if his identity is publicly disclosed and that the interests of minors and the nature of Plaintiffs' claims warrant proceeding by pseudonyms. The Defendants oppose the motion, contending that the use of pseudonyms has been reserved for only the most exceptional cases. They argue that the Plaintiffs have described only vague and speculative concerns about proceeding in their real names and that B.L has not shown that his fear of harm is reasonable. The Defendants further argue that a balancing of the factors in Megless does not support Plaintiffs' request to proceed by pseudonyms. Finally, they question whether J.L. has reached the age of majority during the pendency of this litigation since B.L. will not confirm whether J.L. is still a minor, and the Plaintiffs seek relief under Rule 10(a) rather than under Federal Rule 5.2, which permits a minor to use his or her initials without first seeking leave of court. Judge Allen explains that in Megless, the Third Circuit noted that courts within their circuit have primarily relied on a test for the use of pseudonyms set forth in Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa. 1997). That case sets forth a non-exhaustive list of factors to be weighed both in favor of anonymity and also factors that favor the traditional rule of openness. Under that test, the Provident Life Court requires that a court first consider the following factors that generally support the use of a pseudonym: (1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant's identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. Thereafter, a reviewing court must consider three additional factors that traditionally weigh against the use of a pseudonym: (1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant's identities, beyond the public's interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. The Third Circuit, in Megless, endorsed the test set forth by the Provident Life Court (the "Provident Life test"). In the present case, there is no dispute that the Provident Life test as endorsed by the Third Circuit applies to the Court's use of pseudonym analysis. Accordingly, Judge Allen turns to address the test's application to the Plaintiffs' motion. After considering the Provident Life test factors weighing in favor of and in opposition to proceeding anonymously as adopted by the Third Circuit in Megless, Judge Allen finds that the Plaintiffs have not carried their burden to show that they should be permitted to proceed by pseudonyms in the case. Accordingly, she denies the Plaintiffs' motion to proceed by pseudonyms. The Plaintiffs will file an Amended Complaint, disclosing their identities. An appropriate Order will be entered. A full-text copy of the Court's Feb. 8, 2023 Opinion is available at https://tinyurl.com/yc4r4u7k from Leagle.com. NATIONAL FREIGHT: Bid to Decertify Class in Portillo Suit Denied ---------------------------------------------------------------- In the case, JOHN F. PORTILLO, RAFAEL SUAREZ, MARTIN DURAN, GERMAN BENCOMSE, EDIN VARGAS, LUIS A. HERNANDEZ, JOSUE PAZ, and ALVARO CASTANEDA, Individually and on behalf of all others similarly situated, Plaintiffs v. NATIONAL FREIGHT, INC. and NFI INTERACTIVE LOGISTICS, INC., Defendants, Civil No. 15-cv-07908 (D.N.J.), Judge Joseph H. Rodriguez of the U.S. District Court for the District of New Jersey denies the Defendants' motion to decertify the previously certified class. Defendants National Freight, Inc., and NFI Interactive Logistics, LLC moved for an order pursuant to Fed. R. Civ, P. 23(c)(1)(C) decertifying the class previously certified by the Court on June 30, 2020, and vacating the Court's June 9, 2022 Summary Judgment Order. The Plaintiffs are truck drivers, who allege that Defendants National Freight, Inc. and NFI Interactive Logistics, LLC (collectively, "NFI") erroneously classified them as independent contractors and resultingly made unlawful deductions from their pay in violation of the New Jersey Wage Payment Law, N.J. Stat. Ann. Section 34:11-4,.1 et seq. On July 1, 2020, the Court granted class certification under Fed. R. Civ. P. 23(b)(3) and defined the class of Plaintiffs as: 1. All individuals who: (1) entered into, either personally or through a corporate entity, an independent contractor agreement with NFI that had a New Jersey choice-of-law clause; and (2) drove a vehicle on a full-time basis to perform deliveries of goods to Trader Joe's stores anywhere on the East Coast on behalf of NFI at any time since June 22, 2009. 2. Full-time basis means having delivered at least 80% of the loads assigned to the contractor. In arriving at this definition in the July 1, 2020 Opinion deciding the Plaintiffs' motion for class certification, the Court took into account Judge Simandle's earlier decision making certain choice-of-law determinations in the context of Plaintiffs' motion for declaratory relief. Specifically, it found that Judge Simandle's conclusion that New Jersey law applies to the named Plaintiffs' claims extended to then-absent class member Plaintiffs who meet the class criteria. Following the Court's certification of the class, NFI sought permission to appeal that decision by way of petition to the Third Circuit under Fed. R. Civ, P. 23(f), which the Third Circuit denied. The Plaintiffs then moved for summary judgment and NFI cross-moved for summary judgment. NFI's instant motion follows the Court's Order granting summary judgment in favor of the Plaintiffs upon finding that they were misclassified as independent contractors applying the ABC test under New Jersey law. The determinations set forth in the Court's decisions on each of these earlier motions are implicated by NFI's present motion to decertify. NFI challenges the Court's earlier conclusions that New Jersey law applies to the Plaintiffs' claims based on the recent decision in Johnson v. Diakon Logistics, Inc., 44 F.4th 1048 (7th Cir. 2022) and that damages are not calculable on a class-wide basis In Diakon, The Seventh Circuit held that choice-of-law provisions contained in defendants' service agreements with plaintiff truck drivers were irrelevant because the plaintiffs' rights under the Illinois wage law arose under and were governed by the wage payment statute, not their service agreements. It argues that Diakon shows this Court "incorrectly analyzed which state's wage payment law governs the work of interstate drivers allegedly misclassified as independent contractors." According to NFI, this Court erred when it applied the most significant-relationship test from the Restatement (Conflicts) of Law and concluded a New Jersey choice-of-law provision in the parties' ICOA was in effect determinative. It further claims that in doing so, the Court inappropriately extended the choice-of-law ruling beyond named plaintiffs to all class members at the class certification stage, which minimized the relationship between the parties and the claims, on one hand, and Pennsylvania, on the other. As to damages, NFI argues that individual issues overwhelm questions common to the class because Plaintiffs' expenses vary both plaintiff-to-plaintiff and year-to-year. It contends that this makes it impossible to determine the Plaintiffs' costs and expenses across the entire class, thus rendering the claims improper for adjudication on a class-wide basis. Judge Rodriguez finds that NFI has identified no new or changed circumstances or changes in controlling substantive or procedural law to warrant decertification. Likewise, it fails to meet the standard for decertification based on its assertion that the Plaintiffs' damages are not susceptible to class-wide proof. For the same reasons, he need not decertify the class at this juncture based on the possibility that if NFI's position is accepted, a factfinder may be required to offset any damages with the benefit of tax write-offs for claimed business expenses. Ultimately, because outstanding damages-related questions concerning whether to employ a "sum-of-deductions model" or NFI's proposed "standard economic model" and the import of tax-offsets implicate consequential questions of law and statutory interpretation, Judge Rodriguez finds that these are more appropriately considered in the context of a fully-briefed motion for judgment. For now, he says it is enough to observe that alternative and conflicting theories of damages among the parties are insufficient to warrant wholesale decertification. Indeed, the potential existence of individualized damage assessments does not detract from the action's suitability as a class where it is not clear that questions of individual damage calculations will inevitably overwhelm questions common to the class. As the Third Circuit held, obstacles to calculating damages may not preclude class certification" provided that the class can show "the fact of damages on a common basis, citing Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298, 306 (3d Cir. 2016). The Plaintiffs have met that burden, while NFI has failed to meet its burden of showing a change in circumstances or controlling law that would warrant the drastic step of decertifying the class. For the reasons set he forth, Judge Rodriguez denies NFI's motion to decertifying the class. An accompanying order will be issued. A full-text copy of the Court's Feb. 7, 2023 Opinion is available at https://tinyurl.com/2s4cf73b from Leagle.com. NATIONWIDE CREDIT: Khaimov Sues Over Deceptive Collection Letters ----------------------------------------------------------------- NIKADEM KHAIMOV, individually and on behalf of all others similarly situated, Plaintiff v. NATIONWIDE CREDIT AND COLLECTION, INC., Defendant, Case No. 701442/2023 (N.Y. Sup. Ct., January 20, 2023) brings this complaint as a class action against the Defendant seeking for damages and declaratory relief pursuant to the Fair Debt Collections Practices Act. The Plaintiff has an alleged debt incurred to the creditor, Northwell Health GoHealth Urgent Care. According to the complaint, the Defendant was contracted by the creditor for the purpose of debt collection. Consequently, the Plaintiff received a collection letter from the Defendant on a date better known by the Defendant. Since the Plaintiff is a Medicaid beneficiary, he disputed the existence of the alleged debt. The Plaintiff asserts that he provided the healthcare provider with Medicaid insurance and paid any residual balance in the form of a co-pay. The Plaintiff also claims that the healthcare provider is not allowed to assign a remainder of a debt to a debt collector once Medicaid pays them as it is a violation of Medicaid laws. Allegedly, the Defendant unduly pressured Medicaid recipients to pay additional funds for medical services that were already paid for in full by sending out dunning letters to make it appear as if money is truly owed, says the Plaintiff. As a result of the Defendant's deceptive, misleading and unfair debt collection practices, the Plaintiff suffered a concrete harm by receiving a collection letter or a debt that he obviously does not owe. Moreover, the Plaintiff was confused and misled to his detriment by the statements and/or omissions in the dunning letters, and relied on the contents of the letter to his detriment, the suit added. Nationwide Credit and Collection, Inc. is a debt collector. [BN] The Plaintiff is represented by: Christofer Merritt, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: cmerritt@steinsakslegal.com NATIONWIDE MUTUAL: Wins Bid to Seal Arbitration Ruling in Bush Suit ------------------------------------------------------------------- In the case, R. MITCHELL BUSH, and R.M. BUSH & COMPANY, Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant, Case No. CV 420-219 (S.D. Ga.), Magistrate Judge Christopher L. Ray of the U.S. District Court for the Southern District of Georgia, Savannah Division, grants Nationwide's motion to seal the arbitration ruling. Mr. Bush, the principal and owner of Plaintiff R.M. Bush & Co., entered several agreements with Nationwide. The Independent Contractor Agent Agreement ("IC Agreement") provides that that any claim or dispute between R.M. Bush and Nationwide, will be adjudicated on an individual agent-by-agent basis, and not on a class or representative basis. The adjudication will be by mandatory binding arbitration under the American Arbitration Association ("AAA") Rules. Section 17(G) of the IC Agreement provides that it does not limit either Party's right to pursue equitable remedies for a temporary restraining order or preliminary or permanent injunctive relief from a court of competent jurisdiction before, after, or during the pendency of any arbitration proceeding, including in aid of arbitration. The arbitration provision also states that the enforceability of the IC Agreement, including the arbitration clause, will be resolved by the arbitrator. The parties also entered an Asset Transfer Agreement ("AT Agreement"). The Plaintiffs allege that Nationwide obtained the AT Agreement under duress with no valid consideration in pursuit of a scheme to allow Nationwide to obtain an unlawful or improper tax benefit. They filed the putative class action suit against Nationwide seeking (1) a judgment declaring the AT Agreement to be void and unenforceable ("declaratory judgment request"), (2) equitable rescission of the AT Agreement, and (3) an injunction prohibiting Nationwide from enforcing the AT Agreement ("injunction request"). The District Judge granted, in part, and denied, in part, Nationwide's Motion to Compel Arbitration and Dismiss the Complaint, or, in the Alternative, to Transfer Venue. He found that the arbitration clause in the IC Agreement applies to the parties' dispute regarding the AT Agreement. Given that applicability, he also found that the parties did not dispute that the declaratory judgment request and equitable recission request must be submitted to arbitration. The Plaintiffs, however, argued that they could pursue their injunction request in federal court based on Section 17(G)'s provision that the IC Agreement does not limit either Party's right to pursue equitable remedies for injunctive relief from a court of competent jurisdiction. The District Judge found that since the parties agreed to delegate such "arbitrability" questions to an arbitrator, an arbitrator should determine whether the Plaintiff's injunction request is subject to arbitration. He ordered the parties to "submit the underlying dispute to arbitration", and stayed and administratively closed te case until an arbitrator rules on whether the Plaintiffs' injunction request is subject to arbitration. He directed the parties to file joint status reports updating the Court on the arbitration proceeding every 60 days, and to immediately notify the Court upon the arbitrator's determination of the threshold issue of arbitrability." The parties submitted five status reports updating the Court on the arbitration proceedings. Nationwide subsequently filed a motion explaining that the arbitration panel issued a ruling, and requesting an order permanently sealing the ruling. The Plaintiffs responded in opposition to the motion to seal, and Nationwide replied. Nationwide also attached a joint status report to its motion, which it does not seek to file under seal, in which all parties inform the Court that the arbitration panel issued a ruling, and request a status conference to address how to set a case schedule given the procedural posture of the case. Nationwide argues, inter alia, that the panel's ruling is not a "judicial record" subject to the presumption of public access because neither party has sought confirmation of the arbitration ruling, nor requested any judicial action with respect to the arbitration proceedings. Instead, the Parties filed the arbitration ruling merely as an attachment to a status report. The Plaintiffs counter that if the panel's ruling is sealed, the public will not know why or on what terms and conditions the Court is now proceeding with their injunction action. Judge Ray cannot conclude that the panel's ruling is a "judicial record." As noted, the District Judge decided that an arbitrator should determine whether the Plaintiffs can pursue their injunction request in federal court in light of Section 17(G)'s provision that the IC Agreement does not limit either Party's right to pursue equitable remedies for injunctive relief. The parties subsequently notified the Court that the panel had issued a ruling, and requested a status conference to address how to set a case schedule given the procedural posture of this case. That request indicates that no party disputes that the Plaintiffs can proceed with their injunction request in federal court. Further, no party has used the panel's ruling to make an argument that the Court must take some action, e.g., allow or not allow Plaintiffs to pursue their injunction request in federal court. Further, the Plaintiffs do not argue that Nationwide's sealing request must be denied even if the panel's ruling is not a "judicial record." Accordingly, Judge Ray grants Nationwide's motion to seal the arbitration ruling. He directs the Clerk to maintain the filing under seal. Additionally, Judge Ray grants the parties' joint request for a status conference. He will set a conference by separate Order. Finally, Judge Ray directs the Clerk to redocket the parties' sixth status report in a new and separate docket entry, maintaining the exhibit to that status report under seal. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/mrxdrjdd from Leagle.com. NIRMAL LC: Fails to Pay Technicians' Proper Wages, Herrera Claims ----------------------------------------------------------------- REYNALDO HERRERA, individually and on behalf of all others similarly situated, Plaintiff v. NIRMAL, L.C.; and RAMESH PATEL, Defendants, Case No. 4:23-cv-00595 (S.D. Tex., Feb. 16, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Herrera was employed by the Defendants as maintenance technician. NIRMAL, L.C. owns and operates multiple hotels and motels known as Super 8. [BN] The Plaintiff is represented by: Beatriz-Sosa Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8844 Facsimile: (281) 885-8813 Email: BSosaMorris@smnlawfirm.com - and - John Neuman, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8630 Facsimile: (281) 885-8813 Email: JNeuman@smnlawfirm.com NORFOLK SOUTHERN: Faces Canterburry Suit Over Chemical Spill ------------------------------------------------------------ AYSIA CANTERBURY; and LISA SODERGEN, individually and on behalf of all others similarly situated, Plaintiffs v. NORFOLK SOUTHERN CORPORATION; NORFOLK SOUTHERN RAILWAY COMPANY, Defendants, Case No. 4:23-cv-00298 (N.D. Ohio, Feb. 15, 2023) alleges that the Plaintiff and Class Members were significantly exposed to dangerous toxins due to the Defendants' tortious actions, including the Defendants' negligent, ultrahazardous, and willful and wanton conduct, in setting fire to a 1.1 million pound chemical burn pit. The Plaintiff alleges in the complaint that as a result of Norfolk Southern's decision to ignite a million pound chemical burn pit, and subject surrounding communities to chemical warfare agents instead of cleaning up its mess, the Plaintiffs and Class Members have been exposed to toxic and noxious chemicals. The Plaintiffs and others in the community have suffered significant and sustained irritation to their throats, eyes, lungs, mouths and lips, and had their properties invaded by dangerous plumes of chemical smoke. The Plaintiffs and Class Members have also been exposed as a result of Norfolk Southern's decision to run Train 32N until it broke, instead of taking reasonable steps to ensure safe operations. Despite the extreme toxicity of Vinyl Chloride, Phosgene, and other chemicals resulting from Norfolk Southern's conduct, and the near certainty that innocent individuals would be exposed and injured, Norfolk Southern set fire to a 1.1 million pound chemical burn pit anyway, the suit alleges. NORFOLK SOUTHERN CORPORATION provides rail transportation services. The Company transports raw materials, intermediate products, and finished goods primarily in the Southeast, East, and Midwest and, via interchange with rail carriers, to and from the rest of the United States. [BN] The Plaintiff is represented by: Jesse A. Shore, Esq. MORGAN & MORGAN, P.A. Morgan & Morgan, Kentucky PLLC 300 Madison Avenue, Suite 200 Covington, KY 41011 Telephone: (859) 899-8786 Facsimile: (859) 899-8807 Email: jshore@forthepeople.com - and - Rene F. Rocha, Esq. MORGAN & MORGAN, COMPLEX LITIGATION GROUP 400 Poydras Street, Suite 1515 New Orleans, LA 70130 Telephone: (954) 318-0268 Facsimile: (954) 327-3018 Email: rrocha@ForThePeople.com - and - Frank Petosa, Esq. MORGAN & MORGAN, COMPLEX LITIGATION GROUP 8151 Peters Road Suite 4000 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 327-3018 Email: fpetosa@ForThePeople.com PARRY'S PIZZA VI: Fails to Pay Proper Wages, Domowicz Alleges ------------------------------------------------------------- ELLIE DOMOWICZ, individually and on behalf of all others similarly situated, Plaintiff v. PARRY'S PIZZA VI, LLC; and PARRY'S PIZZERIA AND BAR, LLC, Defendants, Case No. 1:23-cv-00433-RM (D. Colo., Feb. 15, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Domowicz was employed by the Defendants as waitress. PARRY'S PIZZA VI, LLC operates a chain of restaurants known as Parry's Pizzeria and Taphouse. [BN] The Plaintiff is represented by Ricardo J. Prieto, Esq. WAGE AND HOUR FIRM 400 North Saint Paul Street, Suite 700 Dallas, Texas 75201 Telephone: (214) 210-2100 Facsimile: (469) 399-1070 Email: rprieto@wageandhourfirm.com PEABODY ENERGY: $1.16MM in Attys. Fees Awarded in Securities Suit ----------------------------------------------------------------- In the case, IN RE PEABODY ENERGY CORP. SECURITIES LITIGATION, Case No. 1:20-cv-08024-PKC (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York grants the Lead Counsel's motion for an award of attorneys' fees and payment of expenses. The matter came on for the Settlement Hearing on Feb. 7, 2023 on the Lead Counsel's motion for an award of attorneys' fees and payment of expenses, including an award to Lead Plaintiff pursuant to the Private Securities Litigation Reform Act of 1995. Having considered all matters submitted to the Court at the Settlement Hearing having considered and determined the fairness and reasonableness of the award of attorneys' fees and expenses requested, Judge Castel awards the Lead Counsel attorneys' fees in the amount of $1,156,250, plus interest at the same rate earned by the Settlement Fund (i.e., 25% of the Settlement Fund) and $199,505.48 in payment of Litigation Expenses, plus accrued interest, which sums he finds to be fair and reasonable. Lead Plaintiff Oregon Public Employees Retirement Fund is also awarded $9,197.60 from the Settlement Fund in connection with the time it dedicated to the action, for which it has been billed by the Oregon Department of Justice directly related to its representation of the Settlement Class, pursuant to Section 21D(a)(4) of the PSLRA, 15 U.S.C. Section 78u-4(a)(4). Any appeal or any challenge affecting the Court's approval of any attorneys' fees and expense application, including that of Lead Counsel, will in no way disturb or affect the finality of the Judgment. Exclusive jurisdiction is retained over the Parties and the Settlement Class Members for all matters relating to the Action, including the administration, interpretation, effectuation, or enforcement of the Stipulation and the Order. In the event that the Settlement is terminated or the Effective Date of the Settlement otherwise fails to occur, the Order will be rendered null and void to the extent provided by the Stipulation. There is no just reason for delay in the entry of the Order, and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's Feb. 7, 2023 Order is available at https://tinyurl.com/bdfc6ufm from Leagle.com. PEABODY ENERGY: Final Order & Judgment Entered in Securities Suit ----------------------------------------------------------------- Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York enters Final Order and Judgment in the case, IN RE PEABODY ENERGY CORP. SECURITIES LITIGATION, Case No. 1:20-cv-08024-PKC (S.D.N.Y.). On Oct. 7, 2022, Court-appointed Lead Plaintiff Oregon Public Employees Retirement Fund, on behalf of itself and all other members of the proposed Settlement Class, on the one hand, and Peabody, Glenn L. Kellow, and Amy B. Schwetz, on the other, entered into a Stipulation and Agreement of Settlement in the "Action. Pursuant to the Order Granting Preliminary Approval of Class Action Settlement, Approving Form and Manner of Notice, and Setting Date for Hearing on Final Approval of Settlement, entered Oct. 13, 2022, the Court scheduled the Settlement Hearing for Feb. 7, 2023, at 2:30 p.m. The Court ordered that the Notice of Pendency of Class Action, Proposed Settlement, and Motion for Attorneys' Fees and Expenses and a Proof of Claim and Release form be mailed within 10 business days after the date of entry of the Preliminary Approval Order to all potential Settlement Class Members who could be identified through reasonable effort, and that the Summary Notice of Pendency of Class Action, Proposed Settlement, and Motion for Attorneys' Fees and Expenses be published in The Wall Street Journal and transmitted over PR Newswire within 14 calendar days of the Notice Date. The Notice and the Summary Notice advised potential Settlement Class Members of the date, time, place, and purpose of the Settlement Hearing. The Notice further advised that any objections to the Settlement were required to be filed with the Court and served on counsel for the Parties such that they were received by Jan. 17, 2023. On Jan. 3, 2023, the Lead Plaintiff moved for final approval of the Settlement, as set forth in the Preliminary Approval Order. The Settlement Hearing was duly held before the Court on Feb. 7, 2023, at which time all interested Persons were afforded the opportunity to be heard. Judge Castel has duly considered the Lead Plaintiff's motion for final approval of the Settlement, the affidavits, declarations, memoranda of law submitted in support thereof, the Stipulation, and all of the submissions and arguments presented with respect to the proposed Settlement. After due deliberation, he affirms the Court's determinations in the Preliminary Approval Order and filially certifies, for purposes of the Settlement only, pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Settlement Class of: all persons and entities who or which purchased or otherwise acquired Peabody publicly traded common stock during the period from April 3, 2017 through Oct. 28, 2019, inclusive, and were allegedly damaged thereby. Pursuant to Rule 23 of the Federal Rules of Civil Procedure and for purposes of the Settlement only, Judge Castel re-affirms the Court's determinations in the Preliminary Approval Order and finally certifies Oregon Public Employees Retirement Fund as the Class Representative for the Settlement Class; and finally appoints the law firm of Labaton Sucharow LLP as the Class Counsel for the Settlement Class. There have been no objections to the Settlement. Pursuant to Rule 23(e)(2) of the Federal Rules of Civil Procedure, Judge Castel approves the Settlement in all respects, including the treatment of the Settlement Fund as a "qualified settlement fund" within the meaning of Section 468B of the Internal Revenue Code of 1986, as amended, and will be consummated in accordance with the terms and provisions of the Stipulation. The Consolidated Amended Class Action Complaint, filed on March 19, 2021, is dismissed in its entirety, with prejudice, and without costs to any Party, except as otherwise provided in the Stipulation. The Court finds that during the course of the Action, the Parties and their respective counsel at all times complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure. Upon the Effective Date, each of the Defendants, on behalf of themselves and each of their respective heirs, executors, trustees, administrators, predecessors, successors, and assigns, in their capacities as such, will be deemed to have fully, finally, and forever waived, released, discharged, and dismissed each and every one of the Released Defendants' Claims against each and every one of the Released Plaintiff Parties and will forever be barred and enjoined from commencing, instituting, prosecuting, or maintaining, either directly or indirectly, whether in the United States or elsewhere, on their own behalf or on behalf of any class or any other person, any action, suit, cause of action, claim or demand asserting any and all of the Released Defendants' Claims against any and all of the Released Plaintiff Parties. Notwithstanding the foregoing, nothing in the Judgment will bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or the Judgment. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation, then the Judgment will be rendered null and void to the extent provided by and in accordance with the Stipulation and will be vacated. A separate order will be entered regarding the Lead Counsel's application for attorneys' fees and payment of expenses as allowed by the Court and the proposed Plan of Allocation for the Net Settlement Fund. Without affecting the finality of the Judgment in any way, the Court retains continuing jurisdiction over: (i) implementation of the Settlement; (ii) the allowance, disallowance, or adjustment of any Settlement Class Member's claim on equitable grounds and any award or distribution of the Settlement Fund; (iii) disposition of the Settlement Fund; (iv) any applications for attorneys' fees, costs, interest, and payment of expenses in the Action; (v) all Parties for the purpose of construing, enforcing and administering the Settlement and this Judgment, including the releases entered herein; and (vi) other matters related or ancillary to the foregoing. The Clerk will terminate the open motions (ECF 80882) and close the case. A full-text copy of the Court's Feb. 7, 2023 Final Order & Judgment is available at https://tinyurl.com/2uw4wwmk from Leagle.com. PEABODY ENERGY: Plan of Allocation in Securities Suit Approved -------------------------------------------------------------- In the case, IN RE PEABODY ENERGY CORP. SECURITIES LITIGATION, Case No. 1:20-cv-08024-PKC (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York approves the Plan of Allocation for the proceeds of the Settlement. The matter came before the Court for a hearing on Feb. 7, 2023, on the motion of Lead Plaintiff Oregon Public Employees Retirement Fund for final approval of the proposed Settlement and approval of the Plan of Allocation for the proceeds of the Settlement. Judge Castel, having considered all papers filed and proceedings had therein, finds and concludes that the Plan of Allocation for the calculation of the claims of claimants that is set forth in the Notice of Pendency of Class Action, Proposed Settlement, and Motion for Attorneys' Fees and Expenses, provides a fair and reasonable basis upon which to allocate the Net Settlement Fund among Settlement Class Members. He further finds and concludes that the Plan of Allocation, as set forth in the Notice, is fair, reasonable, and adequate. Therefore, Judge Castel approves the Plan of Allocation. A full-text copy of the Court's Feb. 7, 2023 Order is available at https://tinyurl.com/2s48bk6p from Leagle.com. PLDT INC: Bids for Lead Plaintiff Appointment Due April 3 --------------------------------------------------------- The Class: Robbins LLP reminds investors that a shareholder filed a class action on behalf of all purchasers of PLDT, Inc. (NYSE: PHI) securities between January 1, 2019 and December 19, 2022, for violations of the Securities Act of 1934. Defendant PLDT purports to be the Philippines' largest fully integrated telco company. What Now: Similarly situated shareholders may be eligible to participate in the class action against PLDT. Shareholders who want to act as lead plaintiff for the class must file their papers by April 3, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. What is this Case About: PLDT, Inc. (PHI) Misled Investors Regarding its Business Prospects According to the complaint, during the class period, defendants touted PLDT's business prospects and its plans for implementation of its capex budget. However, defendants failed to disclose that there were capital spending budget overruns or address how these weaknesses allowed such budget overruns. On December 16, 2022, PLDT filed with the SEC a Form 6-K, which highlighted an elevated capex spend, noting: "WHILE THESE SUBSTANTIAL CAPEX INVESTMENTS WERE KEY TO MEETING PLDT'S GOALS, THEY CAME AT A PRICE—CAPEX INVESTMENTS FOR THESE FOUR YEARS AGGREGATED PHP 379 BILLION, INCLUDING AN ESTIMATED BUDGET OVERRUN OF NO MORE THAN PHP 48 BILLION. WE MUST STRESS THAT THE MAXIMUM PHP 48 BILLION CAPEX BUDGET OVERRUN REPRESENTS ABOUT 12.7% OF TOTAL CAPEX SPEND OVER THE PERIOD." As a result, the Philippines' SEC launched an inquiry into the 48-billion peso ($866 million) capital spending budget overrun at PLDT Inc. that triggered a record plunge in the stock amid questions over its corporate governance and fiscal control. On this news, on December 19, 2022, PLDT's share price fell $6.35 per share, or more than 19%, to close at $20.46 damaging investors. Contact us to learn more: Aaron Dumas (800) 350-6003 adumas@robbinsllp.com Shareholder Information Form About Robbins LLP: A recognized leader in shareholder rights litigation, the attorneys and staff of Robbins LLP have been dedicated to helping shareholders recover losses, improve corporate governance structures, and hold company executives accountable for their wrongdoing since 2002. To be notified if a class action against PLDT, Inc. settles or to receive free alerts when corporate executives engage in wrongdoing, sign up for Stock Watch today. Attorney Advertising. Past results do not guarantee a similar outcome. Contact: Aaron Dumas Robbins LLP 5060 Shoreham Pl., Ste. 300 San Diego, CA 92122 adumas@robbinsllp.com (800) 350-6003 www.robbinsllp.com https://www.facebook.com/RobbinsLLP/ https://www.linkedin.com/com [GN] PRISMA LABS: Faces Class Action Over Lensa "Magic Avatar" Feature ----------------------------------------------------------------- Kelsey McCroskey, writing for ClassAction.org, reports that the company behind Lensa faces a proposed class action lawsuit that alleges the mobile app's "magic avatar" feature unlawfully captures, stores, and profits from users' biometric data. The 27-page lawsuit says that through Lensa's "magic avatar" feature, app developer Prisma Labs collects, stores, and benefits from scans of facial geometry data gleaned from uploaded selfies without disclosing to users what biometric information is being collected or how long it will be retained, in direct violation of the Illinois Biometric Information Privacy Act. According to the suit, Lensa's "magic avatar" feature, which reportedly caused the app to skyrocket in popularity last November and December, requires a user to upload at least eight selfies, which the app then processes to generate an "art-enhanced," stylized image based on the user's face that can be posted on social media. In the process of creating the "magic avatars" in styles such as "cosmic," "anime," or "fairy princess," the defendant captures a user's facial geometry in order to produce the image -- but also to "train its neural network algorithms" and thereby improve the app, the case explains. "All of which, of course, leads to greater revenue and profits for Prisma," the complaint says. In its privacy policy, Lensa admits to the collection of users' photos and videos, gender, subscription details, communications and any information entered into the app, the filing relays. However, "[n]otably absent from this list is any reference to the facial geometry used to create the magic avatars," the lawsuit contends. In fact, Prisma's privacy policy falsely suggests that facial geometry is not captured because the biometric data is "anonymized," the suit alleges. "This statement simply cannot be true," the case argues. "… [T]he user's identity and facial geometry must be collected in an identifiable way in order for Prisma to deliver its product to the user." In later sections, the defendant's privacy policy contradicts itself as it claims that the company captures "Face Data," which it defines as a term that includes biometric data gleaned from images -- the very thing Prisma denied collecting in previous paragraphs, the complaint charges. Per the lawsuit, Lensa's "magic avatar" feature is under fire for more than alleged privacy violations, however. According to the case, the app's use of an open-source AI model called Stable Diffusion -- which was trained on billions of images from websites like Pinterest, Flickr, DeviantArt, Shutterstock, and more -- has raised copyright concerns from artists whose original art is posted online. Further, the app's capability of creating "highly sexualized images," even of children, is "particularly worrisome," as is its potential to be used by anyone for "insidious purposes," the complaint says. The lawsuit looks to represent anyone residing in Illinois whose biometric data was collected or obtained by Prisma through the use of the Lensa app or otherwise. [GN] PROPERTY SERVICES: Faces Scott Suit Over Telephonic Sales Calls --------------------------------------------------------------- GEORGE SCOTT, individually and on behalf of all others similarly situated v. PROPERTY SERVICES WARRANTY, INC., Case No. 166805828 (Fla. Cir., Feb. 14, 2023) contends that the Defendant promotes its goods and services by placing telephonic sales calls to wireless phone users, in violation of the Florida Telephone Solicitation Act and Telephone Consumer Protection Act. On July 18, 2022, the Defendant sent telephonic sales calls to the Plaintiff's cellular telephone number. The Defendant did not provide the Plaintiff and the Class members with instructions on how to opt-out of future text messages. The Defendant's failure to provide opt-out instructions is indicative of the Defendant's failure to maintain written policies and procedures regarding its text messaging marketing, provide training to its personnel engaged in telemarketing, and maintain a standalone do-not-call list, the suit claims. Accordingly, the Plaintiff never provided the Defendant with express written consent authorizing the Defendant to transmit telephonic sales calls to the Plaintiff's cellular telephone number utilizing an automated system for the selection of dialing of telephone numbers. The Defendant's telephonic sales calls have caused the Plaintiff and the Class members harm, including violation of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, asserts the suit. The Plaintiff seeks an injunction and statutory damages on behalf of himself and the Class members, and any other available legal or equitable remedies resulting from the unlawful actions of the Defendant. Property Services is a full-service warranty company that sells warranties covering HVAC, solar, and electrical systems.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE P.A. 14 Ne 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Office: (786) 289-9471 Direct: (305) 975-3320 Facsimile: (786) 623-0915 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com PROTECH INSTALLATIONS: Fails to Pay Proper Wages, Henderson Says ---------------------------------------------------------------- SETH HENDERSON, individually and on behalf of all others similarly situated, Plaintiff v. PROTECH INSTALLATIONS, INC., Defendant, Case No. 6:23-cv-00127 (W.D. Tex., Feb. 16, 2023) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals and rest periods, and provide accurate wage statements. Plaintiff Henderson was employed by the Defendant as field technician. PRO-TECH INSULATION, INC. operates as drywall, plaster, and insulation contractor. The Company offers installation, maintenance, and repair services. [BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 Email: rburch@brucknerburch.com REAL TIME: Uniform Pretrial Scheduling Order Entered in Jones ------------------------------------------------------------- In the class action lawsuit captioned as Jones v. Real Time Resolutions, Inc., Case No. 5:22-cv-01113-TJM-TWD (N.D.N.Y.), the Hon. Judge Therese Wiley Dancks entered an uniform pretrial scheduling order: -- Any application to join any person as May 1, 2023 a party to the action shall be made on or before: -- Any application to amend any pleading May 1, 2023 in this action shall be made on or before: -- Rule 33 and 34 Requests to be served March 10, 2023 by: -- All discovery in this matter is to be Nov. 2, 2023 completed on or before: -- Discovery motions due: Nov. 16, 2023 Real Time is a full-service loan servicing and recovery company specializing in mortgage, auto, student, credit card, and other consumer loans. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3xugt5N at no extra charge.[CC] REGAL MEDICAL: Austin Sues Over Security Incident and Data Breach ----------------------------------------------------------------- Lynn Austin, individually and on behalf of all others similarly situated v. Regal Medical Group, Inc., Case No. 2:23-cv-01077 (C.D. Cal., Feb. 13, 2023), is brought arising out of the recent data security incident and data breach that was perpetrated against the Defendant (the "Data Breach"), which held in its possession certain personally identifiable information ("PII") and protected health information ("PHI") (collectively, "the Private Information") of the the Plaintiff and other patients of the Defendant, the putative class members( "Class"). According to its notice letters to state Attorneys General and victims of the breach, this Data Breach occurred between December 1, 2022 and December 8, 2022. The Private Information compromised in the Data Breach included certain personal or protected health information of current and former patients, including the Plaintiff. This Private Information included, but is not limited to: names, Social Security numbers, dates of birth, addresses, diagnoses and treatment information, laboratory test results, prescription data, radiology reports, health plan member numbers, and phone numbers. The Data Breach was a direct result of the Defendant's failure to implement adequate and reasonable cyber-security procedures and protocols necessary to protect individuals' Private Information with which it was entrusted for either treatment or employment or both. The Plaintiff bring this class action lawsuit to address Defendant's inadequate safeguarding of Class Members' Private Information that it collected and maintained, and for failing to provide timely and adequate notice to the Plaintiff and other Class Members that their information had been subject to the unauthorized access of an unknown third party and including in that notice precisely what specific types of information were accessed and taken by cybercriminals. The Defendant maintained the Private Information in a reckless manner. In particular, the Private Information was maintained on Defendant Regal's computer network in a condition vulnerable to cyberattacks. The mechanism of the Data Breach and potential for improper disclosure of the Plaintiff' and Class Members' Private Information was a known risk to Defendant, and thus Defendant was on notice that failing to take steps necessary to secure the Private Information from those risks left that property in a dangerous condition. The Defendant disregarded the rights of the Plaintiff and Class Members by, inter alia, intentionally, willfully, recklessly, or negligently failing to take adequate and reasonable measures to ensure its data systems were protected against unauthorized intrusions; failing to disclose that it did not have adequately robust computer systems and security practices to safeguard the Plaintiff' and Class Members' Private Information; failing to take standard and reasonably available steps to prevent the Data Breach; and failing to provide the Plaintiff and Class Members with prompt and full notice of the Data Breach, says the complaint. The Plaintiff was a patient of Regal. The Defendant Regal has been providing health services throughout Southern California for 30 years.[BN] The Plaintiff is represented by: Jill J. Parker, Esq. S. Emi Minne, Esq. PARKER & MINNE, LLP 700 S. Flower Street, Suite 1000 Los Angeles, CA 90017 Phone: (310) 882-6833 Email: jill@parkerminne.com emi@parkerminne.com - and - Gary E. Mason, Esq. Danielle Perry, Esq. Lisa A. White, Esq. MASON LLP 5335 Wisconsin Avenue, NW, Suite 640 Washington, DC 20015 Phone: (202) 429-2290 Email: gmason@masonllp.com dperry@masonllp.com lwhite@masonllp.com REGAL MEDICAL: Fails to Secure Customers' Info, Valentine Says -------------------------------------------------------------- TARA VALENTINE, individually and on behalf of all others similarly situated v. REGAL MEDICAL GROUP, INC., Case No. (Cal. Super., Feb. 14, 2023) alleges that RMG failed to reasonably secure, monitor, and maintain the private information provided to it by its customers and patients as a result of an alleged data breach. The Plaintiff contends that the data breach resulted in unauthorized disclosure, exfiltration, and theft of the Plaintiff's and Class Members' highly personal information, including names, Social Security numbers, dates of birth, addresses, phone numbers ("personally identifying information" or "PII"), and diagnoses and treatments, laboratory test results, prescription data, radiology reports, and health plan member numbers ("protected health information" or "PHI"). On December 1, 2022, the Defendant noticed difficulty in accessing some of its servers. Two months later, on February 2, 2022, the Defendant finally began sending the Plaintiff and other affected parties Notice Letters. The Defendant allegedly did not use reasonable security procedures and practices appropriate to the nature of the sensitive, unencrypted information it was maintaining for Plaintiff and Class Members, causing the exposure of Private Information for approximately 3,300,638 individuals. Accordingly, the Plaintiff, on behalf of herself and other Class Members, asserts claims for Negligence (Count I), a violation of the California Confidentiality of Medical Information Act (Count II), Invasion of Privacy (Count III), Breach of Implied Contract (Count IV), and a violation of California's Unfair Competition Law (UCL) -- Unlawful Business Practice (Count V). Plaintiff Tara Valentine is a resident and citizen of Costa Mesa, California. RMG is one of the largest physician-led healthcare networks in Southern California and has 3000+ primary care doctors, 10,000+ specialists, and hundreds of hospitals, urgent care centers, and labs for patients.[BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Lirit A. King, Esq. BRADLEY/GROMBACHER LLP 31365 Oak Crest Drive, Suite 240 Westlake Village, CA 91361 Telephone: (805) 270-7100 E-mail: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com lking@bradleygrombacher.com - and - Terence R. Coates, Esq. Justin C. Walker, Esq. MARKOVITS, STOCK & DEMARCO, LLC 119 E. Court Street, Suite 530 Cincinnati, OH 45202 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 E-mail: tcoates@msdlegal.com jwalker@msdlegal.com S.O.S. MAINTENANCE: Jimenez Sues Over Unpaid Overtime Wages ----------------------------------------------------------- Norma Jimenez, on behalf of herself and all other persons similarly situated v. S.O.S. MAINTENANCE INC., PETER SEPULVEDA, and MARIA OTANO, Case No. 2:23-cv-01177 (E.D.N.Y., Feb. 13, 2023), is brought for damages and equitable relief based on Defendants' violations of the overtime provisions of the Fair Labor Standards Act ("FLSA") and the New York Labor Law, and the supporting New York State Department of Labor Regulations. The Plaintiff regularly worked more than 40 hours in a single workweek. The Defendant failed to compensate Plaintiff at the statutorily-required overtime rate for all hours that she has worked and works in excess of forty in a week or at least at the statutorily- required minimum wage rate for all hours worked, in violation of the FLSA and NYLL. The Defendant failed to pay Plaintiff any additional compensation for the 5 additional hours that she worked on Saturday each month. The Defendant failed to compensate Plaintiff at the statutorily-required overtime rate for all hours that she worked on call each month in violation of the FLSA and NYLL, says the complaint. The Plaintiff worked for the Defendant as a customer service representative. The Defendant is engaged in the facilities maintenance industry.[BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Phone: (631) 257-5588 Email: promero@romerolawny.com SA HOSPITALITY: Rodriguez Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against SA Hospitality Group, LLC. The case is styled as Daniel Rodriguez, on behalf of himself and all others similarly situated v. SA Hospitality Group, LLC d/b/a Sant Ambroeus, Case No. 1:23-cv-01188 (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. SA Hospitality Group, LLC doing business as Sant Ambroeus -- https://www.santambroeus.com/ -- is an Italian Hospitality group based in New York City consisting of restaurants, coffee bars, and a gelateria in New York City, Southhampton, and Palm Beach.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com SAFE HAVEN: Faces Jackson Suit Over Technicians' Unpaid Overtime ---------------------------------------------------------------- JOSEPH JACKSON, on behalf of himself and all others similarly situated, Plaintiff v. SAFE HAVEN SECURITY SERVICES, LLC, a Foreign Limited Liability Company (fka) SAFE HAVEN SECURITY SERVICES, INC., Defendant, Case No. 2:23-14015-XXXX (S.D. Fla., January 20, 2023) brings this collective action complaint against the Defendant for its alleged failure to pay overtime compensation in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as an installation technician, services technicians, or other job titles performing the same and/or similar duties from April 2019 through 13, 2021. The Plaintiff claims that although he worked at least 60 hours or more during his employment with the Defendant, the Defendant did not pay him overtime compensation at the rate of one and one-half times his regular rates of pay for all hours worked in excess of 40 per workweek. Allegedly, the Defendant's failure to pay the Plaintiff and other similarly situated technicians' overtime for overtime hours worked was willful and lacked a good faith basis. The Plaintiff seeks to recover all unpaid overtime compensation against the Defendant, for himself and all other similarly situated technicians, as well as liquidated damages, compensation for illegal deductions from pay, pre- and post-judgment interest, litigation costs and expenses together with reasonable attorneys' fees, and other relief as the Court deems just and proper. Safe Haven Security Services, Inc. sells security systems. [BN] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 10368 West State Road 84, Suite 103 Davie, FL 33324 Tel: (866) 344-9243 Fax: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com SAIRAM FOOD: Gonzalez Sues Over Unpaid Minimum, Overtime Wages -------------------------------------------------------------- Saul Gonzalez, and other similarly current and former Tandoori Cooks and Dish Washers v. SAIRAM FOOD CORP d/b/a PISTA HOUSE, SILU DOE, and SRIMANNARAYANA GINJUPALLI, Case No. 9:23-cv-01308 (E.D.N.Y., Feb. 17, 2023), is brought arising out of the Defendants' failure to pay the Plaintiff: all hours worked; overtime calculated at one and one half the minimum wage rate for all hours worked in excess of forty hours per work week; spread of hours pay for the days in which Plaintiffs worked in excess of ten hours; wage notices; wage statement that conform with the requirements of the Fair Labor Standards Act ("FLSA"), New York Labor Law ("NYLL"), and applicable regulations. The Plaintiff was not paid for all hours worked, hours in excess of forty hours in a work week, spread of hours for having worked more than 10 hours a day, failed to issue the Plaintiff a wage statement and notice. The Defendant's unlawful practices, in violation of the NYLL and applicable regulations include the failure to pay the Plaintiff a minimum wage, wages due for overtime hours worked at not less than one and one-half times the hourly rate for all hours worked in excess of 40 hours in a workweek. Said regulations include the Defendant's failure to pay the Plaintiff for hours worked in excess of 10 per day in spread of hours pay, failing to provide wage statements and wage notices. The Plaintiffs seeks compensatory damages, attorneys' fees, and other appropriate relief under the FLSA and the NYLL, says the complaint. The Plaintiff worked for Defendant as a Tandoori Cook and Dish Washer. SAIRAM FOOD CORP is registered as a domestic business corporation organized and existing under the laws of the State of New York.[BN] The Plaintiff is represented by: Jason Tenenbaum, Esq. THE MUHLSTOCK LAW FIRM 35 Pinelawn Rd, Suite 105E Melville, New York 11747 SANDORA CAPITAL: Parrilla Sues Over Unsolicited Telephone Calls --------------------------------------------------------------- The case, EDWIN PARRILLA, individually and on behalf of all others similarly situated, Plaintiff v. SANDORA CAPITAL, LLC, Defendant, Case No. CACE-23-000828 (Fla. 17th Jud. Cir. Ct., January 20, 2022) arises from the Defendant's alleged violations of the Florida Telephone Solicitation Act. The Plaintiff claims that the Defendant sent him at least two unsolicited text messages to his telephone number (954) 600-0928 since July 6, 2022 without obtaining his prior express written consent. Upon information and belief, the Defendant utilizes mass text messaging or SMS marketing via an “automated system for the selection or dialing of numbers” to send unsolicited text messages in an attempt to promote its services. As a result of the Defendant's unlawful conduct of placing telephonic sales calls using an automated system for the selection or dialing of numbers to the Plaintiff and other consumers without their prior express written consent, the Plaintiff and other similarly situated individuals were damages. Their privacy was wrongfully invaded and they become aggravated having to deal with repeated, unwanted robo-text messages forcing them to divert attention away from their work and other activities, says the suit. Thus, on behalf of himself and other similarly situated individuals, the Plaintiff brings this complaint as a class action seeking to recover statutory damages against the Defendant, and an injunction prohibiting the Defendant from its unlawful conduct that violated FTSA, as well as reasonable attorney's fees and costs, and other relief as the Court deems reasonable and just. Sandora Capital, LLC is a financial company specializing in small business funding. [BN] The Plaintiff is represented by: Simeon Genadiev, Esq. THE G LAW GROUP 429 Lenox Ave., Suite 442 Miami Beach, FL 33139 Tel: (305) 486-7468 E-mail: sgenadiev@theglawgroup.com - and - Alexander J. Korolinsky, Esq. AJK LEGAL 1580 Sawgrass Corp Pkwy, Suite 130 Sunrise, FL 33323 Tel: (877) 448-8404 E-mail: korolinsky@ajklegal.com SECURITAS SECURITY: Ulloa Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Securitas Security Services USA, Inc., et al. The case is styled as Michael Angel Ulloa II, an individual, on behalf of himself and all others similarly situated v. Securitas Security Services USA, Inc., Does 1 through 50, Inclusive, Case No. CGC23604680 (Cal. Super. Ct., San Francisco Cty., Feb. 14, 2023). The case type is stated as "Other Non-Exempt Complaints (Class Action Complaint Other Employment)." Securitas -- https://www.securitasinc.com/ -- is a leading provider of custom security & guarding solutions.[BN] The Plaintiffs are represented by: Matthew J. Matern, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Ave., Ste. 200 Manhattan Beach, CA 90266-2497 Phone: 310-531-1900 Fax: 310-531-1901 Email: MMatern@maternlawgroup.com SILVERGATE BANK: Faces Bhatia Suit Over Cryptocurrency Scheme ------------------------------------------------------------- SOHAM BHATIA, individually and on behalf of all others similarly situated, Plaintiff v. SILVERGATE BANK; SILVERGATE CAPITAL CORPORATION; and ALAN J. LANE, Defendants, Case No. 3:23-cv-00667-AGT (N.D. Cal., Feb. 14, 2023) is an action against the Defendants for aiding and abetting a multibillion-dollar fraudulent scheme orchestrated by Sam Bankman-Fried through two of his entities, the cryptocurrency exchange FTX and the cryptocurrency hedge fund Alameda Research LLC. According to the Plaintiff in the complaint, Bankman-Fried and FTX perpetrated a fraud upon the Plaintiff and class members through materially false and misleading statements and omissions that misled the Plaintiff and class members about the nature of FTX investments and how investor money would be used. Bankman-Fried and FTX knew these statements to be false. The Plaintiff and class members reasonably relied to their detriment upon those misrepresentations when they invested with FTX, says the suit. On the other hand, Silvergate substantially assisted the fraud perpetrated by FTX and Bankman-Fried, with knowledge that they were defrauding investors like the Plaintiff and class members. In connection with providing substantial and material assistance to Bankman-Fried and FTX, Silvergate knew of its role in their scheme, and acted knowingly in assisting, the suit alleges. SILVERGATE BANK provides commercial banking services. The Bank offers certificates of deposit, business savings, checking, money market, cash management, online banking, and merchant card processing services. Silvergate Bank serves customers in the State of California. [BN] The Plaintiff is represented by: Michael J. Reiser, Esq. Matthew Reiser, Esq. Isabella Martinez, Esq. REISER LAW, P.C. 1475 N. Broadway, Suite 300 Walnut Creek, CA 94596 Telephone: (925) 256-0400 Email: michael@reiserlaw.com matthew@reiserlaw.com isabella@reiserlaw.com - and - Jason Kellogg, Esq. Victoria J. Wilson, Esq. Marcelo Diaz-Cortes, Esq. LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP 100 Southeast Second Avenue 36th Floor Miami, FL 33131 Telephone: (305) 403-8788 Email: jk@lklsg.com vjw@lklsg.com jk@lklsg.com SIXT RENT A CAR: Lopez Files Suit in S.D. Florida ------------------------------------------------- A class action lawsuit has been filed against SIXT Rent A Car, LLC. The case is styled as Ernesto Lopez, individually and on behalf of all others similarly situated v. SIXT Rent A Car, LLC, Case No. 0:23-cv-60293-WPD (S.D. Fla., Feb. 14, 2023). The nature of suit is stated as Other Contract for Breach of Insurance Contract. SIXT Rent A Car -- https://www.sixt.com/ -- was founded in Munich, Germany in 1912, and started out with a fleet of just three vehicles.[BN] The Plaintiff is represented by: Christopher J. Lynch, Esq. CHRISTOPHER J. LYNCH, P.A. 6915 Red Road, Suite 208 Coral Gables, FL 33143 Phone: (305) 443-6200 Fax: (305) 443-6204 Email: clynch@hunterlynchlaw.com - and - Edmund Alonso Normand Amy Lynn Judkins NORMAND PLLC 3165 McCrory Place, Ste. 175 Orlando, FL 32803 Phone: (407) 603-6031 Email: Ed@ednormand.com amy.judkins@normandpllc.com SONY INTERACTIVE: Bid to Dismiss Caccuri Class Complaint Denied --------------------------------------------------------------- In the case, AGUSTIN CACCURI, Plaintiff v. SONY INTERACTIVE ENTERTAINMENT LLC, Defendant, Case No. 21-cv-03361-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California denies Sony's motion to dismiss the Plaintiffs' consolidated amended class action complaint. Sony moves to dismiss the Plaintiffs' CACAC, which avers violations of federal antitrust law, the California Unfair Competition Law, CAL. BUS. & PROF. CODE Sections 17200 et seq., and unjust enrichment. The Plaintiffs allege that Sony has engaged in anticompetitive conduct by halting the sale of digital PlayStation game download cards to third-party retailers. Their antitrust theory arises under Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), which establishes that a company engages in "prohibited, anticompetitive conduct" when (1) it unilaterally terminates a voluntary and profitable course of dealing; (2) "the only conceivable rationale or purpose is to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition"; and (3) "the refusal to deal involves products that the defendant already sells in the existing market to other similarly situated customers." The Plaintiffs' initial complaint was dismissed on July 15, 2022. The order concluded that, although the Plaintiffs had "adequately alleged a cognizable aftermarket," and had demonstrated antitrust injury, they had not adequately pleaded any of the three Qualcomm elements. Because the Plaintiffs had failed to explain how Sony generated a revenue stream from the sale of download codes by third party retailers, it would be difficult to analogize to Aspen Skiing. The motion to dismiss was therefore granted, with leave to amend, and the Plaintiffs subsequently filed the CACAC. Having reviewed the amendments in the CACAC, Judge Seeborg denies Sony's motion. Accepting the Plaintiffs' averments as true and construing the pleadings in their favor, as is required, he finds that the CACAC adequately describes the process under which Sony profited from the previous course of dealing. Sony and the Plaintiffs disagree as to whether the Plaintiffs are required to plead that the "only conceivable rationale or purpose" of Sony's conduct was to harm competition. The Plaintiff argues that, to the extent this is in fact an element of Aspen Skiing antitrust liability, it need not be shown at the pleading stage. Sony bluntly replies that this makes no sense, as a plaintiff must plead each element of his or her claim, and that Plaintiffs here have fallen short. Judge Seeborg holds that both parties are partly right and partly wrong. He says FTC v. Qualcomm Inc., 969 F.3d 974, 993-994 (9th Cir. 2020), does require a plaintiff ultimately to prove that the defendant's "only conceivable rationale or purpose" was to exclude competition, and as such the pleadings must allege facts supporting this element. However, the CACAC does so, if just barely, by alleging that Sony's financial performance with retail partners was not the impetus for Sony's decision to refrain from selling digital games through retailers, and by refuting the notion that Sony sought to save costs by claiming that Sony continued selling gift cards through these retailers -- products that would seem to incur similar types of overhead as the digital game cards. That Sony's motion identifies other potential rationales behind its conduct presents an affirmative defense and a question of fact, both of which are better left for a later stage of litigation. The CACAC, therefore, states a claim, and Sony's motion is denied. A full-text copy of the Court's Feb. 7, 2023 Order is available at https://tinyurl.com/5n8r3kjb from Leagle.com. SUR LA TABLE: Court Grants Chen Leave to Amend Consumer Suit ------------------------------------------------------------ In the case, WEIMIN CHEN, Plaintiff v. SUR LA TABLE, INC., et al., Defendants, Case No. 2:21-cv-00370-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, grants Defendants SLT Holdco, Inc., SLT Lending SPV, Inc., SLT IP Holdings, LP, and CSC Generation Holdings, Inc.'s Motion to Dismiss and dismisses the case as to the four moving Defendants with leave to amend. On Feb. 24, 2021, Mr. Chen filed the two-count class action in King County Superior Court, alleging that Defendant Sur La Table, Inc., had violated the Washington Commercial Electronic Mail Act ("CEMA") and the Washington Consumer Protection Act ("CPA") by transmitting at least 22 commercial emails with purportedly false or misleading information in their subject lines to Mr. Chen and other consumers. On March 10, 2021, Mr. Chen filed the operative First Amended Complaint, which added five John Doe Defendants and the four moving Defendants: SLT Holdco, Inc., SLT Lending SPV Inc., SLT IP Holdings, LP, and CSC Generation Holdings, Inc. (collectively, "SLT"). According to Mr. Chen, Sur La Table is a Washington-based kitchenware and dinnerware retailer that operates approximately 130 stores throughout North America (including at least two locations in Washington State) as well as an online store at www.surlatable.com. He alleges that it conducts its business through various business entities, which include Sur La Table, Inc., SLT Holdco, Inc., SLT Lending SPV, Inc., SLT IP Holdings, LP, CSC Generation Holdings, Inc., and the John Doe Defendants (together, "Sur La Table"). Mr. Chen's FAC alleges that Sur La Table sent, or participated in the sending of, marketing emails to consumers with subject lines that falsely or misleadingly indicated that the person could receive a specified percentage-off discount on their entire purchase or on one item of their choosing. The subject lines of the emails included language, such as: "xx% Off Your Purchase," "xx% Off Your Order," or "xx% Off One Item." Mr. Chen's FAC alleges that Sur La Table's subject lines are false or misleading in that an ordinary consumer would understand these statements to mean that Sur La Table was offering a percentage-off discount from its regular selling prices for all of its products, when, allegedly approximately 25% of its products -- including its most popular products -- were excluded from the advertised sale. On March 18, 2021, SLT removed the action to this Court pursuant to 28 U.S.C. Sections 1332, 1441, 1446, 1453 and Fed. R. Civ. P. 81(c), asserting original federal jurisdiction under 28 U.S.C. Sections 1332(d)(2) and 1453(b). On March 25, 2021, SLT moved to dismiss Mr. Chen's FAC for failure to state a claim ("Motion"). Mr. Chen filed a response opposing the Motion, SLT filed a reply, and subsequently Mr. Chen filed a sur-reply. First, Judge Martinez examines the CEMA claim. Mr. Chen asserts that SLT violated subsection (b). SLT contends that the subsection prohibits subject lines only when they are false or misleading as to the commercial nature of the email. If SLT's interpretation of subsection (b) is accepted, Mr. Chen fails to state a claim for CEMA. Judge Martinez finds that CEMA's statutory text combined with the statute's legislative history and Washington caselaw supports SLT's interpretation that subsection (b) in CEMA does not prohibit false and misleading information in an email's subject line as to every line of the email -- subsection (b) specifically prohibits false and misleading information as to the nature of the email, i.e. that the email is an advertisement. Mr. Chen's FAC does not allege that Sur La Table's signature lines concealed the commercial nature of their emails. As a result, Mr. Chen fails to state a CEMA claim, and his claim must be dismissed. Because he finds that SLT's interpretation of subsection (b) of CEMA -- that it applies only to email subject lines that are false or misleading as to the commercial nature of the email -- is a reasonable interpretation of the statute based on its plain language and supported by the statute's context, legislative history and caselaw, Judge Martinez need not reach the issue of preemption. He therefore also need not address Mr. Chen's sur-reply. Judge Martinez now turns to the CPA claim. Mr. Chen's CPA claim is based upon a violation of CEMA. For the reasons he stated, Judge Martinez finds that Mr. Chen has failed to state a CEMA claim. Accordingly, his CPA claim should also be dismissed. Lastly, Judge Martinez finds that the deficiencies with the Complaint can possibly be cured by amendment. There has been no evidence of undue delay or bad faith. SLT has not shown an amendment would be futile. Prejudice to SLT if amendment is permitted will be minimal. Weighing all of these factors, leave to amend will be granted. Having reviewed the relevant pleadings and the remainder of the record, Judge Martinez grants SLT's Motion to Dismiss. The Plaintiff's claims against the four moving Defendants are dismissed with leave to amend. The Plaintiff will have 30 days to file an amended complaint. If he fails to do so, the moving Defendants will be removed as defendants in the case. A full-text copy of the Court's Feb. 8, 2023 Order is available at https://tinyurl.com/5n6dkc5r from Leagle.com. SURMODICS INC: Rosen Law Investigates Potential Securities Claims ----------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of Surmodics Inc. (NASDAQ: SRDX) resulting from allegations that Surmodics may have issued materially misleading business information to the investing public. SO WHAT: If you purchased Surmodics securities you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. The Rosen Law Firm is preparing a class action seeking recovery of investor losses. WHAT TO DO NEXT: To join the prospective class action, go to https://rosenlegal.com/submit-form/?case_id=11326 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. WHAT IS THIS ABOUT: On January 19, 2023, Surmodics, Inc. announced it had received a letter from the U.S. Food and Drug Administration related to its premarket approval (PMA) application for the SurVeilTM drug-coated balloon (DCB). In the letter, the FDA indicated that the application is not currently approvable, while providing specific guidance as to a path forward. The letter stated that certain information within two general categories -- biocompatibility and labeling -- must be added by an amendment to the company's PMA application to place it in approvable form. Although the information identified by the Agency to put the PMA application in approvable form would require additional testing and analysis, the letter did not question the human clinical data submitted nor request any further human clinical data. Surmodic stated, "We are evaluating the issues raised in the FDA's letter and plan to meet with Agency representatives regarding its contents. Based on our discussion with the Agency, our team and external advisors will determine the appropriate path forward. Concurrently, we will be evaluating options to reduce our use of cash given this development." On this news, Surmodic's price fell $10.57, or 28.31%, to close at $26.77 on January 19, 2023. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources, or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] TARGET CORP: Wiretaps Electronic Communications, Calderon Claims ---------------------------------------------------------------- DANI CALDERON, individually and on behalf of all others similarly situated, Plaintiff v. TARGET CORPORATION, Defendant, Case 3:23-cv-00692-AGT (N.D. Cal., Feb. 15, 2023) alleges violation of the California Invasion of Privacy Act. The Plaintiff alleges in the complaint that the Defendant aid, agree with, employ, or otherwise enable the wiretapping of the electronic communications of visitors to Target's website, target.com. The wiretaps, which are embedded in the chat function on the Website by third party, Salesforce, Inc., are used without the prior consent of visitors to the Website. The Defendant contracts with Salesforce to provide the software that secretly runs the chat function on Defendant's Website. The electronic communications made in the chat function are routed through the servers of and are used by Salesforce to, among other things, secretly observe and record website visitors' electronic communications in real time. The nature of Salesforce's licensing agreement with Defendant is such that Defendant "aids, agrees with, employs, or conspires" to permit Salesforce to read, attempt to read, to learn, and/or to use the chats without the consent of visitors to the Website, thus violating the California Invasion of Privacy Act, says the suit. TARGET CORPORATION operates general merchandise discount stores. The Company focuses on merchandising operations which includes general merchandise and food discount stores and a fully integrated online business. [BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com - and - Joseph I. Marchese, Esq. Max S. Roberts, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 Email: jmarchese@bursor.com mroberts@bursor.com TESLA INC: To Appeal Verdict in Shareholder Class Action -------------------------------------------------------- Alison Frankel, writing for Reuters, reports that after a stunning Feb. 3 jury verdict cleared Tesla Inc CEO Elon Musk of defrauding shareholders in 2018 tweets boasting that he had secured funding to take Tesla private, Musk is now trying to capitalize on his vindication in a separate battle with the U.S. Securities and Exchange Commission over Musk's right to speak publicly about Tesla. On Feb. 21, Musk's lawyers at Quinn Emanuel Urquhart & Sullivan filed a letter informing the 2nd U.S. Circuit Court of Appeals of the jury's verdict in the shareholder class action, which was tried in federal court in San Francisco. The 2nd Circuit, obviously, is not involved in the class action. But it is hearing a related appeal in which Musk is challenging a provision from his 2018 settlement with the SEC, which had accused Musk of fraud for the "funding secured" missives. Quinn Emanuel, as I'll explain, told the 2nd Circuit in the Feb. 21 letter that Musk's jury win in the shareholder class action undermines the SEC's defense of what the Tesla CEO contends are unconstitutional prior restraints on his ability to talk and tweet about Tesla. The dispute at the 2nd Circuit takes a bit of explaining. You probably recall that the SEC has a longstanding policy of requiring targets to agree, as a condition of settlement, that they will not publicly dispute the SEC's allegations or criticize the government's case. This so-called gag provision is quite controversial. Challengers assert that the SEC can essentially bludgeon targets into ceding constitutional rights, including a crucial right to raise questions about the government's conduct. A handful of federal judges have expressed sympathy for gag rule challengers, but so far, no SEC targets -- including Elon Musk -- have managed to win post-settlement attempts to undo gag provisions in their consent decrees with the SEC. Musk is still trying to loosen that traditional gag, but it's a very long shot. As U.S. District Judge Lewis Liman of Manhattan ruled last year, 2nd Circuit precedent squarely holds that defendants who have consented to SEC gag orders cannot rely on after-the-fact 1st Amendment arguments to undo the agreements. There's little hope for that precedent to be overturned anytime soon, since the U.S. Supreme Court specifically declined last year to take up the issue. But the SEC also imposed additional -- and unusual -- speech restrictions on Musk as a condition of his 2018 settlement: The consent order required the Tesla CEO to obtain pre-approval from a Tesla lawyer before tweeting or otherwise making public statements that could affect Tesla shareholders. Musk has since chafed repeatedly at this so-called "muzzle," accusing the SEC of running constant surveillance on his communications and harassing him with investigations about innocuous public statements. The dispute came to a head in 2021, when Musk tweeted a poll asking followers to vote on whether he should sell 10% of his Tesla stock. The SEC subpoenaed Musk and Tesla about the tweets. Musk went to court, arguing not only that the retroactive gag was unconstitutional but -- more intriguingly, that the pre-clearance requirement is a prior restraint on his free speech. Liman sided with the SEC in his April 2022 decision, chiding Musk for attempting to "retract the agreement he knowingly and willingly entered by simply bemoaning that he felt like he had to agree to it at the time but now -- once the specter of the litigation is a distant memory and his company has become, in his estimation, all but invincible -- wishes that he had not." That's the decision now on appeal at the 2nd Circuit. Musk, in a nutshell, argues that, at a minimum, the court should require the SEC to excise the provision mandating pre-approval of his public statements. "The pre-approval provision in the consent decree qualifies as a prior restraint on speech that runs afoul of the First Amendment," Quinn Emanuel wrote. "It forbids future lawful speech on a range of topics absent approval. It does so under the threat of contempt and subject to the asserted oversight and investigatory authority of the SEC. And it chills such lawful speech due to the threat of burdensome investigation and prosecution." In response, the SEC said the pre-approval process was hardly onerous – it simply required sign-off by a Tesla lawyer, in compliance with protocols the company itself has adopted. The agency also denied that it was surveilling or harassing Musk. The SEC said it was just doing its job of protecting Tesla shareholders, in part by assuring that Musk follows his company's rules. "These interests outweigh Musk's desire to communicate about Tesla without any input from Tesla itself," the SEC said. After all, the agency pointed out in a footnote in its appellate brief, shareholders were sufficiently aggrieved by Musk's tweets to have brought their class action in San Francisco -- and the judge in that case, the SEC told the 2nd Circuit, had already determined that Musk's "funding secured" tweets were false and misleading. Musk's new letter to the 2nd Circuit threw that assertion back at the SEC, informing the appeals court that the jury determined Musk's tweets did not, in fact, amount to securities fraud. That finding, argued Quinn Emanuel, undermines the SEC's argument that its interest in protecting Tesla shareholders outweighs Musk's 1st Amendment rights. Indeed, Musk's lawyers argued, Musk represents the broad public interest in his showdown with the SEC. The Tesla CEO, they said, is standing up for the principle that the SEC cannot extort targets into surrendering their constitutional rights. The jury's verdict, Quinn Emanuel said, "provides further reason why the public interest in avoiding unconstitutional settlements easily subsumes the SEC's purported stake in the consent decree." An SEC spokesperson declined my request for comment on the new letter. Alex Spiro of Quinn Emanuel declined to provide a statement. Oral arguments at the 2nd Circuit are scheduled for May 8. [GN] TIMBERLINE CONSTRUCTION: Fails to Pay Proper Wages, Guerrero Says ----------------------------------------------------------------- ANTONIO GUERRERO; BRYCE TUBBS; and THOMAS JONES, individually and on behalf of all others similarly situated, Plaintiff v. TIMBERLINE CONSTRUCTION GROUP, LLC, Defendant, Case No. 2:23-cv-00200-JHE (N.D. Ala., Feb. 16, 2023) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiffs were employed by the Defendant as field employee. Timberline Construction Group LLC was founded in 2013. The company's line of business includes providing special trade contracting services. [BN] The Plaintiff is represented by: David Hughes, Esq. HARDIN & HUGHES, LLP 2121 14th Street Tuscaloosa, AL 35401 Telephone: (205) 523-0463 Facsimile: (205) 344-6188 Email: dhughes@hardinhughes.com TRANSUNION LLC: Wilson Sues Over Illegal Selling of Personal Info ----------------------------------------------------------------- MANDY WILSON, on behalf of herself and all other similarly situated, Plaintiff v. TRANSUNION, LLC, Defendant, Case No. 1:23-cv-00131 (S.D. Ind., January 20, 2023) is a class action complaint brought by the Plaintiff against the Defendant alleging the Defendants of violations of the Fair Credit Reporting Act. The Plaintiff had an alleged debt to US Bank relative to her Kroeger Mastercard. On March 4, 2020, she filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Indiana, commencing bankruptcy case number 20-01283-JJG-7. According to the complaint, the Plaintiff's alleged debt was assigned to and/or purchased by a debt collector, Portfolio Recovery Associates, LLC for collection. However, on or about July 18, 2020, the Bankruptcy Court entered an order discharging the Plaintiff's debt, thereby extinguishing her liability for the debt and the debtor-creditor relationship ended between the Plaintiff and US Bank and/or Portfolio as to the debt. Upon receiving notice of the fact that the Plaintiff had received a bankruptcy discharge, Portfolio communicated to the Defendant that the Plaintiff's alleged debt had been discharged, and that it no longer wished to receive consumer reports and to refrain from sending further consumer reports for the Plaintiff. Accordingly, the Defendant has a symbiotic relationship with Portfolio such that the Defendant receives information furnished to it by Portfolio and also sells information to Portfolio regarding a consumer's creditworthiness and their credit standing. Despite being cognizant of the facts, the Defendant sold the Plaintiff's individual and personal credit file to Portfolio on or about January 20, 2021 and allowed Portfolio to review the Plaintiff's private information without a permissible purpose to do so. Because of the Defendant's unlawful conduct, the Plaintiff had suffered from frustration, anxiety and emotional distress that manifested itself such that the Plaintiff had difficulty falling to sleep and/or staying sleep, and had a loss of appetite. The Plaintiff brings this complaint to recover statutory damages, punitive damages, and actual damages, as well as costs and reasonable attorney's fees and other relief as may be just and proper. Transunion, LLC is a consumer reporting agency. [BN] The Plaintiff is represented by: David M. Marco, Esq. SMITHMARCO, P.C. 5250 Old Orchard Road, Suite 300 Skokie, IL 60077 Tel: (312) 546-6539 Fax: (888) 418-1277 E-mail: dmarco@smithmarco.com TUSIMPLE HOLDINGS: Woldanski Suit Transferred to S.D. California ---------------------------------------------------------------- In the case, PATRICK WOLDANSKI, Individually and on behalf of all others similarly situated, Plaintiff v. TUSIMPLE HOLDINGS, INC.; CHENG LU; PATRICK DILLON; ERIC TAPIA; XIAODI HOU; MO CHEN; JAMES MULLEN; MORGAN STANLEY & CO. LLC; CITIGROUP GLOBAL MARKETS INC.; J.P. MORGAN SECURITIES LLC; BOFA SECURITIES, INC.; CREDIT SUISSE SECURITIES (USA) LLC; COWEN AND COMPANY, LLC; NOMURA SECURITIES INTERNATIONAL, INC.; RBC CAPITAL MARKETS, LLC; NEEDHAM & COMPANY LLC; OPPENHEIMER & CO. INC.; PIPER SANDLER & CO.; ROBERT W. BAIRD & CO. INCORPORATED; and VALUABLE CAPITAL LIMITED, Defendants, Case No. 22 Civ. 9625 (AKH) (S.D.N.Y.), Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York: a. grants the Defendants' motion to transfer venue to the U.S. District Court for the Southern District of California; and b. transfer the case to the Southern District of California. The Plaintiff commenced the federal securities putative class action in November 2022, alleging violations of the federal securities laws under the Securities Act of 1933 (the "Securities Act") and Securities Exchange Act of 1934 (the "Exchange Act"). He seeks compensatory damages on behalf of all persons who: (a) purchased or otherwise acquired Defendant TuSimple securities pursuant and/or traceable to the Registration Statement and Prospectus (collectively, the "Registration Statement") issued in connection with TuSimple's April 15, 2021, initial public offering ("IPO"); and/or (b) that purchased or otherwise acquired TuSimple securities between April 15, 2021, and Oct. 31, 2022, both dates inclusive. On Dec. 9, 2022, Defendants TuSimple, Cheng Lu, Patrick Dillon, Eric Tapia, Xiaodi Hou, and James Mullen moved to transfer venue to the Southern District of California. Judge Hellerstein states that in assessing whether transfer is an appropriate exercise of discretion, courts balance various factors including: (1) the plaintiffs choice of forum; (2) the convenience of witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the convenience of parties; (5) the locus of operative facts; (6) the availability of process to compel the attendance of unwilling witnesses; (7) the relative means of the parties; (8) the forum's familiarity with the governing law; and (9) trial efficiency and the interest of justice. Applying the first step of the inquiry, he finds that the suit could have been brought in the Southern District of California because it is an appropriate venue for the matter and has personal jurisdiction over the Defendants. The Plaintiffs do not contest this. Second, the Southern District of California has personal jurisdiction over all the Defendants. Having determined that the suit could have been brought in the Southern District of California, Judge Hellerstein now turns to the second step of the inquiry and considers whether transfer would be an appropriate exercise of the Court's discretion. He finds that it would be. He says (i) the interests of justice and considerations of trial efficiency favor transfer to the Southern District of California; (ii) S.D. Cal is the locus of operative facts of the case; (iii) S.D. Cal. is where most relevant documents are likely located, where it will be easiest to access proof, and where, on the whole, it will be most convenient for the litigation to proceed for both witnesses and the Parties; (iv) the Plaintiff's choice of forum does not weigh strongly against transfer; and (v) consideration of the comparative familiarity of S.D. Cal. and S.D.N.Y with the governing law and the relative means of the parties do not weigh against transfer. In sum, because the relevant factors favor transfer or are otherwise neutral, Judge Hellerstein holds that the Defendant has made a clear and convincing showing that transfer to the Southern District of California would be convenient for the witnesses and parties and in the interest of justice. Accordingly, the motion to transfer venue is granted. He leaves determination as to the appointment of the lead counsel to the transferee forum. The Clerk of Court will terminate the Defendant's motion and all pending motions, leaving them to the transferee court to decide. A full-text copy of the Court's Feb. 7, 2023 Order & Opinion is available at https://tinyurl.com/my27k32w from Leagle.com. UCOR LLC: Speer Suit Seeks to Stay Class Certification Briefing --------------------------------------------------------------- In the class action lawsuit captioned as CARLTON SPEER, MALENA DAVIS, and ZACHARIAH DUNCAN, on their own behalf and on behalf of all others similarly situated, v. UCOR LLC, Case No. 3:22-cv-00426-TRM-JEM (E.D. Tenn.), the Defendant asks the Court to enter an order staying briefing on Plaintiffs' motion for class certification until UCOR's pending partial motion to dismiss is resolved. In the alternative, UCOR requests that briefing be stayed on the Plaintiffs' motion for class certification pending entry of a scheduling order for discovery and briefing on the issue of class certification. A copy of the Court's order dated Feb. 2, 2023 is available from PacerMonitor.com at https://bit.ly/3EdHxdp at no extra charge.[CC] The Defendant is represented by: William S. Rutchow, Esq. Darius Walker, Jr., Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. SunTrust Plaza, 401 Commerce Street, Suite 1200 Nashville, TN 37219-2446 Telephone: (615) 254-1900 Facsimile: (615) 254-1908 - and - Luci L. Nelson, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The Ogletree Building, 300 North Main Street Greenville, SC 29601 The Plaintiff is represented by: Jesse D. Nelson, Esq. Gina M. Modica, Esq. Clint J. Coleman, Esq. NELSON LAW GROUP, PLLC 10263 Kingston Pike Knoxville, TN 37922 Telephone: (865) 383-1053 E-mail: jesse@nlgattorneys.com gina@nlgattorneys.com clint@NLGattorneys.com UNITED STATES: Bassen Files Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against the United States. The case is styled as Nick Bassen, Isaac Dailey, Andrew Merjil, Paul Rodriguez, Hunter Springer, Derrick Wynne, individually and on behalf of all others similarly situated v. USA, Case No. 1:23-cv-00211-MCW (U.S. Ct. of Fed. Cl., Feb. 13, 2023). The nature of suit is stated as Military Pay - Back Pay. The U.S. -- https://www.usa.gov/ -- is a country of 50 states covering a vast swath of North America, with Alaska in the northwest and Hawaii extending the nation's presence into the Pacific Ocean.[BN] The Plaintiffs are represented by: Dale F. Saran, Esq. DALE F. SARAN, LLC 19744 W 116th Ter Olathe, KS 66061 Phone: (508) 415-8411 Email: dalesaran@gmail.com UNITED STATES: Scheduling Order Entered in Jimenez Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as Bernardo Sanchez Jimenez v. Department of Homeland Security, et al., Case No. 2:22-cv-00967-SSS-JPR (C.D. Cal.), the Hon. Judge Sunshine S. Sykes entered a scheduling order regarding the parties' joint 26(f) reports and class certification motion and hearing deadlines: Event Deadline Deadline for Plaintiff to File Motion May 26, 2023 for Class Certification and Any Class Certification Expert Report Deadline for Defendant to File June 9, 2023 Opposition to Class Certification and Any Class Certification Expert Report Deadline for Plaintiff to File Reply June 16, 2023 in Support of Motion for Class Certification and Any Class Certification Rebuttal Expert Report Class Certification Hearing July 14, 2023 The United States Department of Homeland Security is the U.S. federal executive department responsible for public security, roughly comparable to the interior or home ministries of other countries. A copy of the Court's order dated Jan. 30, 2023 is available from PacerMonitor.com at https://bit.ly/3xn2MWm at no extra charge.[CC] VERTAFORE INC: Court Dismisses Claims in Mulvey Suit With Prejudice ------------------------------------------------------------------- In the case, AARON MULVEY, individually, and on behalf of himself and all others similarly situated individuals, Plaintiff v. VERTAFORE INC., Defendant, Civil Action No. 3:21-CV-00213-E-BN (N.D. Tex.), Judge Ada Brown of the U.S. District Court for the Northern District of Texas, Dallas Division, grants in part and denies in part the Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint. Before the Court is Defendant Vertafore's Motion to Dismiss Plaintiff's Third Amended Complaint, which sought to dismiss the Plaintiff's claims based on standing and failure to state a claim. The United States Magistrate Judge made findings, conclusions, and a recommendation in the case. The Plaintiffs requested an extension of time to file objections. However, the Plaintiff, thereafter, timely filed objections to the United States Magistrate Judge's findings, conclusions, and recommendation on Sept. 6, 2022. As such, the Plaintiff's requested extension, is denied as moot. Judge Brown reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding no error, she accepts the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. She therefore (i) denies Vertafore's motion to dismiss under Rule 12(b)(1) but (ii) grants its motion to dismiss under Rule 12(b)(6). She dismisses the Plaintiff's claims with prejudice by separate judgment. Consequently, Judge Brown denies as moot the Plaintiff's Motion for Class Certification. A full-text copy of the Court's Feb. 7, 2023 Order is available at https://tinyurl.com/yckrs68k from Leagle.com. VICTORIA'S SECRET: Fails to Pay Proper Wages, Harman Suit Alleges ----------------------------------------------------------------- KEVIN HARMAN, individually and on behalf of all others similarly situated, Plaintiff v. VICTORIA'S SECRET & CO.; VICTORIA'S SECRET STORES, LLC; and BATH & BODY WORKS, LLC. (f/k/a L BRANDS INC.), Defendants, Case No. 1:23-cv-01348 (S.D.N.Y., Feb. 16, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. Plaintiff Harman was employed by the Defendants as selling associate. VICTORIA'S SECRET & CO. retails apparel and accessories. The Company offers lingerie, bras, panties, pajamas, sleepwear, swimsuits, and other apparel, as well as offers personal care and beauty products for women. [BN] The Plaintiff is represented by: D. Maimon Kirschenbaum, Esq. Josef Nussbaum, Esq. JOSEPH & KIRSCHENBAUM LLP 32 Broadway, Suite 601 New York, NY 10004 Telephone: (212) 688-5640 Facsimile: (212) 981-9587 VISAGE SCREEN-PRINT: Fails to Pay Proper Wages, Garcia Alleges -------------------------------------------------------------- ALFONSO GARCIA; and ALMA VALADEZ, individually and on behalf of all other similarly situated, Plaintiffs v. VISAGE SCREEN-PRINT, INC., Defendant, Case No. 2023LA000159 (Ill. Cir., Dupage Cty., Feb. 16, 2023) alleges violation of the Illinois Biometric Information Privacy Act. The Plaintiff alleges in the complaint that the Defendant in collecting and storing its employees' fingerprints, failed to comply with BIPA. The Defendant failed in (1) notifying employees the practice is taking place; (2) informing employees of how the practice is implemented; (3) obtaining written consent from the employees to collect and store their biometric data; (4) maintaining their employees' biometric data in a sufficiently secure manner; and (5) maintaining a publicly available disclosure of how the biometric data will be handled and destroyed, says the suit. VISAGE SCREEN-PRINT, INC. provides printing services. The Company specializes in printing tee shirts, sweatshirts, polo shirts, tote bags, towels, shorts, and aprons. [BN] The Plaintiff is represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 107 W. Van Buren, Suite 209 Chicago, IL 60605 Telephone: (773) 831-8000 Email: rlc@beaumontcostales.com whb@beaumontcostales.com VISION SOLAR: Bid to Toss Landy TCPA Suit Dismissed W/o Prejudice ----------------------------------------------------------------- In the case, BRENNAN LANDY, individually and on behalf of other similarly situated, Plaintiff v. VISION SOLAR, LLC d/b/a/SOLAR EXCHANGE, Defendants, Civil Action No. 21-20241 (D.N.J.), Judge Joseph H. Rodriguez of the U.S. District Court for the District of New Jersey dismisses the Defendant's Motion to Dismiss without prejudice. The Plaintiff brings the Class Action Complaint against the Defendant pursuant to the Telephone Consumer Protection Act (the "Act"), 47 U.S.C. Section 227(c), to stop its practice of placing unsolicited telemarketing calls without consent to consumers who registered their phone numbers on the National Do Not Call Registry. The Complaint consists of one count for violation of the Act, arising out of the Plaintiff allegedly receiving more than one "telephone solicitation" from the Defendant within a 12-month period, despite being on the national do-not-call registry. The proposed Class Action Complaint names Vision Solar as the sole defendant. The Defendant moves for dismissal as a matter of law, pursuant to Fed. R. Civ. P. 12 (b)(6), because it claims that no corporate entity named "Vision Solar, LLC d/b/a Solar Exchange" exists or was formed. In support of dismissal, it claims that the Plaintiff wrongfully attempts to combine two legally distinct and separate entities as a single entity without any support for using the legally operative "d/b/a" designation or attempt to link the two entities in the Complaint. The Defendant makes both a facial challenge and an evidentiary challenge in support of its motion. Facially, the Complaint lacks an allegation to support the claim that Vision Solar, LLC did business under the name "Solar Exchange." The Defendant claims this is fatal because "doing business as" names must be registered under Delaware law. It claims that the Plaintiff has sued an entity that does not exist. Finally, the Complaint treats the two entities, Vision Solar and Solar Exchange, singularly and refers to the unlawful alleged activity as having been committed by the "Defendant." The draftsmanship does not parse which of the two named entities engaged in the complained of conduct and leaves open the question of whether actions taken by either entity are attributable to both entities. Without a foundation as to the corporate identification of the sole "Defendant," the Defendant claims that the allegations of unlawful conduct are speculative and seeks dismissal. Although filed as a Rule 12 (b)(6) Motion, the Defendant also provides documents purporting to show that the two corporate entity registrations are no longer current: a Delaware registration for Vision Solar, LLC with a status of "Voluntarily Cancelled," and a Pennsylvania registration for a company called Solar Exchange, LLC with a status of "Terminated." This is at odds with the Complaint which identifies the "Defendant" as a citizen of New Jersey. The printouts from Delaware's and Pennsylvania's respective Division of Corporation websites were supplied to the Court to "to remove any doubt that Vision Solar, LLC and Solar Exchange LLC are entirely separate and distinct entities." For all of these reasons, the Defendant seeks dismissal. As he must, Judge Rodriguez has viewed the allegations in the Complaint in a light most favorable to the Plaintiff and accepts the allegations therein as true. Under Rule 12(b)(6), he says the Court is restrained from considering evidence outside of the complaint, but there are some exceptions. Relevant in the matter, it appears that the exhibits attached to the Declaration of Defendant's Counsel are matters of public record, as the counsel avers they represent printouts from Delaware's and Pennsylvania's respective Division of Corporation websites. In such circumstances, Judge Rodriguez may consider this extraneous evidence. These submissions appear to be relevant, but he finds that, without more, they are not dispositive. At the same time, Judge Rodriguez agrees with the Defendant that the Complaint lacks a sufficient foundation for the connection between Vision Solar and Solar Exchange. The Plaintiff submits that should the Court find that the pleading does sufficiently identify the Defendant and/or the Defendant's conduct, he is able to cure the deficiencies by way of amendment. Therefore, Judge Rodriguez must dismiss the motion without prejudice and with leave to file a curative amendment. For the reasons he stated, Judge Rodriguez dismisses the Defendant's Motion to Dismiss without prejudice. The Plaintiff will be given leave to file an Amended Complaint sufficiently setting forth the identity of the corporate defendant. An appropriate Order will be issued. A full-text copy of the Court's Feb. 7, 2023 Opinion is available at https://tinyurl.com/y2ajxj55 from Leagle.com. VOLUNTEERS OF AMERICA: Thompson Seeks Caregivers' Unpaid Overtime ----------------------------------------------------------------- ANIA THOMPSON, on behalf of herself and all others similarly situated, Plaintiff v. VOLUNTEERS OF AMERICA OF MINNESOTA and DUNGARVIN, INC., Defendants, Case No. 2:23-cv-00075-PP (E.D. Wis., January 20, 2023) is a collective and class action complaint brought by the Plaintiff against the Defendants pursuant to the Fair Labor Standards Act and Wisconsin's Wage Payment and Collection Laws. The Plaintiff was hired by the Defendant in approximately April 2021 into the position of Caregiver working primarily at client's homes in the Milwaukee, Wisconsin area until his employment ended in approximately January 2023. Throughout the Plaintiff and other similarly situated caregivers' employment with the Defendants, they regularly worked more than 40 hours per week. However, the Defendants paid them on a bi-weekly basis. The Defendants also failed to include all forms of non-discretionary compensation in their regular rates of pay for the purpose of calculating their overtime. As a result, despite working more than 40 hours per week, the Plaintiff and other similarly situated caregivers were not paid proper overtime compensation at the rate of one and one-half times their regular rates of pay for all hours worked in excess of 40 per workweek, says the suit. On behalf of herself and all other similarly situated caregivers, the Plaintiff seeks to recover damages in the form of reimbursement for unpaid overtime wages and/or regular wages for all time spent performing compensable work for which they were unpaid. The Plaintiff also seeks liquidated damages in an amount equal to the amount of wages and overtime wages owed to them, as well as litigation costs and attorneys' fees, pre- and post-judgment interest, and other relief that the Court deems just and equitable. Volunteers of America of Minnesota and Dungarvin, Inc. provide care services. Defendant Dungarvin assumed the ownership, operations, and/or management of Defendant Volunteers of America of Minnesota in approximately December 2022. [BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Drive, Suite 240 Brookfield, WI 53005 Tel: (262) 780-1953 Fax: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com WHITE CASTLE: Ogletree Deakins Discuss BIPA Class Action Ruling --------------------------------------------------------------- Anne E. Larson, Esq., and Harry J. Secaras, Esq., Zachary A. Pestine, Esq., and Zachary V. Zagger, Esq., of Ogletree Deakins, disclosed that on February 17, 2023, the Supreme Court of Illinois held claims under the Illinois Biometric Information Privacy Act (Privacy Act or BIPA) accrue on each and every scan or collection and further allowed so-called per scan damages. The ruling could open employers up to colossal and potentially devastating damages if the legislature does not amend the Privacy Act. Defense counsel for White Castle System, Inc. indicated that White Castle intends to file a petition for rehearing within twenty-one days, a move that will make the decision "non-final" until the petition is ruled on by the Illinois Supreme Court. The 4-3 ruling in Cothron v. White Castle System Inc. comes on a certified question from the federal Seventh Circuit Court of Appeals in a putative class action by a White Castle employee over the use of biometric technology that allegedly scans purported fingerprints in the workplace. The justices rejected arguments that the Privacy Act is violated, if at all, only the first time the alleged fingerprint is scanned or collected. The court rejected a reasonable "first collection" interpretation before it, which could still result in multi-million dollar class actions but limit exposure under Section 15(b) to $1,000 or $5,000 in statutory damages per class member. Instead, the justices held that the "plain language" of Sections 15(b) and 15(d) of the Privacy Act "demonstrates that such violations occur with every scan or transmission." Indeed, the court acknowledged that its interpretation could mean White Castle faces a potential $17 billion-dollar liability. However, the opinion appears to overlook the longstanding canon of statutory construction that a court should interpret a statute to avoid "absurd results." The ruling is tempered only by the court's observation that a judge has the discretion to fashion an award that does not annihilate defendant businesses. This per scan damages ruling would appear to eliminate the reason to file Privacy Act claims as class actions because any person who uses a biometric device for any extended period (without informed consent) can purportedly now collect millions individually. For the court to apply an interpretation that allows such extraordinary liability is a puzzling result when the court has previously stated that there is no physical, emotional or even monetary harm in most Privacy Act cases. Background The Privacy Act, passed in 2008, regulates the use, collection, and storage of biometric data, including retina or iris scans, fingerprints, voiceprints, and scans of hand or face geometry. Specifically, Section 15(b) of the Privacy Act provides that entities, including employers, may not "collect, capture, purchase, receive through trade, or otherwise obtain" individuals' biometric data without providing notice and receiving consent. Section 15(d) further states that a private entity may not "disclose, redisclose, or otherwise disseminate" biometric data without consent. The current case involves a White Castle restaurant manager who filed a proposed class action alleging the company required employees to scan their fingerprints to access pay stubs and computers beginning in 2004. According to the decision, once a scan was taken, it was transmitted to a third-party vendor for verification and to authorize access. The employee alleged that the company did not obtain the requisite consent to the collection under the Privacy Act until 2018, nearly a decade after the statute was enacted and approximately fourteen years after the company began using biometric technology. Plain Language The majority decision rejected White Castle's argument that the employee's claims were untimely because claims under Section 15(b) and 15(d) only accrue once, the first time the biometric data is collected or disclosed. The decision stated that the plain meaning of "collect" and "capture" in Section 15(b) allows for the possibility that they happen more than once. The majority pointed out that company failed to show how technology "could work without collecting or capturing the fingerprint every time the employee needs to access his or her computer or pay stub." Similarly, the majority was not convinced that the term "disclose," which may connote a "new revelation," did not limit the section to first time disclosures. The court said that regardless, the terms in Section 15(d) "are broad enough to include repeated transmissions to the same party." The majority was unpersuaded by White Castle's argument that longstanding Illinois Supreme Court precedent provides that claims only accrue when a legal right is invaded and injury inflicted and that the primary purpose of the Privacy Act is about control -- specifically, control over the privacy and secrecy of one's unique biometric data. Therefore, White Castle argued, when a fingerprint is scanned and transmitted without informed consent, the injury has occurred as plaintiff has lost the right to control his or her biometrics and the information is no longer secret. White Castle further argued that the injury only occurs once because the privacy rights were lost on the first collection and the information is already in the defendant's possession. The majority held that an injury occurs when a statutory provision is violated and that nothing in the Privacy Act limits a claim under Section 15 "to the first time that a private entity scans or transmits a party's biometric identifier or biometric information." Three justices joined a dissenting opinion by Justice David Overstreet that argued the Privacy Act was not "intended to impose cumbersome requirements or punitive, crippling liability on corporations for multiple authentication scans of the same biometric identifier." The dissent further argued that the Privacy Act applies when "a private entity obtains a person's or customer's biometric information without consent" and that it is "axiomatic, however, that a private entity may obtain any one type of a person's biometric information only once, at least until that biometric identifier or information is destroyed." Key Takeaways The Illinois high court held that employers may violate the Privacy Act each time biometric information is collected without requisite notice and consent under the act, including with fingerprint scanning technology used to protect access to sensitive information. This holding may open the floodgates to even more Privacy Act class actions. Further, because the Privacy Act provides for liquidated or statutory damages for "each violation," potential damages in class actions could be devastating for businesses. The decision stated that "concerns about potentially excessive damage awards under the Act are best addressed by the legislature," meaning the issue could still be decided in a legislative forum and require effective lobbying by companies, their trade associations, insurance companies, and consortiums of aligned companies. Furthermore, White Castle's filing of a petition for rehearing will make this decision non-final until the petition is ruled on by the court. In the meantime, employers may want to review their use of biometric technology and ensure they are in compliance with the Privacy Act's policy, notice, and consent requirements. Ogletree Deakins will continue to monitor and report on developments with respect to the Privacy Act cases before the Supreme Court of Illinois and will post updates on the firm's Illinois, Class Action, Technology, and Cybersecurity and Privacy blogs as additional information becomes available. Important information for employers is also available via the firm's webinar and podcast programs. [GN] WINK BROW BAR: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Wink Brow Bar, LLC. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Wink Brow Bar, LLC, Case No. 1:23-cv-01190 (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wink Brow Bar -- https://winkbrowbar.com/ -- offers a dedicated place to go for expert services in regards to brow and eye zone treatments as well as a vegan clean beauty line of curated products.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com ZEN RAMEN AND SUSHI: Dawkins Files ADA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Zen Ramen and Sushi, Inc. The case is styled as Elbert Dawkins, on behalf of himself and all others similarly situated v. Zen Ramen and Sushi, Inc., Case No. 1:23-cv-01189 (E.D.N.Y., Feb. 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Zen Ramen and Sushi, Inc. -- https://zenramensushi.com/ -- is a Ramen restaurant.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com [*] 2023 Class Action Money & Ethics Conference - Register Now! --------------------------------------------------------------- Register now for the 7th Annual Class Action Money & Ethics Conference! The in-person conference will be held at The Harmonie Club, New York City, on Monday, May 8th, 2023. This value-packed event features special presentations from keynote speakers, live panel discussions with industry experts and networking with other professionals. Visit https://www.classactionconference.com/ for more information. The conference is presented by Beard Group, Inc. [*] UK Law Firms Earned GBP-1B From U.S.-Style Class Action Suits ----------------------------------------------------------------- Jonathan Ames, writing for The Times, reports that British law firms have earned an estimated GBP1 billion from "a wave" of American-style class action lawsuits since legal restrictions were loosened eight years ago. A report says that nearly 30 group action claims relating to competition issues have been filed since 2015, brought under the Consumer Rights Act, which allows cases to be filed on an opt-out basis, meaning every potential claimant is automatically included. Since the act came in to force, multibillion-pound actions against companies including Apple, Google and Meta have been issued, involving an estimated 195 million claimants. On Feb. 21, lawyers announced a class action claim against Visa and Mastercard, worth an estimated £7.5 billion. The claim, the latest against global credit card businesses, is being brought by the London office of [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***