/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/241128.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 28, 2024, Vol. 26, No. 239 Headlines 3M COMPANY: Sullivan Sues Over Exposure to Toxic Film-Forming Foams ABBOTT LABORATORIES: Monastiriakos Sues Over Data Breach ADAPTHEALTH LLC: Parties Seek to Stay Remaining Class Cert Deadline ADDSHOPPERS INC: Loses Bid to Compel Lineberry to Produce Docs ALASKA: Plaintiff Seeks Leave to File Documents Under Seal ALASKA: Suit Seeks to Certify Rule 23 Class Action AMERICAN AIRLINES: New Claims in Barnhizer Suit Dismissed AMERICAN FAMILY: Class Cert Bid Filing in Hirsch Due Jan. 19, 2025 AMERICAN FAMILY: Class Cert Bid Filing in Varney Due Jan. 19, 2025 ANCESTRAL SUPPLEMENTS: Website Inaccessible to the Blind, Suit Says BAYER US: Third Circuit Revives Class Claims on Antifungal Sprays BENELUX CORP: Bid for Arbitration in Mertens Suit Granted in Part BLACKSTONE MEDICAL: Court Transfers Jones Suit to Illinois Court BOAR'S HEAD: Filing of Amended Complaint Due Dec. 16 BOSELLI INVESTMENTS: Rodriguez Suit Remanded to Adams County Court CAMPBELL SOUP: Misclassified Employees as Independent Contractors CAPITAL ONE: Bid to Strike Jury Demand in 360 Savings MDL Denied CAPITAL ONE: Court Narrows Claims in 360 Savings Account MDL CELSIUS HOLDINGS: Faces Shareholder Class Action Lawsuit CLEVELAND, OH: Faces Brown Class Action Suit in North Carolina CO-DIAGNOSTICS INC: Class Certified in Stadium Capital Lawsuit CONNECTICUT: Court Severs Turoczi Suit and Drops All Plaintiffs COSTCO WHOLESALE: Denial of Motion to Sever Claims Upheld CUTLER VIEW: Commercial Property Violates ADA, Pardo Suit Alleges DELOITTE & TOUCHE: IBEW Appointed as Class Representative DIAMOND SOURCE NYC: Liz Sues Over Blind-Inaccessible Website DIVERSIFIED PRODUCTS: Delacruz Sues Over Blind-Inaccessible Website EMPIRE AUTO: Court Dismisses Class Action Claims in Misner Suit ERIGERE RAPIDUS: Court Grants Plaintiff's Motion to Compel FBA OPERATING: Website Inaccessible to the Blind, Davis Suit Claims FLOWERS FOODS: Loses Bid to Compel Arbitration in Brock Suit FLYWHEEL ENERGY: Oliger Seeks to Withdraw Class Certification Bid FRANKLIN WIRELESS: More Info Needed on $166K Fee Motion in Ali Suit GIVAUDAN FLAVORS: Seeks Class Action Status on Plant Explosions GSK SOLUTIONS: Wilson Class Suit Seeks Unpaid OT Wages Under FLSA HALEON US: Faces Campos Suit Over Emergen-C Gummies' Deceptive Ads HANON SYSTEMS: Fails to Pay Operators' OT Wages Under FLSA & OPPA HASKEL INTERNATIONAL: Sanford Lawsuit Remanded to State Court HEALTH MATCHING: Faces Class Action Over Breach of Contract HERTZ GLOBAL: Continues to Defend Doller Securities Class Suit HUMACYTE INC: Bids for Lead Plaintiff Deadline Set January 17 INDEPENDENCE BLUE: Class Settlement Gets Final Court Approval JOHNSON & JOHNSON: May Continue to Face Talc Class Suit in UK KRAFT HEINZ: Grede Accord Has Final OK; Counsel's $5MM Fees OK'd L'OREAL USA: Painter Suit Transferred From W.D. Missouri to Hawaii LAMB WESTON: Ofi Appointed as Lead Plaintiff in Class Action LATCH INC: Court Denies Bid to Transfer Schwartz Securities Suit LAUNDRESS LLC: Court Dismisses Unilever as Defendant in Nixon Suit LAUNDRESS LLC: Court Grants Bid to Toss Safran's Warranty Claims LAUNDRESS LLC: Loses Bid to Dismiss Negligence Claim in Macha Suit LOVE'S TRAVEL: Fudge's Bid to Amend Class Action Complaint Denied MARKFORGED HOLDING: M&A Probes Proposed Merger With Nano Dimension MARSH & MCLENNAN: Court Stays Bohnak Lawsuit MARYLAND: Summary Judgment Order Vacated in Bradford Suit META PLATFORMS: Supreme Court Allows Class Action to Proceed MONGODB INC: Pension Funds Appointed Lead Plaintiffs in Baxter Suit MYSTIC VALLEY: Fails to Secure Personal, Health Info, Barry Alleges NEW YORK CITY: Court Consolidates Calliste and Campbell Suits NEW YORK CITY: Court Denies Calliste's Bid for Mediation and Stay NEW YORK, NY: Court Tosses Remaining Claims in Soybel Suit PEAVEY ELECTRONICS: Website Inaccessible to the Blind, Thorne Says PROGRESS RESIDENTIAL: Faces Class Action Over Tenant Discrimination R1 RCM: District of Nevada Stays Hillbom Class Suit Until Feb. 12 RECKER CONSULTING: Lott's Bid to Notify Employees Under FLSA OK'd RENAISSANCE FMI: Crumwell Sues Over Blind-Inaccessible Website REVENTICS LLC: Fails to Safeguard Personal Info, Coleman Says REVLON CONSUMER: Delacruz Sues Over Blind-Inaccessible Website RITE AID: Member Cases in Acetaminophen MDL Terminated RITE AID: Seeks to Terminate Members Cases in Acetaminophen MDL RRCA ACCOUNTS: Fails to Secure Customers' Info, Whitlock Says SAINT FRANCIS: Faces Class Action Suit Over Unpaid Overtime SAN FRANCISCO: Property Violates Disabilities Act, Pardo Alleges SANDOZ INC: Court Narrows Claims in Price-Fixing MDL SEEMPLICITY SECURITY: Court Narrows Claims in Koeller Lawsuit SEPHORA USA: Court Upholds Dismissal of Espinal Lawsuit SET FORTH: Fails to Secure Customers' Personal Info, Anderson Says TOWER HEALTH: Court Won't Reconsider Dismissal of Santoro's Claims TRACFONE WIRELESS: Fails to Secure Customers' Info, Barcomb Says TRANSUNION LLC: Court Stays Reyes FCRA Class Action TULARE COUNTY, CA: Faces Villasenor Suit Over Sexual Discrimination UNITED STATES: Mootness Order Upheld in Suit v. Austin, et al. US SOLAR: Bid for Class Certification in Tom Suit Due Jan. 9, 2025 VIESTE SPE: Wins Summary Judgment in Crossfirst, et al. Suit WOLFSPEED INC: Faces Zagami Class Suit Over 39.24% Stock Price Drop ********* 3M COMPANY: Sullivan Sues Over Exposure to Toxic Film-Forming Foams ------------------------------------------------------------------- Ronald Sullivan, and other similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No. 2:24-cv-05432-RMG (D.S.C., Sept. 30, 2024), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. Further, the Defendants designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of Decedent's exposure to Defendants' AFFF products at various locations during the course of Decedent's training and firefighting activities. Plaintiff further seeks injunctive, equitable, and declaratory relief arising from the same, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a military and/or civilian firefighter and was diagnosed with hypothyroidism as a result of exposure to Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Phone: 631-600-0000 Facsimile: 631-543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 ABBOTT LABORATORIES: Monastiriakos Sues Over Data Breach -------------------------------------------------------- Kelly Monastiriakos, individually and on behalf of all others similarly situated v. ABBOTT LABORATORIES EMPLOYEES CREDIT UNION d/b/a ALEC, Case No. 1:24-cv-11823 (N.D. Ill., Nov. 18, 2024), is brought on behalf of other who entrusted Defendant with sensitive Personally Identifiable Information ("PII") that was impacted in a data breach that Defendant publicly disclosed in October 2024 (the "Data Breach" or the "Breach"). The Plaintiff's claims arise from Defendant's failure to properly secure and safeguard PII that was entrusted to it, and its accompanying responsibility to store and transfer that information. The Defendant had numerous statutory, regulatory, contractual, and common law duties and obligations, including those based on its affirmative representations to Plaintiff and Class Members, to keep their PII confidential, safe, secure, and protected from unauthorized disclosure or access. On September 23, 2024, Defendant became aware of a security incident on its IT Network.2 Upon discovering the incident, Defendant launched an investigation with the help of leading cyber security experts to determine the nature and scope of the incident.3 As a result of the investigation, Defendant determined that an unauthorized third-party gained access to its IT Network on August 2, 2024. The Defendant failed to take precautions designed to keep individuals' PII secure. Defendant owed Plaintiff and Class Members a duty to take all reasonable and necessary measures to keep the PII collected safe and secure from unauthorized access. Defendant solicited, collected, used, and derived a benefit from the PII, yet breached its duty by failing to implement or maintain adequate security practices. As a result of Defendant's inadequate digital security and notice process, Plaintiff and Class Members' PII was exposed to criminals. Plaintiff and the Class Members have suffered and will continue to suffer injuries including: financial losses caused by misuse of their PII; the loss or diminished value of PII as a result of the Data Breach; lost time associated with detecting and preventing identity theft; and theft of personal and financial information, says the complaint. The Plaintiff received notice letter informing her that her PII was impacted in the Data Breach. The Defendant is a credit union headquartered in Gurnee, Illinois.[BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 227 West Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Email: gklinger@milberg.com - and - Eduard Korsinsky, Esq. Mark Svensson, Esq. LEVI & KORSINSKY, LLP 33 Whitehall Street, 17th Floor New York, NY 10004 Phone: (212) 363-7500 Facsimile: (212) 363-7171 Email: ek@zlk.com msvensson@zlk.com ADAPTHEALTH LLC: Parties Seek to Stay Remaining Class Cert Deadline ------------------------------------------------------------------- In the class action lawsuit captioned as DILLON MYRICK, v. ADAPTHEALTH LLC and HOME MEDICAL EXPRESS, INC. Case No. 6:22-cv-00484-JDK (E.D. Tex.), the Parties ask the Court to enter an order granting the motion to stay the remaining deadlines set by the Court's July 5, 2024, Fourth Amended Scheduling and Plaintiff's reply in support of Plaintiff's motion for class certification. The Plaintiff and Defendants have entered into a settlement agreement in principle and need additional time to finalize all terms of the settlement, execute the necessary documents and finalize dismissal filings. The Plaintiff and Defendants have agreed to mediate this matter with Judge Holderman on Dec. 12, 2024, in accordance with the scheduling order. If any terms continue to be in dispute, the Parties intend to mediate such dispute with Judge Holderman. AdaptHealth operates as a full-service home medical equipment company. A copy of the Plaintiff's motion dated Nov. 15, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=ztWA3k at no extra charge.[CC] The Plaintiff is represented by: Jarrett L. Ellzey, Esq. Leigh S. Montgomery, Esq. Alexander G. Kykta, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford Street Houston, TX 77006 Telephone: (888) 350-3931 Facsimile: (888) 276-3455 E-mail: jarrett@ellzeylaw.com leigh@ellzeylaw.com alex@ellzeylaw.com The Defendants are represented by: Joseph C. Wylie II, Esq. Nicole C. Mueller, Esq. K&L GATES, LLP 70 West Madison Street, Suite 3100 Chicago, IL 60601 Telephone: (312) 372-1121 Facsimile: (312) 827-8000 E-mail: joseph.wylie@klgates.com nicole.mueller@klgates.com ADDSHOPPERS INC: Loses Bid to Compel Lineberry to Produce Docs -------------------------------------------------------------- In the lawsuit captioned ABBY LINEBERRY, et al., Plaintiffs v. ADDSHOPPERS, INC., et al., Defendants, Case No. 3:23-cv-01996-VC (N.D. Cal.), Magistrate Judge Peter H. Kang of the U.S. District Court for the Northern District of California, San Francisco Division, denies the Defendant's request to compel the Plaintiffs to produce the requested discovery. Now before the Court is the Parties' joint discovery letter brief in which Defendant AddShoppers, Inc., seeks an order compelling the Plaintiffs to produce certain discovery. After considering all the briefing, the Court finds this matter suitable for resolution without oral argument pursuant to Civil L. R. 7-1(b). On April 24, 2023, Plaintiffs Abby Lineberry, Terry Michael Cook, and Greg Dessart filed a class action complaint against Defendants AddShoppers, Inc., Presidio Brands, Inc., and Peet's Coffee, Inc., on behalf of themselves and all other similarly situated individuals. The gravamen of the Plaintiffs' complaint is that the Defendants allegedly collected personal identifying information from the Plaintiffs' internet browsing without authorization and improperly used that information. Relevant to the instant dispute, the Plaintiffs allege the following causes of action against AddShoppers: (1) Violations of the California Invasion of Privacy Act ("CIPA"), pursuant to California Penal Code Section 631; (2) Violations of the California Computer Access and Data Fraud Act ("CDAFA"), pursuant to California Penal Code Section 502; and (3) Violations of California's Unfair Competition Law ("UCL"), pursuant to California Business & Professions Code Sections 17200, et seq. On Jan. 17, 2024, the Court issued an order on the Defendants' motion to dismiss detailing which causes of action remain. The Plaintiffs allege that various companies agree to join the so-called "Co-Op" and install the AddShoppers's code on its websites. Specifically, and relevant to the instant discovery dispute, the Plaintiffs allege that AddShoppers collects as much information relating to a user as possible all from different sources, stores that information in a centralized location where it matches data points and creates detailed profiles on individuals, and then uses those profiles to send direct, targeted advertisements from Co-Op companies even when the user did not authorize it. The Plaintiffs' core, relevant allegations revolve around AddShoppers software code, which creates and uses allegedly malicious third-party tracking cookies, which are small text files stored on a user's computer or mobile device after being downloaded from a website. The Plaintiffs allege that the third-party cookie tracks browsing activity, including login information, shopping cart details, and browsing history. The Plaintiffs allege that the hidden tracking cookies can monitor users' activity across the internet and individuals are associated with a unique value with the personal information the user provided to the company, which typically includes, at a minimum, full name, address, payment card information, and email address. Per the complaint, the Plaintiffs allege that when an internet user creates an account or makes a purchase with the business, a third-party tracking cookie is created that includes a unique value AddShoppers associates with that user. The cookie is hidden on the user's browser and automatically sends information to AddShoppers's SafeOpt domain "shop.pe." AddShoppers then associates that unique value with the personal information the user provided to the company, which typically includes, at a minimum, full name, address, payment card information, and email address. The Plaintiffs further allege that third-party cookies, by contrast, are those created by domains other than the one the user is visiting. These cookies are accessible on any website that loads the third-party server's code. Because they can be accessed by multiple domains, third-party cookies can be used to track a user's browsing activity across multiple websites. With the tracking cookie hidden in the user's browser, AddShoppers can monitor the user's browsing activity across the internet. If the user lands on another website in the SafeOpt network, the cookie values "sync" and AddShoppers tracks the user's activity on the website, including the user's detailed referrer Uniform Resource Locator ("URL"). Because AddShoppers already associates personal information with the cookie value, it can directly advertise to the user even where the user leaves a website without affirmatively providing any personal information. On June 6, 2024, the Plaintiffs and AddShoppers filed the instant discovery dispute which, as discussed here, relates to discovery requests seeking documents and materials relating to the Plaintiffs' activities when accessing other websites while browsing the Internet. The instant dispute centers on whether the Defendants can obtain an order compelling the Plaintiffs to produce documents and information (in response to interrogatories) generally relating to the Plaintiffs' historical activities interacting with websites while browsing the Internet. The Parties agree that the Defendant's requests in dispute relate more specifically to the following categories of documents and information sought: (1) copies of every email from Jan. 1, 2020, to the present, which contain advertisements sent to any of the Plaintiffs; (2) copies of every email from Jan. 1, 2020, to the present confirming any purchases made by any of the Plaintiffs; (3) lists of every website where the Plaintiffs provided their email addresses from Jan. 1, 2020, to the present; (4) lists of every website where the Plaintiffs provided their personal information to become a member, subscriber, or authorized account holder from Jan. 1, 2020, to the present; (5) lists of every website where the Plaintiffs made purchases from Jan. 1, 2020, to the present; and (6) lists of every websites where the Plaintiffs have rejected or declined to accept privacy policies and/or terms and conditions from Jan. 1, 2020, to the present. In its letter brief, the Defendant argues, among other things, that it needs the requested discovery to establish that the personal information AddShoppers allegedly obtained about the Plaintiffs has de minimis or zero value. Judge Kang finds that this relevancy argument fails to align with the Plaintiffs' theory of the case as pled in the complaint. First, the Plaintiffs' complaint does not allege that they voluntarily gave their information to AddShoppers or other third parties in the Co-Op in the same way they might when signing up for a service or website, typical of "first-party" cookies. Second, the Plaintiffs allege that their web browsing activities were monitored and associated with their personal information across thousands of sites, all due to AddShoppers's tracking mechanism. Ultimately, AddShoppers's discovery requests conflate the Plaintiffs' voluntary sharing of information in other contexts with the involuntary and undisclosed tracking at issue here, Judge Kang says. Therefore, Judge Kang points out that discovery aimed at all of the Plaintiffs' prior conduct in sharing information with other websites does not directly address the central claims regarding AddShoppers's hidden tracking practices. Whether discovery is relevant is only part of the inquiry, Judge Kang notes. Discovery must also be proportional to the needs of the case. The Parties dispute whether the discovery sought is proportional to the needs of the case and analyze the issue based on whether the discovery is unduly burdensome and whether the Plaintiffs' privacy considerations outweigh the need for the discovery. The Plaintiffs purportedly offered to produce this information for each discovery request related to companies participating in AddShoppers's network, contingent upon AddShoppers identifying those companies. Despite this reasonable offer, AddShoppers refused, citing reluctance to share that list, Judge Kang notes. On the one hand, the Defendant demands that the Plaintiffs provide sensitive, private information, while on the other, it engages in gamesmanship by withholding basic discovery that is critical for both Parties to substantiate their claims. Should the Defendant have concerns about disclosing confidential information, there are well-established procedural mechanisms in place to safeguard such materials, Judge Kang points out. AddShoppers includes a final request for an order compelling the Plaintiffs to produce documents and respond to an interrogatory seeking discovery on their alleged injury-in-fact (and losses) resulting from the Defendant's conduct (seeking to compel responses to Request for Production 8 and Interrogatory 12). From the briefing, the Court is not fully convinced that counsel (including lead trial counsel who are obligated to directly and personally meet and confer with each other prior to presenting a dispute to this Court under the Court's Standing Discovery Order) engaged in the kind of diligent, transparent, and collaborative efforts to meet and confer in good faith as expected by the Court under the applicable legal standards. This particular dispute seeks to compel the Plaintiffs to provide some information; the Plaintiffs committed that they would provide the responses if given necessary predicate information from the Defendant. The Court is disappointed that the Parties could not work out a deal to resolve this dispute, given the state of discussions. Sophisticated, experienced lawyers should know how to resolve discovery disputes such as this, without the need for Court intervention, Judge Kang says. Counsel for all the Parties are admonished that the Court may consider imposing additional discovery management procedures, within the Court's discretion to manage discovery. If counsel for the Parties demonstrate further inability to reach reasonable negotiated resolutions of discovery disputes going forward, the Court may consider modifying the meet and confer requirements in the Court's Standing Order. Accordingly, for these reasons, the Court denies Defendant AddShoppers's motion to compel with regard to Document Requests 4 and 5, and with regard to Interrogatories 3, 4, 5, and 7. The Court further denies without prejudice Defendant AddShoppers's motion to compel with regard to Document Request 8 and Interrogatory 12. Should AddShoppers wish to renew the dispute with regard to Document Request 8 and Interrogatory 12, it must inform the Plaintiffs within three business days of this Order. If such desire arises, lead trial counsel are ordered to meet and confer by themselves only, in-person (if, at the time of the meet and confer, they are both located within the Northern District of California or otherwise within 100 miles of each other) or by videoconference within fourteen business days of the date of this Order in an attempt to resolve the renewed dispute. Within three business days of that meet and confer, the Parties are ordered to file a Joint Status Report on the outcome of that meet and confer, no longer than two pages evenly divided between the parties, which reports on any resolution of the dispute or (if not resolved) sets forth the final offer and counteroffer to compromise made by each Party. The Joint Status Report will include a certification under oath from each first chair trial lawyer for each Party that they personally conducted the meet and confer, that they attempted to resolve the dispute in good faith, how long the meet and confer lasted, where it was conducted, and that each attests that based on their experience the dispute was unable to be resolved despite that lawyer's best efforts. Nothing in this Order prevents the Parties from attempting to resolve the disputes informally prior to the ordered meet and confer of lead trial counsel. This Order resolves Dkt. 114. A full-text copy of the Court's Order dated Nov. 6, 2024, is available at https://tinyurl.com/2jt6d2kr from PacerMonitor.com. ALASKA: Plaintiff Seeks Leave to File Documents Under Seal ---------------------------------------------------------- In the class action lawsuit captioned as Jeremiah M., Hannah M. and Hunter M. by their next friend Lisa Nicolai; Mary B. and Connor B. by their next friend Charles Ketcham; David V., George V., Lawrence V., Karen V., and Damien V. by their next friend Merle A. Maxson; Rachel T., Eleanor T. and Gayle T. by their next friend Rebecca Fahnestock, and Lana H. by her next friend Melissa Skarbek, individually and on behalf of all other similarly situated, v. KIM KOVOL, Director, Alaska Department of Family and Community Services, in her official capacity; KIM GUAY, Director, Office of Children's Services, in her official capacity; ALASKA DEPARTMENT OF FAMILY AND COMMMUNITY SERVICES; and ALASKA OFFICE OF CHILDREN'S SERVICES, Case No. 3:22-cv-00129-SLG (D. Alaska), the Plaintiff asks the Court to enter an order granting the plaintiffs' unopposed motion for leave to file documents under seal. Accordingly, the Plaintiffs move, pursuant to L.R. 7.3(f), to file under seal copies of five summaries created pursuant to Federal Rule of Evidence 1006 (which summarize named plaintiff case files) as well as to redact several emails containing identifying information of children, such as their names. The Plaintiffs plan to include in their publicly filed motion shorter descriptions of the Named Plaintiffs' case files but believe that the identifiable information in the Rule 1006 Summaries is too extensive for the purposes of redaction even with the use of pseudonyms. The Defendants do not oppose the Plaintiffs filing any documents which contain individually identifiable information under seal. Accordingly, Plaintiffs request the Court enter an order allowing an un-redacted copy of the Rule 1006 Summaries to be filed under seal. Specifically, the documents (Exhibits 75 through 79) contain individually identifiable information related to children in the custody of the Office of Children’s Services (OCS), their family members, and other associated individuals, including names, social security numbers, health care providers, and other personally identifiable details. As outlined in the Protective Order, such information must be redacted or pseudonymized before being made publicly available. A copy of the Plaintiffs' motion dated Nov. 15, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=VeUhPQ at no extra charge.[CC] The Plaintiffs are represented by: Marcia Robinson Lowry, Esq. Julia K. Tebor, Esq. Anastasia Benedetto, Esq. David Baloche, Esq. A BETTER CHILDHOOD 355 Lexington Avenue, Floor 16 New York, NY 10017 Telephone: (646) 795-4456 E-mail: mlowry@abetterchildhood.org jtebor@abetterchildhood.org abenedetto@abetterchildhood.org dbaloche@abetterchildhood.org - and - Elena M. Romerdahl, Esq. Hannah Paton, Esq. PERKINS COIE LLP 1029 West Third Avenue, Suite 300 Anchorage, AK 99501 Telephone: (907) 279-8561 E-mail: eromerdahl@perkinscoie.com hpaton@perkinscoie.com - and - James J. Davis, Jr., Esq. Nicholas Feronti, Esq. Savannah V. Fletcher, Esq. NORTHERN JUSTICE PROJECT, LLC 406 G Street, Suite 207 Anchorage, AK 99501 Telephone: (907) 308-3395 E-mail: jdavis@njp-law.com nferonti@njp-law.com sfletcher@njp-law.com - and - Mark Regan, Esq. DISABILITY LAW CENTER OF ALASKA 3330 Arctic Blvd., Suite 103 Anchorage, AK 99503 Telephone: (907) 565-1002 E-mail: mregan@dlcak.org ALASKA: Suit Seeks to Certify Rule 23 Class Action -------------------------------------------------- In the class action lawsuit captioned as Jeremiah M., Hannah M. and Hunter M. by their next friend Lisa Nicolai; Mary B. and Connor B. by their next friend Charles Ketcham; David V., George V., Lawrence V., Karen V., and Damien V. by their next friend Merle A. Maxson; Rachel T., Eleanor T. and Gayle T. by their next friend Rebecca Fahnestock, and Lana H. by her next friend Melissa Skarbek, individually and on behalf of all other similarly situated, v. KIM KOVOL, Director, Alaska Department of Family and Community Services, in her official capacity; KIM GUAY, Director, Office of Children's Services, in her official capacity; ALASKA DEPARTMENT OF FAMILY AND COMMMUNITY SERVICES; and ALASKA OFFICE OF CHILDREN’S SERVICES, Case No. 3:22-cv-00129-SLG (D. Alaska), the Plaintiffs asks the Court to enter an order certifying this case as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). The Plaintiffs ask the Court to certify: -- "General Class:" "All children for whom OCS has or will have legal responsibility and who are or will be in the legal and physical custody of OCS);" and -- "ADA Subclass" "Children who are or will be in foster care and experience physical, cognitive, and psychiatric disabilities)." The Plaintiffs also ask the Court to appoint the undersigned attorneys from A Better Childhood, Perkins Coie LLP, the Northern Justice Project, and Disability Law Center of Alaska as class counsel. A copy of the Plaintiffs' motion dated Nov. 15, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=T6hAoq at no extra charge.[CC] The Plaintiffs are represented by: Marcia Robinson Lowry, Esq. Julia K. Tebor, Esq. Anastasia Benedetto, Esq. David Baloche, Esq. A BETTER CHILDHOOD 355 Lexington Avenue, Floor 16 New York, NY 10017 Telephone: (646) 795-4456 E-mail: mlowry@abetterchildhood.org jtebor@abetterchildhood.org abenedetto@abetterchildhood.org dbaloche@abetterchildhood.org - and - Elena M. Romerdahl, Esq. Hannah Paton, Esq. PERKINS COIE LLP 1029 West Third Avenue, Suite 300 Anchorage, AK 99501 Telephone: (907) 279-8561 E-mail: eromerdahl@perkinscoie.com hpaton@perkinscoie.com - and - James J. Davis, Jr., Esq. Nicholas Feronti, Esq. Savannah V. Fletcher, Esq. NORTHERN JUSTICE PROJECT, LLC 406 G Street, Suite 207 Anchorage, AK 99501 Telephone: (907) 308-3395 E-mail: jdavis@njp-law.com nferonti@njp-law.com sfletcher@njp-law.com - and - Mark Regan, Esq. DISABILITY LAW CENTER OF ALASKA 3330 Arctic Blvd., Suite 103 Anchorage, AK 99503 Telephone: (907) 565-1002 E-mail: mregan@dlcak.org AMERICAN AIRLINES: New Claims in Barnhizer Suit Dismissed --------------------------------------------------------- Judge Mark T. Pittman of the United States District Court for the Northern District of Texas granted American Airlines, Inc.'s motion to dismiss the new claims brought by the plaintiffs in the case captioned as BETH BARNHIZER, ET AL., Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant, Case No. 4:24-cv-00580-P (N.D. Tex.). The claims are dismissed with prejudice. Plaintiff's request for leave to amend is denied. Plaintiffs brought this action against their former employer, American Airlines, Inc., alleging Fraud, Breach of Contract, and Breach of Covenant of Good Faith and Fair Dealing. The Employees were flight attendants during the outbreak of the COVID-19 pandemic. Faced with a declining industry, American offered flight attendants the opportunity to accept its Voluntary Early Out Program, which provided various benefits for employees who chose to take early retirement. Thereafter, American announced that it added additional incentives to the March VEOP and "[t]here won't be any more changes to the plans." Each Plaintiff accepted the March VEOP and subsequently signed a waiver of claims while confirming their acceptance. However, four months later, American offered a "new and improved" VEOP for any of the flight attendants who did not accept the March VEOP. Various flight attendants -- including Plaintiffs in the current action -- brought suit against American in the Northern District of California for alleged violations under the Age Discrimination in Employment Act based on the alleged misrepresentation by American in the March VEOP. That action was dismissed, and the Employees brought new claims against American in this Court. As an initial matter, the Court must consider whether resolving the question of res judicata is appropriate at this stage in the litigation. American raises res judicata as an affirmative defense within its motion to dismiss, citing the employee's prior litigation brought within the Northern District of California -- which the Court properly takes judicial notice of as matters of public record from prior court proceedings. Since American raised res judicata as an affirmative defense based on proper judicially noticed facts and because Plaintiff does not challenge Defendant's failure to plead this affirmative defense, the Court may consider the res judicata issue at this stage. Now, having determined that res judicata may be appropriately considered at this stage, the Court next determines whether res judicata principles preclude relief. The preclusive effect of res judicata requires meeting four elements: "(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.". In this case, the Employees contend that elements three and four have not been met. Employees argue the prior action was not a "final judgment on the merits." Federal Rule of Civil Procedure 41(b) explains that a dismissal for "lack of jurisdiction" is not an adjudication on the merits. Employees thus contend that the prior action was not a "final judgment on the merits" because "the dismissal of the [prior action] was based on a procedural failure to state facts to support a collective claim of constructive discharge under California law." Employees argue element four is met because "constructive discharge is not remotely relevant to Plaintiff's claims of fraud," because the claims involve different evidence, and the cases involve different rights. Employees argue they are not precluded from subsequent litigation because the current claims before the Court could not have been brought in the previous class action for various procedural reasons. They appear to argue that: (1) because the prior action was governed by class action procedures under the Fair Labor Standards Act, they could not have brought the current causes of action because these are governed by FED. R. CIV. P. 23; (2) binding putative class members to a dismissal of a claim precertification would violate their Due Process rights; (3) Supreme Court precedent shows individual class members are not bound by a judgment for claims asserting "pattern or practice" discrimination; and (4) individual fraud claims could not be brought in a class action. The Court is not persuaded. The Court finds all four elements of res judicata have been satisfied, so these claims "should have been raised in [the] earlier suit." Thus, Employees are precluded from bringing these causes of action before this Court. A copy of the Court's Memorandum Opinion & Order is available at https://urlcurt.com/u?l=6RNyoz AMERICAN FAMILY: Class Cert Bid Filing in Hirsch Due Jan. 19, 2025 ------------------------------------------------------------------ In the class action lawsuit captioned as Hirsch, et al., v. American Family Mutual Insurance Company, Case No. 2:23-cv-04005 (W.D. Mo., Filed Jan. 5, 2023), the Hon. Judge Stephen R. Bough entered an order granting joint motion to amend the scheduling order regarding class certification. 1) The Plaintiffs' motion for class certification shall be due on or before Jan. 19, 2025; 2) The Defendant's opposition brief to the Plaintiff's motion for class certification shall be due on Feb. 28, 2025; and 3) The Plaintiffs' Reply Brief shall be due on March 20, 2025. The nature of suit states Diversity-Contract Dispute. AmFam is an American private mutual company that focuses on property, casualty, and auto insurance.[CC] AMERICAN FAMILY: Class Cert Bid Filing in Varney Due Jan. 19, 2025 ------------------------------------------------------------------ In the class action lawsuit captioned as Varney v. American Family Mutual Insurance Company, Case No. 2:23-cv-04004 (W.D. Mo., Filed Jan. 5, 2023), the Hon. Judge Stephen R. Bough entered an order granting joint motion to amend the scheduling order regarding class certification. 1) The Plaintiffs' motion for class certification shall be due on or before Jan. 19, 2025; 2) The Defendant's opposition brief to the Plaintiff's motion for class certification shall be due on Feb. 28, 2025; and 3) The Plaintiffs' Reply Brief shall be due on March 20, 2025. The nature of suit states Diversity-Contract Dispute. AmFam is an American private mutual company that focuses on property, casualty, and auto insurance.[CC] ANCESTRAL SUPPLEMENTS: Website Inaccessible to the Blind, Suit Says ------------------------------------------------------------------- EMANUEL DELACRUZ, on behalf of himself and all other persons similarly situated v. ANCESTRAL SUPPLEMENTS, LLC, Case No. 1:24-cv-08720 (S.D.N.Y., Nov. 15, 2024) sues the Defendant for its failure to design, construct, maintain, and operate its interactive website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons, under the Americans with Disabilities Act. During Plaintiff's visits to the Website, the last occurring on Nov. 13, 2024, in an attempt to purchase Grass Fed Beef Liver and to view the information on the Website, the Plaintiff encountered multiple access barriers that denied the Plaintiff a shopping experience similar to that of a sighted person and full and equal access to the goods and services offered to the public and made available to the public, the suit says. Accordingly, the Plaintiff has suffered and continues to suffer frustration and humiliation as a result of the discriminatory conditions present on the Defendant's Website. These discriminatory conditions continue to contribute to the Plaintiff's sense of isolation and segregation. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. Ancestral Supplements offers health & wellness supplements.[BN] The Plaintiff is represented by: Dana L. Gottlieb, Esq. Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES PLLC 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Dana@Gottlieb.legal Michael@Gottlieb.legal Jeffrey@Gottlieb.legal BAYER US: Third Circuit Revives Class Claims on Antifungal Sprays ----------------------------------------------------------------- Stephanie N. Bedard, writing for ktslaw.com, reports that the Third Circuit breathed new life into claims asserted by four of the nine named plaintiffs in a proposed class action over Bayer's 2021 recall of benzene-contaminated antifungal sprays, finding they had sufficiently alleged they paid for an unusable and essentially worthless product. Huertas v. Bayer US LLC, --- F.4th ----, No. 23-2178, 2024 WL 4703136 (3d Cir. Nov. 7, 2024). In October 2021, Bayer recalled millions of dollars' worth of antifungal spray products with certain lot numbers after discovering benzene in samples of the products. 2024 WL 4703136. In November 2021, two named plaintiffs -- Juan Huertas and Eva Mistretta -- filed a putative class action against Bayer. After the district court dismissed the original complaint without prejudice, the named plaintiffs filed an amended complaint in September 2022 that added seven additional named plaintiffs. All the named plaintiffs alleged they purchased Bayer antifungal spray products during the recall period, but only four of the nine plaintiffs provided lot numbers specified in the recall. In May 2023, the district court dismissed the amended complaint with prejudice for lack of standing, on the grounds that the named plaintiffs failed to sufficiently allege they suffered economic loss or harm stemming from an increased risk of developing a future physical injury as a result of the contaminated spray. The Third Circuit reversed, finding that the plaintiffs had plausibly alleged that the potential contamination and subsequent recall rendered the antifungal sprays worthless and deprived buyers of the benefit of the bargain. The panel explained that "[t]he logic requires little elaboration: if a product contains a manufacturing flaw so severe that it cannot be used, it is not worth the full price purchasers paid with the understanding they would be able to use all of the product." The Third Circuit noted that its conclusion that contaminated products are worth less than uncontaminated products aligned with decisions by other Courts of Appeals. (citing In re Aqua Dots Products Liab. Litig., 654 F.3d 748, 749 (7th Cir. 2011), and Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1085 (11th Cir. 2019)). The Third Circuit distinguished Huertas from a prior opinion, In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278 (3d Cir. 2018), where it rejected claims from a consumer who claimed she did not receive the benefit of the bargain after she fully used a container of talcum powder that allegedly carried a risk of cancer. Unlike in Johnson & Johnson, where the plaintiff had fully consumed the product and did not allege the product was ineffective for its intended purpose, the plaintiffs in Huertas claimed that (1) they were told to stop using and discard the contaminated products; and (2) Bayer allegedly admitted the products were defective when it separately sued the manufacturer of the benzene-contaminated component in the sprays for the costs associated with the recall. However, the Third Circuit affirmed the dismissal of claims brought by five of the nine named plaintiffs who failed to allege a lot number impacted by the recall. Takeaway: The Huertas decision aligns with a growing body of case law finding that plaintiffs may pursue benefit-of-the-bargain theories of economic loss when a manufacturing defect renders contaminated products unusable and thus inherently worth less than uncontaminated products. [GN] BENELUX CORP: Bid for Arbitration in Mertens Suit Granted in Part ----------------------------------------------------------------- Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division, grants in part and denies in part the Defendants' motion to compel arbitration in the lawsuit styled OCTAVIA MERTENS, et al., Plaintiffs v. BENELUX CORPORATION d/b/a PALAZIO MEN'S CLUB, et al., Defendants, Case No. 1:24-cv-00276-RP (W.D. Tex.). Before the Court is the report and recommendation of United States Magistrate Judge Susan Hightower concerning the Defendants' partially opposed motion to compel arbitration. The Defendants timely filed objections, the Plaintiffs filed a response, and the Defendants filed a reply. Plaintiffs Octavia Mertens, Angelica Herrera, Belen Cadena, Kelly Sanchez, Maggie Montes, and Breona Horne bring this class action lawsuit under the Fair Labor Standards Act ("FLSA") against their employer, Benelux Corporation d/b/a Palazio Men's Club; Palazio's owner, Anthanases Stamatopoulos; and Palazio's General Manager, Michael Mealey. On April 30, 2024, the Defendants filed a partially opposed motion to compel certain Plaintiffs' claims--Mertens, Herrera, Cadena, and Sanchez--to arbitration. Mertens, Herrera, and Sanchez do not oppose submitting their claims to arbitration. However, Cadena opposes arbitration, arguing that there is no arbitration agreement to enforce between her and the Defendants because the Defendants did not sign and execute the arbitration agreement. Judge Pitman notes that Plaintiffs Montes and Horne joined this case through the first amended complaint, which was filed after the Defendants' motion to compel arbitration. The Defendants have not moved to compel Montes and Horne to arbitration. Therefore, their claims are unaffected by this order. On Sept. 30, 2024, Judge Hightower issued her report and recommendation. Judge Hightower recommends that this Court deny the Defendants' motion to compel arbitration because they have not shown that there was a valid and enforceable arbitration agreement between them and Cadena. On Oct. 14, 2024, the Defendants timely filed objections. Because the Defendants timely objected to the report and recommendation, the Court reviews the report and recommendation de novo. The Defendants have two main objections. First, the Defendants object to Judge Hightower's recommendation to deny their motion to compel Mertens, Herrera, and Sanchez to arbitration because these three Plaintiffs did not oppose the Defendants' motion to compel. However, the Court reads the magistrate judge's report and recommendation to recommend denying the Defendants' motion to compel arbitration only as to Cadena, the only Plaintiff to have opposed the motion. As such, the Court will grant the Defendants' motion in part and compel Mertens, Herrera, and Sanchez to arbitration based on their representation that their claims are subject to arbitration, and the Court's independent finding that these three Plaintiffs signed enforceable arbitration agreements with the Defendants and their claims fall under these agreements. In their motion, the Defendants request that the Court dismiss these compelled claims without prejudice, or in the alternative, to stay these claims pending resolution of arbitration. The Plaintiffs respond by arguing that the Court should stay the claims, which are submitted to arbitration. Accordingly, the Court will stay Mertens, Herrera, and Sanchez's claims in this case pending arbitration. Second, the Defendants object to the magistrate judge's finding that Cadena should not be compelled to arbitration because there was no valid and enforceable arbitration agreement between Cadena and the Defendants. After reviewing the report and recommendation and the Defendants' objections de novo, the Court agrees with the magistrate judge that the "Arbitration Agreement contains clear and express language that the parties must sign the agreement to give it effect." Because the Defendants did not sign Cadena's arbitration agreement, Judge Pitman holds there is no valid and enforceable arbitration agreement between them and Cadena. Accordingly, for the reasons given in the report and recommendation, the Court overrules the Defendants' objections and adopts the report and recommendation as its own order. Accordingly, the Court orders that the report and recommendation of United States Magistrate Judge Susan Hightower is adopted. The Defendants' motion to compel arbitration is granted in part and denied in part. Mertens, Herrera, and Sanchez's claims are compelled to arbitration. Cadena's claims are not compelled to arbitration and will proceed in this action, alongside the claims of Montes and Horne. Mertens, Herrera, and Sanchez's claims are stayed pending arbitration. The parties will file quarterly status reports detailing the status of the arbitration proceedings, with the first report being due on or before Feb. 6, 2024, and every 90 days thereafter. Judge Pitman orders the parties to consult the website for the United States District Court for the Western District of Texas (www.txwd.uscourts.gov), the "Judges' Info" tab, "Standing Orders," "Austin Division," and submit a joint proposed scheduling order using District Judge Robert Pitman's form on or before Nov. 20, 2024. A full-text copy of the Court's Order is available at https://tinyurl.com/yc8k7jmc from PacerMonitor.com. BLACKSTONE MEDICAL: Court Transfers Jones Suit to Illinois Court ---------------------------------------------------------------- Judge Paul G. Byron of the United States District Court for the Middle District of Florida granted Black motion to stay or transfer the case captioned as JOSEPH JONES, Plaintiff, v. BLACKSTONE MEDICAL SERVICES, LLC, Defendant, Case No. 6:24-cv-986-PGB-EJK (M.D. Fla.). The Clerk of Court is directed to transfer this action to the United States District Court for the Central District of Illinois, terminate any pending motions, and thereafter close the file. The instant lawsuit involves allegations that Defendant, a health care provider selling sleep assistance devices, engaged in unsolicited telemarketing in violation of the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 et seq., and the Florida Telephone Solicitation Act, Florida Statute Sec. 501.059. Initially, on February 14, 2024, Seth Steidinger filed a lawsuit against Defendant in the United States District Court for the Central District of Illinois. Shortly thereafter, Steidinger amended his first complaint, adding Natasha Koller as a Florida plaintiff. In their amended complaint, Steidinger and Koller asserted various claims premised on alleged violations of the TCPA and FTSA. A few months after the Illinois Class Action was filed, on May 28, 2024, Plaintiff instituted the instant putative class action, similarly alleging various violations of the TCPA and FTSA. Now, Defendant moves to transfer the instant lawsuit on the basis of the earlier-filed Illinois Class Action. Plaintiff responded in opposition, and the matter is ripe for review. Essentially, Defendant contends that pursuant to the first-filed rule, a stay or transfer of the instant lawsuit is warranted pending the resolution of the Illinois Class Action. Ultimately, the Court agrees that transfer is warranted under the first-filed rule. The Court considers three primary factors: "(1) the chronology of the two actions; (2) the identity of the parties; and (3) the similarity of the issues." In this case, Defendant argues that "(1) the Illinois case was filed first; (2) there is similarity of parties, i.e. Blackstone; and (3) there is similarity of issues, i.e. whether Blackstone's text messages regarding its sleep studies violated the TCPA and the FTSA and whether the plaintiffs can certify and maintain [such] classes." In opposition to transfer, Plaintiff largely fails to address the above considerations relevant to the first-filed rule. Instead, Plaintiff centers its argument on Florida's interest in adjudicating the dispute and the location in which the parties reside. The Court first addresses the chronology of the actions. It is indisputable that the Illinois Class Action, filed on February 14, 2024, was initiated before the instant lawsuit, filed on May 28, 2024. The Court finds the initial factor for consideration under the first-filed rule clearly weighs in favor of transfer. Next, the Court weighs the similarity of the parties. In both the instant case and the Illinois Class Action, the sole Defendant is Blackstone. According to the Court, two of the purported classes in the Illinois Class Action -- the Internal Do Not Call List Class and the FTSA Class -- closely resemble the two classes proposed in this case. Therefore, the parties are sufficiently similar so as to satisfy the second prong of the first-filed rule, the Court concludes. Lastly, the Court finds that this action presents sufficiently similar issues to the Illinois Class Action. In both of the subject Cases, plaintiffs allege that Defendant sent them unsolicited text messages and calls in order to promote the sale of its home sleep tests. Accordingly, the third factor favors transfer as this case presents similar issues to the Illinois Class Action. The Court finds that there is a clear likelihood of substantial overlap between the subject Cases. A copy of the Court's Order is available at https://urlcurt.com/u?l=oWSJH7 BOAR'S HEAD: Filing of Amended Complaint Due Dec. 16 ---------------------------------------------------- In the class action lawsuit captioned as Frank Pompilio v. Boar's Head Provisions Co. Inc., Case No. 7:24-cv-08220-PMH (S.D.N.Y.), the Hon. Judge Philip Halpern entered a scheduling order as follows: -- Amended complaint due Dec. 16, 2024 -- Motion for preliminary approval of class action settlement due Jan. 14, 2025 Boar's Head is a supplier of delicatessen meats, cheeses and condiments. A copy of the Court's order dated Nov. 18, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=lCVYOt at no extra charge.[CC] The Plaintiff is represented by: Jason P. Sultzer, ESq. SULTZER & LIPARI, PLLC 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerlipari.com BOSELLI INVESTMENTS: Rodriguez Suit Remanded to Adams County Court ------------------------------------------------------------------ Judge S. Kato Crews of the U.S. District Court for the District of Colorado grants the Plaintiff's motion, and remands the lawsuit titled ANA RODRIGUEZ, individually and on behalf of all similarly situated persons, Plaintiff v. BOSELLI INVESTMENTS LLC, Defendant, Case No. 1:23-cv-00314-SKC-TPO (D. Colo.), to the Adams County District Court. Plaintiff Ana Rodriguez is a former employee of Defendant Boselli Investments LLC, which owns a chain of McDonald's restaurants in Colorado. According to the Plaintiff's Class Action Complaint, which she filed in Adams County District Court, the Defendant failed to provide the Plaintiff and the class members with the required rest breaks and lunches during their work shifts in violation of Colorado law. On Feb. 2, 2023, the Defendant filed a Notice of Removal alleging that the Court has jurisdiction in this action pursuant to the Class Action Fairness Act ("CAFA" or "the Act"). Don Anthony Boselli was originally named as a Defendant in the state court action. Mr. Boselli, however, died in May 2021. Although District Judge Regina M. Rodriguez concluded the Defendant satisfied the removal requirements, she also gave the parties 30 days to conduct limited discovery as to whether the home state exception to CAFA applied. The case was transferred to Judge Crews upon his appointment to the district court bench. The Plaintiff filed a renewed Motion to Remand on Jan. 10, 2024, which she supported with expert witness affidavits and summary evidence. In addition to its Response brief, the Defendant filed a Motion to Strike Plaintiff's expert witnesses and evidence. The Plaintiff filed her Reply, which was followed by yet another Motion to Strike from the Defendant. The Court has reviewed the Motions and associated briefing, the entire case file, and the controlling law. No hearing is necessary, Judge Crews holds. For the reasons set forth in this Order, the Court grants the Plaintiff's Motion and remands this case to the Adams County District Court. With her Motion to Remand, the Plaintiff included summary evidence pursuant to Fed. R. Evid. 1006, which governs the admission of summaries to prove the contents of voluminous materials. Specifically, the Plaintiff provided a list comparing the named class members with Colorado voter registration information. In the accompanying affidavit from Anthony Gomez, a class action claims administrator the Plaintiff hired to conduct the comparison, he attested 5,470 out of 7,602 class members were found on the voter registration list. In its Response and first Motion to Strike, the Defendant challenges Mr. Gomez's matching methods, including his use of "naming conventions" of Spanish-speaking countries. The Defendant contends that Mr. Gomez's list of matches contains multiple inaccuracies, rendering it inadmissible under Fed. R. Evid. 1006. In reply, the Plaintiff filed a supplemental list, including only exact name matches between the class members and voter registration. According to this amended list, and a supplemental affidavit from Mr. Gomez, 4,676 of the 7,602 class names were exact matches. In its second Motion to Strike, the Defendant argues the Plaintiff has introduced wholly new evidence and arguments. The Defendant also complains that the Plaintiff has not explained the parameters for the supplemental list and the conclusion that there are now 4,676 matches instead of 5,470. The Court is unmoved. Judge Crews notes that the Plaintiff has, from the beginning, argued that in the event the Court did not find the mandatory exception applied, it could apply the discretionary exception because the evidence demonstrates that at least one-third of the class members are Colorado citizens. Nor is the evidence new. The Plaintiff has used the same class list and the same voter registration information between her original and supplemental match lists, but has now searched for only exact name matches, as opposed to including "matches" based on Spanish-speaking naming conventions. Narrowing the search parameters has, therefore, resulted in a smaller number of matches, Judge Crews points out. To be sure, the Plaintiff's supplemental summary specifically addresses the Defendant's concerns from its first Motion to Strike. Even if these were new arguments and evidence, the Court perceives no prejudice because the Defendant addressed the sufficiency and merits of this evidence in its Motions to Strike, which ostensibly served as an extended response and surreply, respectively. Both Motions to Strike provided the Defendant with far more opportunity to litigate these issues than it would have had if it had simply addressed the Motion to Remand, Judge Crews opines. The Plaintiff's supplemental evidence specifically addressed the Defendant's concerns regarding the original list of matches, and having reviewed the evidence, the Court is satisfied that the summary evidence is competent and reliable and it satisfies Fed. R. Evid. 1006. Judge Crews holds there is no basis to strike this evidence. Because the Court finds this evidence to be credible--and because there is no evidence to the contrary--the Court finds the Plaintiff has met her burden to show by a preponderance of the evidence that at least one-third of the class members are domiciled in Colorado. Judge Crews finds that ultimately, the totality of the circumstances weighs in favor of remand. For these reasons, the Court finds that the interests of justice weigh against exercising its discretionary jurisdiction over this class action. Accordingly, the Court orders as follows: 1. The Plaintiff's Motion to Remand is granted; 2. The Defendant's Motions to Strike are denied; and 3. The Clerk of Court will remand this case to the Adams County District. A full-text copy of the Court's Order is available at https://tinyurl.com/4bvcer6p from PacerMonitor.com. CAMPBELL SOUP: Misclassified Employees as Independent Contractors ----------------------------------------------------------------- SEAN COLE, individually and on behalf of all others similarly situated v. CAMPBELL SOUP COMPANY, a New Jersey corporation; and SNYDER'S-LANCE, INC., a North Carolina corporation, Case No. 1:24-cv-11784 (N.D. Ill., Nov. 15, 2024) seeks to redress Defendants' systemic policy and practice of misclassifying their Distributor employees as "independent contractors," resulting in violations of the Fair Labor Standards Act, the Illinois Minimum Wage Law, Illinois Employee Classification Act, and the Illinois Wage Payment and Collection Act. According to the complaint, Campbell Snacks deploys an independent contractor misclassification scheme to cheat its employees, its competition, and the state and federal governments. In doing so, Campbell Snacks denies these Distributors, including the named Plaintiff, access to critical benefits and protections they are entitled to by law, such as minimum wage, overtime compensation, and indemnification for business expenses/deductions, the lawsuit contends. Through its willful misclassification, Campbell Snacks also robs federal and state governments of tax revenue, causes losses to state unemployment insurance and workers' compensation funds, and gets an undue advantage over its law-abiding competition, the lawsuit adds. The Defendants' Distributors, including the Plaintiff, regularly worked (and continue to work) between 50 and 70 hours per week in accordance with Defendants' mandated schedule. Yet the Defendants never paid the Plaintiff or any member of the FLSA Class any overtime pay, asserts the lawsuit. The Plaintiff has served as a "Distributor" since 2007. Campbell is a "focused brand powerhouse with two divisions: Meal & Beverages and Snacks."[BN] The Plaintiff is represented by: Nickolas J. Hagman, Esq. Kaitlin Naughton, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 S. LaSalle, Suite 3210 Chicago, IL 60603 Telephone: (312) 782-4880 Facsimile: (312) 782-4485 E-mail: nhagman@caffertyclobes.com knaughton@caffertyclobes.com - and - Craig M. Nicholas, Esq. Alex Tomasevic, Esq. Shaun Markley, Esq. Jordan Belcastro, Esq. NICHOLAS & TOMASELVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org smarkley@nicholaslaw.org jbelcastro@nicholaslaw.org CAPITAL ONE: Bid to Strike Jury Demand in 360 Savings MDL Denied ---------------------------------------------------------------- Judge David J. Novak of the United States District Court for the Eastern District of Virginia denied the motion filed by Capital One, N.A. and Capital One Financial Corp. to strike jury demand in In re: MDL No. 1:24md3111 (DJN) CAPITAL ONE 360 SAVINGS ACCOUNT INTEREST RATE LITIGATION (E.D. Va.). Plaintiffs, holders of Capital One "360 Savings" accounts between September 2019 and the filing of the Consolidated Amended Complaint, bring this multidistrict class action, on behalf of themselves and all others similarly situated, against Defendants Capital One, N.A. and Capital One Financial Corp. Plaintiffs' Consolidated Amended Complaint asserts twenty-three claims, including breach of contract and the implied covenant of good faith and fair dealing, violations of the consumer protection or unfair competition statutes of eighteen different states, unjust enrichment and promissory estoppel. Plaintiffs seek to represent a nationwide class "of all persons who have been Capital One 360 Savings accountholders since Capital One created the 360 Performance Savings account," as well as eighteen state subclasses including all such individuals in the states where the named Plaintiffs reside and have requested a jury trial on all triable issues. This matter now comes before the Court on Defendants' Motion to Strike Jury Demand. This consolidated multidistrict action arises out of Defendants' alleged breach of contract and the duty of good faith and fair dealing, as well as violations of various state consumer protection and unfair trade practice laws. Plaintiffs seek to recover lost interest that Defendants' alleged conduct prevented them from earning on their "high interest" 360 Savings accounts. The CAC alleges that Defendants, acting in bad faith, cheated Plaintiffs and similarly situated accountholders out of higher interest payments by creating a duplicate savings account, "360 Performance Savings," and concealing from Plaintiffs the fact that their "high interest" 360 Savings accounts were earning much less interest than the 360 Performance Savings accounts. On February 17, 2012, Capital One announced that it purchased ING Direct USA, which at the time offered an online savings account to United States consumers called "ING Direct." On or about February 1, 2013, after the banks finalized the sale, ING Direct became "Capital One 360." Notably, consumers with ING Direct savings accounts automatically became Capital One "360 Savings" accountholders. Plaintiffs allege that Capital One advertised 360 Savings accounts as having "high interest" or a "great rate" from at least April 2013 until September 2019. In January 2018, with the federal funds effective rate rising, Capital One increased the rate on the 360 Savings account from 0.75% to 1.00%. Plaintiffs allege that Capital One would never raise the interest rate for 360 Savings accounts again. Rather, Plaintiffs allege that Capital One dropped the rate for those accounts from 1.00% in October 2019 to 0.30% in December 2020, where it has remained frozen ever since. Consistent with consumers' reasonable expectations for "high interest" or "high yield" savings accounts, the rates on their accounts previously fluctuated with market conditions, both before Capital One's purchase of ING Direct USA and following their transition to 360 Savings accounts. Plaintiffs allege that Capital One acted deceptively, dishonestly, unfairly, in breach of its contract with 360 Savings accountholders and in violation of consumer protection statutes and common law by failing to preserve "high interest" rates on the 360 Savings rate. The vast majority of named Plaintiffs opened their online savings accounts with ING Direct prior to February 1, 2013. These Plaintiffs allege that their ING Direct accounts were automatically converted to Capital One 360 Savings accounts on or about February 1, 2013. In their Consolidated Amended Complaint, Plaintiffs "demand a trial by jury on all triable issues." In response to Plaintiffs' Consolidated Amended Complaint, Defendants timely filed a Motion to Dismiss and the instant Motion to Strike Jury Demand. In support of their Motion to Strike, Defendants cite the jury trial waiver clause and contend that this language constitutes an "unambiguous," "express" waiver of Plaintiffs' Seventh Amendment right to a jury trial. Plaintiffs filed their Opposition to Defendant's Motion to Strike, arguing that the jury waiver is unenforceable, because Plaintiffs did not waive their right to a jury on a voluntary and informed basis. Defendants filed their Reply on September 13, 2024, rendering Defendants' Motion ripe for review. Defendants fail to establish a basis for the Court to find that Plaintiffs actually waived their right to a jury trial, let alone that they did so on a voluntary and informed basis. The Court cannot conduct a fact-based inquiry without any facts. Consequently, the Court has no choice but to deny Defendant's Motion. Defendants make one evidentiary submission in support of their Motion: a copy of the 360 Savings Account Disclosures agreement with an effective date of June 5, 2024. The 360 Disclosures contain language indicating that Plaintiffs agree to waive their right to a jury by opening or using their Capital One 360 Savings account. Defendants allege that this version of the 360 Disclosures serves as the proper version for the Court to consider, because Plaintiffs purportedly incorporated this version into their Consolidated Amended Complaint. In the alternative, Defendants argue that, since "several Plaintiffs" allege that they continue to be 360 Savings accountholders, the 360 Disclosures continue to bind them, including their June 5, 2024 iteration. The Court finds Defendants' evidentiary submission proves neither relevant nor helpful to the Court's inquiry. The June 5, 2024 version of the 360 Disclosures post-dates the most recent Plaintiff account opening date by more than five years. It post-dates the overwhelming majority of Plaintiffs' account opening dates by more than ten years. Consequently, the Court lacks any factual basis to determine what information Plaintiffs actually saw when they became 360 Savings accountholders. Even if it assumed that the text of the jury trial waiver clause remained unchanged across prior versions, the Court would still be in the dark as to how the text appeared in those prior versions, and significantly (1) where Defendants placed it within the 360 Disclosures and (2) how conspicuously they presented it to Plaintiffs. This complete absence of relevant information renders the Court's four-factor analysis for voluntary and informed waiver impossible. It is not the Court's role to instruct Defendants on how to meet their evidentiary burden. Therefore, the Court will analyze the evidence before it and make its decision on that basis. Judge Novak concludes that with no evidence before it concerning the account terms in place when Plaintiffs opened their 360 Savings accounts, no evidence concerning the account terms in place while Plaintiffs maintained their accounts and no evidence concerning what notice, if any, Plaintiffs received concerning these account terms, the Court cannot perform the fact-based analysis it must conduct to ascertain whether Plaintiffs waived their fundamental right to a jury trial on a voluntary and informed basis. The Court refuses Defendants' invitation to proceed down such a path. Since the burden rests squarely on Defendants to establish that Plaintiffs waived their right to a jury trial on a voluntary and informed basis, and since Defendants fail to meet this burden, the Court denies Defendants' Motion. A copy of the Court's Memorandum Order dated is available at https://urlcurt.com/u?l=Eh64Kf CAPITAL ONE: Court Narrows Claims in 360 Savings Account MDL ------------------------------------------------------------ Judge David J. Novak of the United States District Court for the Eastern District of Virginia granted in part and denied in part the motion filed by Defendants Capital One, N.A. and Capital One Financial Corp. to dismiss the consolidated amended complaint in the multidistrict class action captioned as In re: MDL No. 1:24md3111 (DJN) CAPITAL ONE 360 SAVINGS ACCOUNT INTEREST RATE LITIGATION (E.D. Va.). This case shall proceed on all Counts, except for Counts XVI, XX, XXII and XXIII. Plaintiffs, citizens of eighteen different states and 360 Savings accountholders with Capital One between September 2019 and the filing of the Consolidated Amended Complaint, bring this multidistrict class action, on behalf of themselves and all others similarly situated, against Defendants Capital One, N.A. and Capital One Financial Corp. Plaintiffs' Consolidated Amended Complaint, asserts twenty-three claims, including breach of contract and the implied covenant of good faith and fair dealing, violations of the consumer protection or unfair trade practice statutes of eighteen different states, unjust enrichment and promissory estoppel. Plaintiffs seek to represent a nationwide class "of all persons who have been Capital One 360 Savings accountholders since Capital One created the 360 Performance Savings account," as well as eighteen state subclasses including all such individuals in the states where the named Plaintiffs reside. This matter now comes before the Court on Defendants' Motion to Dismiss the Consolidated Amended Complaint. Plaintiffs seek to recover lost interest that Defendants' alleged conduct prevented them from earning on their "high interest" 360 Savings accounts. The Consolidated Amended Complaint alleges that Defendants, acting in bad faith, cheated Plaintiffs and similarly situated 360 Savings accountholders out of higher interest payments by creating a duplicate savings account, 360 Performance Savings, and concealing from Plaintiffs the fact that their "high interest" 360 Savings accounts were earning much less interest than the 360 Performance Savings accounts. Defendant CONA, located in McLean, Virginia, is a national bank and wholly owned subsidiary of Defendant COFC. Defendant COFC is a holding company incorporated in Delaware and located in McLean, Virginia. On July 1, 2024, Plaintiffs filed the CAC, raising twenty-three counts for relief based on the above allegations. The counts are as follows: Count I brings a claim against CONA for breach of contract and breach of the covenant of good faith and fair dealing under Virginia law for paying a materially lower rate of interest for 360 Savings accounts after creating the 360 Performance Savings product. Count II alleges that COFC violated the Virginia Consumer Protection Act by furtively creating the 360 Performance Savings account while paying a lower rate on the "high interest" 360 Savings account without informing customers. Counts III through XXI assert claims for the same conduct alleged above under the consumer protection and unfair trade practice laws of seventeen different states against both Defendants, unless otherwise noted: Count III: California Consumer Legal Remedies Act; Count IV: California Unfair Competition Law; Count V: Texas Deceptive Trade Practices Act; Count VI: New York General Business Law Sections 349 and 350; Count VII: New Jersey Consumer Fraud Act; Count VIII: Pennsylvania Unfair Trade Practices and Consumer Protection Law; Count IX: Massachusetts Chapter 93A; Count X: Illinois Consumer Fraud and Deceptive Business Practice Act ; Count XI: Maryland Consumer Protection Act; Count XII (against COFC only): Florida Deceptive and Unfair Trade Practices Act; Count XIII: North Carolina Unfair and Deceptive Trade Practices Act; Count XIV: Georgia Fair Business Practices Act; Count XV: Oregon Unlawful Trade Practices Act; Count XVI: Ohio Deceptive Trade Practices Act; Count XVII: Michigan Consumer Protection Act; Count XVIII: Missouri Merchandising Practices Act; Count XIX: Nebraska Consumer Protection Act; Count XX: Nebraska Uniform Deceptive Trade Practices Act; Count XXI: Delaware Consumer Fraud Act. Count XXII brings a claim for unjust enrichment against Defendants, who knowingly retained Plaintiffs' deposits while paying less interest than Plaintiffs should have rightfully received. Lastly, Count XXIII brings a claim for promissory estoppel, based on Plaintiffs' reliance on Defendants' promises of high interest for their 360 Savings accounts. Based upon the foregoing claims, Plaintiffs seek class certification; an award of damages, including punitive damages and treble damages; an award of restitution and/or disgorgement; an award of costs, attorneys' fees and pre- and post-judgment interest; an order declaring Defendants' conduct unlawful and enjoining Defendants from that unlawful conduct; and any other relief that the Court deems appropriate. On July 26, 2024, Defendants filed the instant Motion to Dismiss the Consolidated Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants first argue that Plaintiffs fail to state a plausible claim against COFC. Defendants further argue that each of Plaintiffs' claims against CONA stands preempted by the National Bank Act. Defendants also contend that Plaintiffs fail to state a claim for breach of the implied covenant of good faith and fair dealing under Count I. The Court finds that none of Plaintiffs' claims stand preempted by the National Bank Act (NBA or Act), 12 U.S.C. Sec. 1 et seq., and that Plaintiffs may assert a claim against COFC. Further, the Court finds that Plaintiffs state a claim for breach of the implied covenant of good faith and fair dealing, and that the 360 Disclosures' choice-of-law provision does not prevent Plaintiffs from asserting their claims under the substantive laws of other states. The Court also rejects Defendants' arguments that Plaintiffs fail to allege certain elements of their state statutory claims. However, the Court finds that Plaintiffs lack standing to state a claim under the Ohio DTPA and accordingly will dismiss Count XVI. The Court also finds that Plaintiffs' alternative claims for unjust enrichment (Count XXII) and promissory estoppel (Count XXIII) must be dismissed, because the 360 Disclosures constitute a valid and enforceable contract between the parties. Lastly, the Court will dismiss Plaintiffs' claim under the Nebraska Uniform Deceptive Trade Practices Act (Count XX) on the parties' voluntary agreement. A copy of the Court's Memorandum Opinion is available at https://urlcurt.com/u?l=rHa54t CELSIUS HOLDINGS: Faces Shareholder Class Action Lawsuit -------------------------------------------------------- Robbins LLP announces that a shareholder filed a class action on behalf of all purchasers of Celsius Holdings, Inc. (NASDAQ: CELH) common stock between February 29, 2024 and September 4, 2024. Celsius is a holding company that develops, processes, markets, distributes, and sells energy drinks and liquid supplements in the United States and internationally. For more information, submit a form, email attorney Aaron Dumas, Jr., or give us a call at (800) 350-6003. The Allegations: Robbins LLP is Investigating Allegations that Celsius Holdings, Inc. (CELH) Misled Investors Regarding its Business Prospects According to the complaint, during the class period, defendants failed to disclose that: (a) Celsius materially oversold inventory to Pepsi far in excess of demand, and faced a looming sales cliff during which Pepsi would significantly reduce its purchases of Celsius products; (b) as Pepsi drew down significant amounts of inventory overstock, Celsius' sales would materially decline in future periods, hurting the Company's financial performance and outlook; (c) Celsius' sales rate to Pepsi was unsustainable and created a misleading impression of Celsius' financial performance and outlook; and (d) as a result, Celsius' business metrics and financial prospects were not as strong as indicated in defendants' class period statements. When the truth came out, the price of Celsius' stock dropped, harming investors. What Now: You may be eligible to participate in the class action against Celsius Holdings, Inc. Shareholders who want to serve as lead plaintiff for the class must submit their application to the court by January 21, 2025. A lead plaintiff is a representative party who acts 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. If you choose to take no action, you can remain an absent class member. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. About Robbins LLP: Some law firms issuing releases about this matter do not actually litigate securities class actions; Robbins LLP does. 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. Since our inception, we have obtained over $1 billion for shareholders. To be notified if a class action against Celsius Holdings, 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. [GN] CLEVELAND, OH: Faces Brown Class Action Suit in North Carolina -------------------------------------------------------------- A class action lawsuit has been filed against Registrar of Deeds for Cleveland County. The case is captioned as Thurman Jerome Brown, heir to the estate of Rosa Lee Kee Williams, lead Plaintiff on behalf of himself and others similarly situated, v. Registrar of Deeds for Cleveland County, et al., Case No. 1:24-cv-00283-MR-WCM (W.D.N.C., Nov. 15, 2024). The Defendants are government entities.[BN] CO-DIAGNOSTICS INC: Class Certified in Stadium Capital Lawsuit -------------------------------------------------------------- The Honorable Arun Subramanian of the United States District Court for the Southern District of New York granted the lead plaintiff's motion to certify the class, appoint class representative, and appoint class counsel in the case captioned as STADIUM CAPITAL LLC, on behalf of itself and all others similarly situated, Plaintiff, v. CO-DIAGNOSTICS, INC., DWIGHT H. EGAN, and BRIAN L. BROWN, Defendants, Case No.: 22-cv-6978-AS (S.D.N.Y.). The Court finds that the Class certified herein respectively satisfies the requirements of Rules 23(a) and (b)(3), in that: (a) the members of the Class are so numerous that joinder of all members thereof is impracticable; (b) there are questions of law or fact common to the Class; (c) the claims of the Class Representative are typical of the claims of the other members of the Class; (d) the Class Representative will fairly and adequately represent the interests of the Class; (e) the questions of law or fact common to the Class predominate over any questions affecting only individual members of the Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Accordingly, pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the action is certified to proceed as a class action, on behalf of the following class: All persons and entities who purchased the publicly traded securities of Co-Dx1 during the period May 12, 2022, through the close of the market on August 11, 2022 (4:00 p.m. ET), inclusive, and were damaged thereby. Excluded from the Class are: Co-Diagnostics, Inc., Dwight H. Egan, and Brian L. Brown and Defendants' immediate family members, any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any Defendant, and the legal representatives, agents, affiliates, heirs, successors-in-interest, or assigns of any such excluded party. Lead Plaintiff, Stadium Capital LLC, satisfies the requirements of Rule 23(a) and is appointed as Class Representative. Lead Counsel, Kaplan Fox & Kilsheimer LLP, is appointed as Class Counsel for the Class. A copy of the Court's Order is available at https://urlcurt.com/u?l=MXTxnr CONNECTICUT: Court Severs Turoczi Suit and Drops All Plaintiffs --------------------------------------------------------------- In the lawsuit titled JASON TUROCZI, et al., Plaintiffs v. SCOTT SEMPLE, et al., Defendants, Case No. 3:24-cv-00392-SRU (D. Conn.), Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut severs the action and drops all Plaintiffs other than Jason Turoczi. The ruling addresses a pro se civil rights action brought by 79 incarcerated Plaintiffs. The present action arises from a class decertification in Toliver v. Semple, 3:16-cv-1899 (SRU). Toliver was bought by incarcerated individuals at Osborn Correctional Institution in Somers, Connecticut. The Plaintiffs brought Eighth Amendment claims challenging the conditions of their confinement at Osborn. Specifically, the Plaintiffs alleged they were exposed to hazardous levels of PCBs, friable asbestos, and contaminated water. On Nov. 17, 2023, the parties reached a settlement in principle, and thereafter, jointly moved to decertify the class. On March 6, 2023, Judge Underhill provided notice to potential class members of the intent to decertify the class and urged them to file individual actions "on or before April 1, 2024, or risk being barred by the statute of limitations." The Notice was posted in several locations, including "on the Department of Correction's website" and "in the housing units at Department of Correction facilities." On March 25, 2024, Judge Underhill granted the parties' motion to decertify the class. Decertification ensued a flood of new pro se civil rights actions related to conditions of confinement at Osborn. One was brought by Jason Turoczi. Turoczi first filed the present action with 19 co-plaintiffs. He brought Eighth Amendment deliberate indifference claims alleging that unsafe conditions of confinement at Osborn were caused by asbestos, contaminated water, fire hazards, methane gas, mold, PCB levels, and poor building infrastructure. Turoczi has since twice amended his complaint. Although his claims for relief remain the same, the number of plaintiffs has ballooned to 79. Judge Underhill says it appears that there are factual circumstances unique to each Plaintiff warranting severance. The Plaintiffs share common questions of law insofar as they bring the same claims against the same Defendants. But it is not obvious that each of the asserted claims would apply to each Plaintiff. Because of the sheer number of Plaintiffs, who joined in the action, Judge Underhill anticipates that factual circumstances unique to each Plaintiff may render joinder impracticable. Judge Underhill opines that the practical realities of managing pro se litigation involving multiple incarcerated plaintiffs militate against adjudicating the plaintiffs' claims in one action, citing Pinson v. Fed. Bureau of Prisons, 2024 WL 2133831, at *2 (S.D.N.Y. Apr. 16, 2024). Judge Underhill points out that this action appears to be structured like a class action; it is procedurally improper for pro se parties to bring a class action. Plaintiff Turoczi appears to be assuming the role of a lead Plaintiff, but as a pro se Plaintiff, he cannot represent other Plaintiffs' interests, Judge Underhill opines. Severance is, therefore, necessary to protect each individual Plaintiff's right to represent his own interests. For these reasons, and pursuant to Federal Rule of Civil Procedure 21, Judge Underhill severs this action and drop all Plaintiffs other than Turoczi from the action. Turoczi will be the sole Plaintiff, who proceeds under this case caption. If the 78 other Plaintiffs wish to proceed, they must file new, individual complaints on behalf of themselves personally within the next 30 days, by Dec. 6, 2024. Judge Underhill holds that Turoczi has only been granted leave to proceed in forma pauperis on behalf of himself. If the other Plaintiffs wish to proceed in forma pauperis, they must file their own individual motions to proceed in forma pauperis when they file new complaints. A full-text copy of the Court's Order dated Nov. 6, 2024, is available at https://tinyurl.com/yc3aexbn from PacerMonitor.com. COSTCO WHOLESALE: Denial of Motion to Sever Claims Upheld --------------------------------------------------------- In the case captioned as KRESS STORES OF PUERTO RICO, INC.; J.M.J. APPLIANCES CORPORATION; VALIJA GITANA, INC.; HUMBERTO VIDAL, INC.; and ALMACENES KRESS DE CAYEY, INC., Plaintiffs, Appellants, v. WAL-MART PUERTO RICO, INC., and COSTCO WHOLESALE CORPORATION, Defendants, Appellees, No. 23-1060 (1st Cir.), the United States Court of Appeals for the First Circuit upheld the order of the United States District Court for the District of Puerto Rico denying Costco's motion to sever the claims against it. On the merits, this appeal presents unfair competition claims brought by local Puerto Rico merchants against major big-box retailers in Puerto Rico based on events during the COVID-19 pandemic. Plaintiffs-Appellants allege that Defendants-Appellees Costco Wholesale Corp. and Wal-Mart Puerto Rico, Inc., failed to comply with the Governor's executive orders limiting retail sales for 72 days to only essential goods, thus violating what plaintiffs say were defendants' duties of fair competition under Puerto Rico law. The executive orders required most brick-and-mortar retailers to close but exempted some "essential" retailers including supermarkets and pharmacies. Because Wal-Mart and Costco qualified as supermarkets, they remained open. They continued to offer nearly all their merchandise to the public, including what plaintiffs have alleged were "non-essential" goods. Plaintiffs' theory is that defendants took advantage of the closure orders to sell non-essential goods, which plaintiffs say violated the executive orders and breached a duty to avoid unfair competition, causing defendants to capture sales that otherwise would have gone to the local retailers. The executive orders remained in effect from March 15 to May 25, 2020. The local retailer plaintiffs seek damages for lost sales. The plaintiffs filed this case as a putative class action in Puerto Rico's Court of First Instance. Costco, the only non-local defendant, removed the case to federal district court under the Class Action Fairness Act, also known as "CAFA," 28 U.S.C. Sec. 1332(d)(2). Costco immediately moved to sever the claims against it, but the district court denied that motion. The plaintiffs moved for remand, arguing on several grounds that federal subject-matter jurisdiction was lacking under CAFA. The district court denied that motion as well. Defendants then moved to dismiss for failure to state a claim, and only plaintiffs' unfair competition claim survived. Plaintiffs then moved for class certification on that claim, which the district court denied. Finally, the district court granted summary judgment for defendants on the lone remaining claim, finding that the executive orders did not create an enforceable duty on the part of Costco and Wal-Mart. According to the First Circuit, the district court correctly granted summary judgment for Costco on plaintiffs' unfair competition claim under Article 1802. Summary judgment for Costco is affirmed for the reasons given by the district court. On appeal, Costco argues that denial of severance in this case was an abuse of discretion because plaintiffs cannot meet the "same transaction, occurrence, or series of transactions or occurrences" requirement of Rule 20(a). As Costco sees the case, plaintiffs have not alleged or offered evidence of any collective or concerted activity by the different defendants, who are after all competitors of one another. Plaintiffs have alleged only that the different defendants committed the same alleged legal wrongs in the same way, which has repeatedly been held insufficient to justify even permissive joinder. The First Circuit says, "We resolve the appeal on jurisdictional grounds. First, we join other circuits in holding that CAFA jurisdiction is not lost when a district court denies class certification. Second, we hold that CAFA's 'home state' exception in 28 U.S.C. Sec. 1332(d)(4)(B) does not apply here because a non-local defendant (Costco) was a 'primary' defendant. Third, however, we hold that CAFA's 'local controversy' exception in Sec. 1332(d)(4)(A)(i)(II)(bb) applies because, among other conditions, alleged conduct of a local defendant (Wal-Mart Puerto Rico) 'forms a significant basis for the claims asserted by the proposed plaintiff class.' We also conclude that the district court did not abuse its discretion by denying Costco's motion to sever, so the entire case belongs in the Puerto Rico courts where plaintiffs filed it." A copy of the First Circuit's Opinion is available at https://urlcurt.com/u?l=YjRdWG CUTLER VIEW: Commercial Property Violates ADA, Pardo Suit Alleges ----------------------------------------------------------------- NIGEL FRANK DE LA TORRE PARDO v. CUTLER VIEW INVESTMENTS LLC; BON BON CAKES 305, LLC d/b/a TACOPASTA; and ZAMIL FOOD TOWN USA INC d/b/a ZAMIL FOOD TOWN, Case No. 1:24-cv-24539 (S.D. Fla., Nov. 15, 2024) is a class action alleging that the Defendants have discriminated against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations of the Commercial Property and business located in it. The individual Plaintiff visits the Commercial Property and businesses located within the commercial property, to include visits on July 30, 2024, and encountered architectural barriers that are in violation of the ADA. The barriers to access at the Commercial Property, and businesses within, have each denied or diminished Plaintiff's ability to visit the Commercial Property and have endangered his safety in violation of the Americans with Disabilities Act, the lawsuit contends. The Plaintiff seeks injunctive relief, attorneys' fees, litigation expenses, and costs pursuant to ADA. The Plaintiff has lower paraplegia, inhibits him from walking or otherwise ambulating without the use of a wheelchair. He is limited in his major life activities by such, including walking, standing, grabbing, grasping and/or pinching. Cutler View owns, operates, and oversees the Commercial Property, its general parking lot and parking spots specific to the businesses therein, located in Miami Dade County, Florida.[BN] The Plaintiff is represented by: Beverly Virues, Esq. Armando Mejias, Esq. GARCIA-MENOCAL, P.L. 350 Sevilla Avenue, Suite 200 Coral Gables, Fl 33134 Telephone: (305) 553-3464 E-mail: bvirues@lawgmp.com amejias@lawgmp.com jacosta@lawgmp.com aquezada@lawgmp.com - and - Ramon J. Diego, Esq. THE LAW OFFICE OF RAMON J. DIEGO, P.A. 5001 SW 74th Court, Suite 103 Miami, FL, 33155 Telephone: (305) 350-3103 E-mail: rdiego@lawgmp.com ramon@rjdiegolaw.com DELOITTE & TOUCHE: IBEW Appointed as Class Representative --------------------------------------------------------- Judge Jacquelyn D. Austin of the United States District Court for the District of South Carolina granted IBEW's motion for class certification, appointment of class representative, and appointment of class counsel in the case captioned as International Brotherhood of Electrical Workers Local 98 Pension Fund on behalf of itself and all others similarly situated, Plaintiff, v. Deloitte & Touche LLP, Deloitte LLP, Defendants, Case No. 3:19-cv-03304-JDA (D.S.C.). IBEW is appointed as Class Representative. On November 22, 2019, Samuel R. Floyd, III, on behalf of himself and all others similarly situated, brought this securities class action against Deloitte, alleging a violation of Section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. On January 24, 2020, IBEW moved pursuant to Section 21D(a)(3)(B) of the Exchange Act, as amended by the Private Securities Litigation Reform Act of 1995, for an order appointing IBEW as lead plaintiff, on behalf of itself and all others similarly situated who purchased securities of SCANA Corporation between February 26, 2016, and December 20, 2017, both dates inclusive. IBEW also moved for approval of Cohen Milstein as lead counsel and Tinkler Law as liaison counsel. The Court granted IBEW's motion on February 18, 2020. On February 27, 2020, the SEC filed a 416-paragraph complaint against SCANA and two of its senior officers alleging that SCANA's statements about the status and ultimate failure of its $9 billion Nuclear Project violated securities laws and that reports and documents were available to any reasonably diligent auditor, which showed that SCANA's financial statements were not in accordance with GAAP, despite Deloitte's audit reports to the contrary. As the news about the fraud and its risks materialized, SCANA's stock price declined from a Class Period high of $76.12 per share on July 6, 2016, to $37.39 per share, causing substantial losses to investors. On May 19, 2020, IBEW filed a Consolidated Complaint on behalf of itself and all others similarly situated, asserting a claim for violation of Section 10(b) of the Exchange Act and SEC Rule 10b-5. IBEW alleges that, unbeknownst to the investing public, Deloitte's clean audit reports lacked any reasonable basis. If not for Deloitte's approval of SCANA's materially false and misleading financial statements, IBEW contends that it and the Class would not have purchased their SCANA shares at the prices they paid. For relief, IBEW seeks class certification, compensatory damages and interest, costs and expenses, and any further relief the Court deems just and proper. On January 15, 2024, IBEW filed the Class Certification Motion. Deloitte filed a response in opposition to the Class Certification Motion on February 5, 2024. On February 5, 2024, Deloitte filed the Motion to Exclude. The motions are ripe for consideration. Deloitte moves to exclude the damages-related opinion offered in Dr. Cain's expert report. Deloitte challenges Dr. Cain's damages-related opinion on two bases. First, Deloitte argues that IBEW asserts two damages theories -- a materialization of risk theory and a corrective disclosure theory -- but that Dr. Cain's report ignores the materialization of risk theory. Thus, Deloitte contends that IBEW "has failed both to offer a damages model consistent with its liability case and to demonstrate that its damages are attributable to that theory of liability as required by" the Supreme Court's decision in Comcast Corporation v. Behrend, 569 U.S. 27, 35 (2013). Second, Deloitte contends that Dr. Cain fails to offer or identify "any methodology by which damages attributable to SCANA, its officers, or others could be separated from damages attributable to Deloitte." Accordingly, Deloitte contends that Dr. Cain's opinion that damages are calculable on a class-wide basis fails to meet the requirements of Rule 702 of the Federal Rules of Evidence. Having reviewed the record and the applicable law, the Court concludes that Dr. Cain's damages-related opinion should not be excluded at the class-certification stage. Deloitte's motion to exclude damages-related expert opinion of Dr. Matthew D. Cain is denied. The Court first concludes that IBEW has satisfied all of Rule 23(a)'s requirements. Because Deloitte's opposition to the Class Certification Motion challenges only whether IBEW is a typical and adequate representative, the Court focuses its analysis on these requirements. The Court concludes that IBEW has satisfied the typicality requirement and, for the same reasons, has satisfied the first component of the adequacy inquiry –– that the interests of IBEW and the putative class members align. Additionally, Deloitte has not challenged IBEW's counsel's qualifications, experience, or ability to conduct the litigation, and the Court concludes that IBEW has satisfied the second component of the adequacy inquiry. The Court concludes that IBEW has also satisfied the Rule 23(b)(3) requirements. Because Deloitte's opposition to the Class Certification Motion challenges only whether questions of law or fact common to class members predominate over any questions affecting only individual members, the Court focuses its analysis on this requirement. IBEW argues that common questions of law and fact predominate because the proposed class is entitled to the fraud-on-the-market presumption under Basic Inc. v. Levinson, 485 U.S. 224 (1988); the proposed class is entitled to the reliance presumption under Affiliated Ute, 406 U.S. 128; and damages are measurable on a class-wide basis. In response, Deloitte contends that IBEW has failed to satisfy Rule 23(b)(3) because it has failed to present a damages methodology that matches its theories of liability and because IBEW cannot rely on the Basic presumption of reliance. Deloitte has failed to rebut the Basic presumption of reliance, and the Court concludes that IBEW has satisfied the Rule 23(b)(3)'s predominance requirement. Deloitte further argues that no class can be certified because the statute of repose has expired. The Court finds there is no dispute in this case that the original Complaint was filed within the statute of repose and has continued uninterrupted. Accordingly, class certification is not barred by the statute of repose. Deloitte does not challenge the appointment of Cohen Milstein as Lead Counsel or Tinkler Law Firm as Liaison Counsel. Accordingly, the Court appoints Cohen Milstein as Class Counsel and the Tinkler Law Firm as Liaison Counsel. A copy of the Court's Opinion and Order is available at https://urlcurt.com/u?l=IajuHo DIAMOND SOURCE NYC: Liz Sues Over Blind-Inaccessible Website ------------------------------------------------------------ Pedro Liz, on behalf of himself and all others similarly situated v. Corner Table Restaurants, LLC, Case No. 1:24-cv-08841 (E.D.N.Y., Nov. 20, 2024), is brought against the Defendant for their failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. The Defendant is denying blind and visually impaired persons throughout the United States with equal access to the goods and services Comer Table Restaurants provides to their non-disabled customers through https://thesmithrestaurant.com (hereinafter "Thesmithrestaurant.com" or fthe website"). Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered, and in conjunction with its physical locations, is a violation of Plaintiffs rights under the Americans with Disabilities Act (the "ADA"). Because Defendant's website, Thesmithrestaurant.com, is not equally accessible to blind and visually-impaired consumers, it violates the ADA. Plaintiff seeks a permanent injunction to cause a change in Corner Table Restaurants' policies, practices, and procedures to that Defendant's website will become and remain accessible to blind and visually-impaired consumers. This complaint also seeks compensatory damages to compensate Class members for having been subjected to unlawful discrimination, says the complaint. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using the computer. Thesmithrestaurant.com is an online platform that offers restaurant services.[BN] The Plaintiff is represented by: Gabriel Levy, Esq. GABRIEL A. LEVY, P.C. 1129 Northern Blvd., Suite 404 Manhasset, NY 11030 Phone: +1 347-941-4715 Email: glevy@glpcfirm.com DIVERSIFIED PRODUCTS: Delacruz Sues Over Blind-Inaccessible Website ------------------------------------------------------------------- Emanuel Delacruz, on behalf of himself and all other persons similarly situated v. DIVERSIFIED PRODUCTS, INC., Case No. 1:24-cv-08815 (S.D.N.Y., Nov. 19, 2024), is brought against the Defendant for its failure to design, construct, maintain, and operate its interactive website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"). Because Defendant's interactive website, https://saveyewear.com, including all portions thereof or accessed thereon, portions thereof or accessed thereon (collectively, the "Website" or "Defendant's Website"), is not equally accessible to blind and visually-impaired consumers, it violates the ADA. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. By failing to make its Website available in a manner compatible with computer screen reader programs, Defendant deprives blind and visually-impaired individuals the benefits of its online goods, content, and services--all benefits it affords nondisabled individuals --thereby increasing the sense of isolation and stigma among those persons that Title III was meant to redress, says the complaint. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. DIVERSIFIED PRODUCTS, INC., operates the SAV Eyewear online retail store, as well as the SAV Eyewear interactive Website and advertises, markets, and operates in the State of New York and throughout the United States.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Dana L. Gottlieb, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES PLLC 150 East 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: Michael@Gottlieb.legal Danalgottlieb@aol.com Jeffrey@gottlieb.legal EMPIRE AUTO: Court Dismisses Class Action Claims in Misner Suit --------------------------------------------------------------- In the lawsuit styled BRADY MISNER, Plaintiff v. EMPIRE AUTO PROTECT, LLC, Defendant, Case No. 2:24-cv-01282-EAS-CMV (S.D. Ohio), Judge Edmund A. Sargus, Jr., of the U.S. District Court for the Southern District of Ohio, Eastern Division, dismisses without prejudice the Plaintiff's class action allegations. The matter is before the Court on Plaintiff Brady Misner's Motion for Default Judgment. The Motion is supported by an Affidavit submitted by Mr. Misner. The time for filing a response to the Motion has passed and Defendant Empire Auto Protect, LLC, has not responded. For the reasons set forth in this Opinion and Order, the Court grants Mr. Misner's Motion. In July 2023, Mr. Misner registered his cellphone number with the National Do Not Call registry. He attached as an exhibit to his Affidavit a copy of his registration on the National Do Not Call registry. Despite registering on the Do Not Call list, starting in January 2024 and continuing through May 2024, telephone numbers registered to Empire Auto sent Mr. Misner text messages to his personal cellphone number. The text messages advertised Empire Auto's products and encouraged him to purchase Empire Auto's personal auto warranties. Mr. Misner alleges that he did not have an existing business relationship with Empire Auto, or consent to receive communications. He attaches as an exhibit to his Affidavit seven text messages sent by numbers registered to Empire Auto. On March 8, 2024, Mr. Misner brought this putative class action against Empire Auto. He alleges that Empire Auto violated the Telephone Consumer Protection Act ("TCPA") by initiating, or causing to be initiated, telephone solicitations to telephone subscribers (such as Mr. Misner) who registered their respective telephone numbers on the National Do Not Call registry. When Empire Auto failed to answer the Complaint or otherwise defend in this action, Mr. Misner applied for and received an entry of default against Empire Auto. He, then, moved for default judgment on his individual claims. He seeks a total damages award of $10,500, which represents statutory damages in the amount of $1,500 for each of the seven text messages sent to him. He also requests post-judgment interest on the damages award until judgment is satisfied. Empire Auto has not responded and the time to do so has passed. After Mr. Misner moved for default judgment, the Court ordered him to advise the Court how he intended to proceed on his class action allegations. He, then, filed notice that he dismisses his class action allegations without prejudice for purposes of the default judgment. Based on Mr. Misner's notice, the Court severs and dismisses without prejudice his class action allegations from his individual allegations against Empire Auto. Mr. Misner seeks damages of $10,500 for willful violations of the TCPA. Even though the Court accepts the factual allegations on liability as true, the Court still must determine that the facts in the Complaint state a claim for relief against Empire Auto. On a motion for default judgment, Mr. Misner's factual allegations are taken as true to establish liability, Judge Sargus notes. Judge Sargus finds his factual allegations as pleaded satisfy the second and third factors necessary to state a claim under 47 U.S.C. Section 227(c). The Court also finds that cellular telephone users can be considered "residential telephone subscribers." Accordingly, Judge Sargus holds that Mr. Misner cellular telephone usage entitles him to the protections of the TCPA as a "residential telephone subscriber" under Section 227(c). By failing to answer, appear, or otherwise defend against this action, Empire Auto is deemed to have admitted these allegations. The Court, thus, finds that Mr. Misner is entitled to default judgment on his individual claims against Empire Auto. He moves for default judgment only on his individual claims and his class action allegations have been dismissed, thus, the Court will not enter a judgment against Empire Auto on behalf of the putative class members. Mr. Misner's unchallenged affidavit states that he received seven text messages sent from Empire Auto even though he was registered on the National Do Not Call registry. His uncontested allegations show that at a minimum, Mr. Misner is entitled to $3,500--or $500 for each of the seven text messages. But he also asks the Court to triple his damages to a total of $10,500--or $1,500 per text message. Judge Sargus opines that without trebling Mr. Misner's statutory damages, his recovery would be minimal and would not incentivize similarly aggrieved parties to seek redress for TCPA violations. The Court will, therefore, treble the damages awarded under Section 227(c)(5)(B) for the seven unsolicited text messages. The Court is satisfied that it can determine the appropriate damages without an evidentiary hearing. Based on this evidence, Judge Sargus holds Mr. Misner is entitled to a damages award of $10,500. On top of damages, Mr. Misner seeks post-judgment interest. Accordingly, Empire Auto is ordered to pay post-judgment interest at the applicable statutory rate from the date of this Order until the judgment is satisfied. Accordingly, the Court severs and dismisses without prejudice Plaintiff Brady Misner's class action allegations against Defendant Empire Auto Protect, LLC, under Rule 21 of the Federal Rules of Civil Procedure. Mr. Misner's Motion for Default Judgment on his individual claims is granted, and the Clerk is directed to enter judgment for the Plaintiff and against the Defendant on the Plaintiff's claim for violations of the Telephone Consumer Protection Act ("TCPA"). Mr. Misner is awarded $10,500 in damages, plus post-judgment interest at the applicable statutory rate. The Clerk is directed to close this case. A full-text copy of the Court's Opinion and Order dated Nov. 6, 2024, is available at https://tinyurl.com/2jvze4wr from PacerMonitor.com. ERIGERE RAPIDUS: Court Grants Plaintiff's Motion to Compel ---------------------------------------------------------- Magistrate Judge Sharon A. King of the United States District Court for the District of New Jersey granted the plaintiff's amended motion to compel in the case captioned as BARRY W. DAVIS, JR., individually and on behalf of others similarly situated, Plaintiff, v. ERIGERE RAPIDUS SOLUTIONS ERS, INC. et al., Defendants, Civil No. 23-23279 (KMW/SAK) (D.N.J.), Plaintiff's first motion to compel is denied as moot. Plaintiff filed this collective and class action against Defendants Erigere Rapidus Solutions ERS, Inc. and Robert Cormier alleging, in part, that Defendants refused pay Plaintiff overtime and otherwise intentionally withheld owed wages. Plaintiff's claims are premised upon violations of the Fair Labor Standards Act and related state laws. On April 25, 2024, Plaintiff filed a motion for default judgment seeking an award of $106,111.85, inclusive of damages, fees, and costs. Specifically, Plaintiff sought the following: $25,411.38 in unpaid overtime; $50,822.75 in liquidated damages on unpaid overtime; $2,337.50 in unpaid wages; $4,675.00 in liquidated damages on unpaid wages; $22,260.00 in attorney fees; and $605.22 in costs. On March 30, 2024, the Honorable Karen M. Williams, U.S.D.J., granted Plaintiff's motion and entered judgment in his favor against Defendants jointly in the amount of $106,111.85. To date, Defendants have not made an appearance in the case in any capacity. Plaintiff contends that Defendants have failed to provide answers or produce documents in response to his discovery requests in violation of Federal Rules of Civil Procedure 33 and 34. As such, Plaintiff now moves for an order compelling Defendants to fully respond. Judge King says, "Here, the Court will grant Plaintiff's amended motion and order Defendants to provide responses to his Interrogatories and Requests for Production of Documents in Aid of Execution of Judgment. Plaintiff personally served each Defendant with these requests and his interrogatories seek permissible postjudgment discovery under state and federal law. Likewise, Plaintiff's document requests are narrowly tailored to materials that are the subject matter of his interrogatories. In light of the permissive nature of postjudgment discovery, combined with the absence of a specific formula for obtaining it under the federal rules, the Court finds that Plaintiff has demonstrated good cause to compel Defendants to provide the requested discovery." The Court also notes Plaintiff's motions are unopposed. The Court further notes that Defendants have otherwise failed to appear in the case or respond to Plaintiff's Amended Complaint in any form. Therefore, the Court will grant Plaintiff's amended motion to compel and enter an order compelling each Defendant to promptly provide responses to Plaintiff's Interrogatories and Requests for Production of Documents in Aid of Execution of Judgment." Defendants ERS and Cormier shall provide all answers and produce all responsive documents to Plaintiff's Interrogatories and Requests for Production of Documents in Aid of Execution of Judgment no later than December 3, 2024. Defendants ERS and Cormier may be subject to sanctions if Defendants fail to timely respond to Plaintiff's Interrogatories and Requests for Production of Documents in Aid of Execution of Judgment or otherwise refuse to comply with this Order. A copy of the Court's Opinion and Order is available at https://urlcurt.com/u?l=pflfUL FBA OPERATING: Website Inaccessible to the Blind, Davis Suit Claims ------------------------------------------------------------------- NICOLE DAVIS, on behalf of herself and all others similarly situated v. FBA Operating Co., Case No. 1:24-cv-11775 (N.D. Ill., Nov. 15, 2024) sues the Defendant for their failure to design, construct, maintain, and operate its website, https://bluatlas.com, to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons pursuant to the Americans with Disabilities Act. The complaint says that the Defendant is denying blind and visually impaired persons throughout the United States with equal access to the goods and services FBA Operating provides to their non-disabled customers through the wesbite. On July 30, 2024, the Plaintiff came across the Defendant's website while searching online for a gift for her boyfriend and initially looked for men's cologne. She decided to purchase a Natural Shampoo for All Hair Types and a Hydrating Face Moisturizer. However, she encountered several accessibility issues, including automatic pop-ups and an inaccessible navigation menu. As a result of these issues, she was unable to efficiently navigate the website and could not complete her purchase, the suit says. The Plaintiff seeks a permanent injunction to cause a change in FBA Operating's policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired consumers. This complaint also seeks compensatory damages to compensate Class members for having been subjected to unlawful discrimination. FBA Operating provides face masks, exfoliating scrubs, serums, soaps, body oils, conditioners, deodorants, and more.[BN] The Plaintiff is represented by: Paul Camarena, Esq. NORTH & SEDGWICK LAW 1016 W. Jackson, No. 32 Chicago, IL 60607 Telephone: (630) 534-2527 E-mail: northandsedgwicklaw@gmail.com FLOWERS FOODS: Loses Bid to Compel Arbitration in Brock Suit ------------------------------------------------------------ In the case captioned as ANGELO BROCK, individually and on behalf of all others similarly situated, Plaintiff - Appellee, v. FLOWERS FOODS, INC., a Georgia limited liability company; FLOWERS BAKERIES, LLC, a Georgia limited liability company; FLOWERS BAKING CO. OF DENVER, LLC, a Colorado limited liability company, Defendants - Appellants, No. 23-1182 (10th Cir.), Judge Gregory A. Phillips of the United States Court of Appeals for the Tenth Circuit affirmed the interlocutory order of the United States District Court for the District of Colorado denying the defendant-appellants' motion to compel arbitration of Brock's claims. Flowers Foods, Inc., a packaged-bakery-foods company, produces "fresh breads, buns, rolls, and snack cakes" that are sold in supermarkets, drug stores, and convenience stores throughout the United States. Flowers Foods, Inc. owns various subsidiaries, including Flowers Bakeries, LLC and Flowers Denver. This litigation arises from a putative class-action complaint alleging wage and hour violations. In 2016, Angelo Brock began working as an independent distributor for Flowers Baking Co. of Denver, LLC. He delivered baked goods produced out-of-state to various retail stores in Colorado. But the working relationship soured. Brock sued Flowers for violations of the Fair Labor Standards Act and Colorado labor law on behalf of himself and other similarly situated workers. He alleges that Flowers misclassifies its delivery-driver distributors as independent contractors to systematically underpay its employees. Flowers moved to compel arbitration under the FAA, 9 U.S.C. Sec. 4, and to either dismiss or stay the case pending the requested arbitration. Flowers argued that the parties' Distributor Agreement and Arbitration Agreement required Brock to arbitrate his claims individually. The district court denied that motion. In 2016, Brock signed a Distributor Agreement to become an independent distributor for Flowers. The Distributor Agreement governs the business relationship between Flowers Denver and Brock, Inc. Relevant to this appeal, the Distributor Agreement contains a "Mandatory and Binding Arbitration" provision that incorporates an "Arbitration Agreement." The Arbitration Agreement requires that "any claim, dispute, and/or controversy" be arbitrated "exclusively" under the Federal Arbitration Act , "except as otherwise agreed to by the parties and/or specified herein." Covered claims include claims challenging the independent distributor's status as an independent contractor and claims for unpaid compensation. The Arbitration Agreement also states that it "shall be governed by the FAA and Colorado law to the extent Colorado law is not inconsistent with the FAA." Brock signed a "Personal Guaranty," under which he personally guaranteed performance and compliance with the terms of the Distributor Agreement. The Personal Guaranty includes an acknowledgment that Brock is "subject to the Arbitration Agreement." This appeal focuses on whether the Arbitration Agreement requires Brock to arbitrate his claims individually. Flowers challenges the district court's order denying arbitration under the FAA and Colorado law. First, Flowers argues that the district court erred by concluding that Sec. 1 of the FAA exempts Brock from arbitration. Flowers asserts that Brock's class of workers is not directly engaged in interstate commerce and that the parties' Distributor Agreement does not qualify as a contract of employment. Second, Flowers argues that the district court erred by concluding that the plain language of the Arbitration Agreement foreclosed arbitration under Colorado law. Judge Phillips says, "On the interstate-commerce question, we agree with the district court: Brock's class of workers is engaged in interstate commerce. Because we either decline to review or lack jurisdiction over all other issues, we affirm." A copy of the Tenth Circuit's Opinion is available at https://urlcurt.com/u?l=FSpy6r FLYWHEEL ENERGY: Oliger Seeks to Withdraw Class Certification Bid ----------------------------------------------------------------- In the class action lawsuit captioned as DARRELL OLIGER AND CAROL OLIGER, CO-TRUSTEES OF THE DARRELL AND CAROL OLIGER REVOCABLE TRUST DATED JUNE 19, 2007, PULOMA PROPERTIES, LLC, and LGTD INVESTMENTS, LLC, Individually and on behalf of all others similarly situated, v. FLYWHEEL ENERGY PRODUCTION, LLC, Case No. 4:20-cv-01146-LPR (E.D. Ark.), the Plaintiffs ask the Court to enter an order withdrawing their renewed motion for class certification. Flywheel Energy is a private exploration and production company formed to acquire and operate onshore U.S. oil and gas assets. A copy of the Plaintiffs' motion dated Nov. 18, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=PGjeTi at no extra charge.[CC] The Plaintiffs are represented by: M. Edward Morgan, Esq. Nathan S. Morgan, Esq. MORGAN LAW FIRM, P.A. 244 Highway 65 North, Suite 5 Clinton, AR 72031-7085 Telephone: (501) 745-4044 Facsimile: (501) 745-5358 E-mail: eddie@medwardmorgan.com nathan@morganlawfirmpa.com - and - Thomas P. Thrash, Esq. William T. Crowder, Esq. THRASH LAW FIRM, P.A. 1101 Garland Street Little Rock, AR 72201-1214 Telephone: (501) 374-1058 Facsimile: (501) 374-2222 E-mail: tomthrash@thrashlawfirmpa.com willcrowder@thrashlawfirmpa.com FRANKLIN WIRELESS: More Info Needed on $166K Fee Motion in Ali Suit ------------------------------------------------------------------- In the lawsuit titled MOHAMMED USMAN ALI, individually and on behalf of all others similarly situated, Plaintiff v. FRANKLIN WIRELESS CORP., et al., Defendants, Case No. 3:21-cv-00687-AJB-MSB (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California wants more information regarding the Plaintiff's motion for attorneys' fees in the amount of $166,383.87. Before the Court is a motion filed by Plaintiff Gergely Csaba ("Plaintiff"), seeking an award of 33.33% of the common settlement fund amount for attorneys' fees, $166,383.87 to reimburse counsel for litigation expenses, and $7,500 as compensation for the time he spent representing the Class. The Plaintiff supports this motion with declarations from himself and attorney Austin P. Van of Pomerantz LLP. The Defendants filed an opposition arguing the Plaintiff's requests are "unduly excessive." Having reviewed the relevant filings, the Court determines additional information is required regarding the reimbursement of litigation expenses and the Plaintiff's compensation. Judge Battaglia says the Plaintiff's motion and the declaration of counsel provide only minimal additional insight into the requested expenses, explaining that the damages expert was needed to analyze potential damages so that Class Counsel could properly evaluate the value of the Class's claims. The Plaintiff has failed to provide the Court with sufficient information and documentation to allow for meaningful review of the expenses, particularly the expert, investigator, discovery vendor, and research fees. Accordingly, the Court orders the Plaintiff to file a supplement, including any necessary documentation and supporting declarations, to address the reasonableness of each expense requested. This should include the billings of the expert witness(es) and any reports generated. The Plaintiff's motion summarizes how he took an active role in the litigation, listing activities that warrant reimbursement for the time and effort he expended on the Class's behalf. In his declaration, Judge Battaglia notes, the Plaintiff similarly lists out the actions he took but then only makes conclusory statements that the reimbursement request is fair and reasonable. The Court agrees that where such duties performed for the class resulted in cost or expense to the Plaintiff, the PSLRA authorizes reasonable reimbursement. However, Judge Battaglia opines, the Plaintiff provides neither an estimate of the hours expended nor a calculation of the hourly rate his time is worth. The Plaintiff has not provided sufficient facts for the Court to determine the reasonableness of the $7,500 requested reimbursement, such as the hours expended in performance of his duties as class representative and expenses or costs incurred directly therefrom, including any lost wages. Accordingly, the Court orders the Plaintiff file a supplemental declaration addressing the identified deficiencies. For these reasons, the Court orders the Plaintiff file a supplement consistent with this Order on Nov. 14, 2024. In light of the need for this supplement, the Court resets the hearing on the Plaintiff's motion for final approval, and the Plaintiff's motion for attorneys' fees, litigation expenses, and an award for the Plaintiff to 3:00 p.m. on Nov. 25, 2024, in Courtroom 4A before Judge Battaglia. A full-text copy of the Court's Order dated Nov. 6, 2024, is available at https://tinyurl.com/mr4yws48 from PacerMonitor.com. GIVAUDAN FLAVORS: Seeks Class Action Status on Plant Explosions --------------------------------------------------------------- Marcus Green, writing for WDRB.com, reports that a Louisville man filed a lawsuit against Givaudan Flavors Corporation on Friday, November 22, claiming the company was negligent in the Nov. 12 explosion that killed two workers and injured 11 others. The suit, filed by attorneys for Charles Fowler in Jefferson Circuit Court, appears to be the first legal action in response to last week's blast. It asks to be certified as a class action, which would allow other plaintiffs to join. Fowler claims in the suit that he was driving for DoorDash last Tuesday, November 19, near the plant at 1901 Payne Street when the explosion happened, producing shockwaves that he "felt in his car." He then experienced symptoms of post-traumatic stress disorder that he first developed while serving in Iraq, according to the complaint. The suit says Fowler remained inside his home for several hours after the explosion and was unable to work and will also need care for his PTSD, among other things. The Bureau of Alcohol, Tobacco, Firearms and Explosives' Louisville field office released a preliminary cause of the explosion this week, saying that there is an "indication that the vessel did not vent properly, and that caused an overheating and explosion." An employee told WDRB News last week that she warned co-workers about a cooker days before the blast, saying it had been overheating. A Givaudan leader said earlier this week that weren't any formal complaints. "We have logs of all of the safety reports, and I would tell you that is not in my log," Elaine Gravatte, the former Givaudan president, told reporters. Fowler's attorneys argue in the lawsuit that Givaudan failed to ensure that the cooking vessel that exploded was properly ventilated and knew or should have known that the equipment could explode. In making that claim, the lawyers cited the reported warnings about the vessel. The suit claims Givaudan "had actual knowledge of the imminent risks of Cooker 6 overheating and being improperly ventilated, and the risks of the Explosion occurring, causing devastating injury and property damage. Yet Givaudan failed to act." And it draws a connection between this month's explosion and one in 2003 that killed one worker, saying Givaudan knew of the risks from chemical cooking vessels long before what happened Nov. 12. Federal investigators concluded the 2003 explosion -- at the plant then operated by D.D. Williamson & Co. -- was the likely result of extreme pressure caused when a feed tank with caramel colored liquid overheated. Givaudan, which acquired D.D. Williamson in 2021, did not respond to a request for comment. Givaudan Sense Colour President Ann Leonard told reporters in a virtual press conference on Nov. 15 that it was not aware of any equipment -- including that specific vessel -- not working properly before the explosion. The suit filed November 22 makes three main claims. It argues that Givaudan was negligent in failing to follow industry safety standards and guidelines, among a litany of other accusations. It claims the company caused a "private nuisance" due to the explosion's impact on surrounding properties. It says Givaudan committed "unreasonable and unlawful trespass" as a result of nearby property damage. Fowler's attorneys are from Nashville-based Stranch, Jennings & Garvey PLLC and Chicago-based Milberg Coleman Bryson Phillips. Besides seeking class action approval, the suit seeks unspecified monetary and other damages. The two Givaudan employees who died have been identified as Austin Jaggers, 29, and Keven Dawson Jr., 49. [GN] GSK SOLUTIONS: Wilson Class Suit Seeks Unpaid OT Wages Under FLSA ----------------------------------------------------------------- KELSEY WILSON, individually and on behalf of all others similarly situated v. GSK SOLUTIONS INC., Case No. 1:24-cv-03182-GPG (D. Colo., Nov. 15, 2024) seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Ms. Wilson and other hourly workers for GSK regularly worked in excess of 40 hours in a week. However, GSK did not pay Ms. Wilson and these other workers the proper overtime rate for all of these hours. Instead, GSK paid Ms. Wilson and workers like her at the same hourly rate for most, if not all, hours worked, the lawsuit claims. Even when GSK did pay Ms. Wilson and the other workers a premium for working certain hours, the premium was not calculated at 1.5x Ms. Wilson and the other workers' "regular rate," the lawsuit adds. For example, for the week from Oct. 6, 2024, to Oct. 12, 2024, Ms. Wilson worked a total of 42.9 hours for GSK. GSK paid Ms. Wilson at the hourly rate of $57.00 per hour, for the first 40 hours she worked during that period. For the 2.9 overtime hours Ms. Wilson worked during that period, Wilson was paid only $80.00 per hour, which is less than 1.5x her regular rate of pay. The illegal pay practices GSK imposed on Ms. Wilson were likewise imposed on the FLSA Collective members, the Plaintiff avers. Plaintiff Wilson has worked for GSK since November 2023. GSK provides IT and healthcare services.[BN] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC 2 Greenway, Ste. 250 Houston, TX 77046 Telephone: (713) 999-5200 E-mail: matt@parmet.law HALEON US: Faces Campos Suit Over Emergen-C Gummies' Deceptive Ads ------------------------------------------------------------------ CARLOS CAMPOS, as an individual, on behalf of himself, the general public, and those similarly situated v. HALEON US INC.; and ALACER CORP., Case No. 4:24-cv-08057 (N.D. Cal., Nov. 16, 2024) seeks redress for Defendants' deceptive, unlawful, and unfair labeling and marketing of Emergen-C brand Vitamin C gummies. Although the Defendants prominently labels its products as providing a specific amount of Vitamin C per serving, the products, in truth, contain less Vitamin C than claimed during their shelf life. Independent testing demonstrates that rather than having 750 grams of Vitamin C per serving, for example, Defendants' Vitamin C gummy product in the Strawberry, Lemon & Blueberry flavor product actually has only 409 milligrams (i.e., an overstatement by approximately 183%), the Plaintiff contends. Indeed, Vitamin C, also known as ascorbic acid, is a highly unstable molecule that readily degrades when exposed to light, oxygen, and heat. Because Defendants package the Products in transparent bottles that expose the gummies to light during distribution, on retail shelves, and after purchase, the ascorbic acid in the Products degrades precipitously, reducing the total amount of Vitamin C found in the Products over time to an amount far less than the amount claimed even before the Products’ expiration dates, the Plaintiff adds. Accordingly, the Vitamin C claims on the front of the package, such as "750mg Vitamin C" are unlawful and misbranded in violation of parallel state and federal laws because the products do not comply with regulatory requirements for making a Vitamin C claim. In addition to being unlawful under 21 CFR sections 101.9 and 101.13, the Defendants' prominent protein claim on the front of the package also is likely to mislead reasonable consumers. Consumers reasonably expect that Defendants' products will actually provide the full amount of Vitamin C per serving claimed on the front of the package. But Defendants' products do not do so. Indeed, the products provide nutritionally as little as 50% of their total Vitamin C quantity. The Defendants' alleged unlawful and misleading Vitamin C claims caused the Plaintiff and members of the class to pay a price premium for the Emergen-C Vitamin C gummy products. Haleon manufacture, distribute, market, advertise, and sell various nutritional supplement products in the United States, including vitamin gummy products under the brand name "Emergen-C."[BN] The Plaintiff is represented by: Seth A. Safier, Esq. Marie A. Mccrary, Esq. Kali Backer, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 E-mail: seth@gutridesafier.com marie@gutridesafier.com kali@gutridesafier.com HANON SYSTEMS: Fails to Pay Operators' OT Wages Under FLSA & OPPA ----------------------------------------------------------------- KOREN WAGNER, on behalf of herself and all others similarly situated v. HANON SYSTEMS USA, LLC, Case No. 2:24-cv-13047-JEL-KGA (E.D. Mich., Nov. 18, 2024) sues the Defendant for willfully failing to pay the Named Plaintiff and other similarly situated employees overtime wages as well as failing to comply with all other requirements of the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. During the last three years preceding the filing of this Complaint, the Named Plaintiff, the FLSA Collective, and the State Law Class received or earned their Base Hourly Wage in addition to the Additional Remuneration in one or more workweeks when they worked more than 40 hours in a single workweek. However, the Defendant failed to fully include one or more forms of Additional Remuneration in calculating their regular rates of pay for overtime purposes, the lawsuit contends. The Named Plaintiff, the FLSA Collective, and State Law Class seek to exercise their rights to unpaid overtime wages and additional statutory liquidated damages in this matter, other penalties, in addition to prejudgment and post-judgment interest, costs and attorneys' fees incurred in prosecuting this action, the employer's share of relevant taxes, and such further relief as the Court deems equitable and just as a result of Defendant's companywide unlawful pay policies/practices. The Named Plaintiff was employed by the Defendant as press operator since October 2022 to the present. Hanon is a full-line supplier of automotive thermal management solutions for electrified and conventional vehicles.[BN] The Plaintiff is represented by: Daniel I. Bryant, Esq. Esther E. Bryant, Esq. BRYANT LEGAL, LLC 4400 N. High St., Suite 310 Columbus, OH 43214 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com Ebryant@bryantlegalllc.com - and - Joseph F. Scott, Esq. Ryan A. Winters, Esq. Kevin M. McDermott II, Esq. SCOTT & WINTERS LAW FIRM, LLC Telephone: (216) 912-2221 11925 Pearl Rd., Suite 308 Strongsville, OH 44136 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com kmcdermott@ohiowagelawyers.com HASKEL INTERNATIONAL: Sanford Lawsuit Remanded to State Court ------------------------------------------------------------- Judge Fernando M. Olguin of the United States District Court for the Central District of California remanded the case captioned as ANTHONY SANFORD, individually, and on behalf of all others similarly situated, Plaintiff, v. HASKEL INTERNATIONAL, LLC, Defendant, Case No. CV 24-9073 FMO (AJRx) (C.D. Calif.), to the Superior Court of the State of California, County of Los Angeles, for lack of subject matter jurisdiction pursuant to 28 U.S.C. Sec. 1447(c). On August 20, 2024, Anthony Sanford filed a Complaint in the Los Angeles County Superior Court against Haskel International, LLC asserting state law claims relating to his employment. On October 21, 2024, defendant removed that action on diversity jurisdiction grounds pursuant to 28 U.S.C. Secs. 1332(a), 1441, and 1446. The Court's review of the NOR and the attached Complaint makes clear that the court does not have subject matter jurisdiction over the instant matter. In other words, plaintiff could not have originally brought this action in federal court, as plaintiff does not competently allege facts supplying diversity jurisdiction. Therefore, removal was improper, the Court finds. Defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. Judge Olguin says, "Here, there is no basis for diversity jurisdiction because the amount in controversy does not appear to exceed the diversity jurisdiction threshold of $75,000." As an initial matter, the amount of damages plaintiff seeks cannot be determined from the Complaint, as the Complaint does not set forth a specific amount, the Court notes. The Court is not persuaded, under the circumstances in this case, that defendant has met its burden of showing by a preponderance of the evidence that the amount in controversy meets the jurisdictional threshold. A copy of the Court's Order is available at https://urlcurt.com/u?l=HpwhfO HEALTH MATCHING: Faces Class Action Over Breach of Contract ----------------------------------------------------------- Kyle McClenagan, writing for Houston Public Media, reports that a federal class-action lawsuit was filed Friday, November 22, 2024, against Houston-based company Health Matching Account Services (HMA), claiming it took tens of millions of dollars from customers after allegedly breaching its own contract. According to the lawsuit, filed in the Southern District of Texas, HMA functions as a pseudo-health savings account without any of the traditional tax benefits. Typically, a health savings account allows users to contribute pre-tax money to be used on health-related purchases not covered by health insurance. The lawsuit claims that HMA charged users a monthly fee -- allegedly higher than the average health savings account -- for account management and a monthly post-tax contribution in exchange for HMA matching the consumers’ contributions. However, HMA is accused of operating under a business model that is allegedly only profitable when consumers fail to pay their monthly fees. According to the lawsuit, HMA takes ownership of the full account amount if a user fails to pay the required fee and monthly contributions. The lawsuit, which seeks $50 million in damages, also claims HMA changed the terms of its contract with customers in order to increase profits. "Beginning in the fall of 2022, HMA began making a series of radical and unforeseeable changes to their business model, ultimately changing from an easy-to-use debit card service to requiring customers to jump through hoops and personally submit claims for approval, and later requiring unsuspecting medical providers to negotiate payments with HMA just like an insurance company," the court filing claims. The company and its owner, Elliott Gorog, declined to comment. The Better Business Bureau has given HMA an F rating and received more than 100 complaints against the company in the last three years. On Jan. 31, the bureau’s board of directors revoked HMA's accreditation due to failure to adhere to the bureau’s requirements. According to the bureau, the company has failed to: -- "Address disputes forwarded by BBB quickly and in good faith" -- "Cooperate with BBB in efforts to eliminate the underlying cause of patterns of customer complaints" -- "Approach all business dealings, marketplace transactions and commitments with integrity, good faith and intent to do what is reasonably expected" The class-action lawsuit was filed by Alexander Loftus of Loftus & Eisenberg, LTD in Illinois and James Crewse of the Dallas-based Crewse Law Firm, PLLC. Loftus told Houston Public Media he became aware of HMA after a former client informed him about its alleged business practices and directed him to a Facebook group of unhappy HMA customers. "About two months ago, I was contacted by an existing client who was a victim of a Ponzi scheme case that I had," Loftus said. "Pretty immediately it was clear that this was a uniform problem that she was suffering from . . . . I found the Facebook group on this and then I found the other myriad of complaints online." According to the lawsuit, HMA would allegedly make partial payments for claims made by its customers but would still withdraw the full amount from their accounts. The lawsuit alleges that after not receiving the full payments, healthcare providers would seek the full payment from the customer directly despite the money already having been taken from their account by HMA. Since looking into the accusations against HMA, Loftus said he has repeatedly been contacted by former HMA clients. "I'm talking to these people and they're all over the South . . . . So, all these southern people that have been gravely financially injured have been calling me like crazy," he said. "I have never seen this and I was looking for something like it because (health savings accounts), everybody has got that, but I've never seen anything like this." HMA's services are sold by brokers, according to the lawsuit, which cites an alleged 2022 Zoom call with brokers in which the company's owner, Gorog, said HMA had 52,000 customers actively using the services and paying monthly fees. Loftus said the HMA case is unique. "It's weird because it's not really insurance, it's not really an investment, it's somewhere between the two," he said. "A lot of this is very similar to the work we do with Ponzi schemes and that's what's appealing to it because I can apply my knowledge from that to this. “It's hard for law enforcement because the [Securities and Exchange Commission] isn't interested because it's not an investment, it's not a security,” Loftus added. “Insurance people aren't interested because it's not insurance, so it kind of falls through the cracks of regulation." [GN] HERTZ GLOBAL: Continues to Defend Doller Securities Class Suit -------------------------------------------------------------- Hertz Global Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2024 filed with the Securities and Exchange Commission on November 12, 2024, that the Company continues to defend itself from Doller securities class suit in the United States District Court for the Middle District of Florida, captioned Edward M. Doller v. Hertz Global Holdings, Inc. et al. (No. 2:24-CV-00513) on May 31, 2024. On September 30, an amended complaint was filed, following the Florida Middle District Court's appointment of a lead plaintiff and a lead counsel. The amended complaint asserts claims against Hertz Global, former Company CEO, Stephen M. Scherr, and former Company Chief Financial Officer, Alexandra Brooks, alleging violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, including concerning statements regarding demand for EVs. The Plaintiffs assert claims on behalf of a putative class, consisting of all persons and entities that purchased or otherwise acquired Hertz Global's securities between January 6, 2023 and April 24, 2024. The amended complaint seeks unspecified damages, together with interest, attorneys’ fees and other costs. Hertz Global filed a motion to dismiss the complaint on October 30. Hertz Global Holdings, Inc., known as Hertz, is an American car rental company based in Estero, Florida. The company operates its namesake Hertz brand, along with the brands Dollar Rent A Car, Firefly Car Rental and Thrifty Car Rental. HUMACYTE INC: Bids for Lead Plaintiff Deadline Set January 17 ------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming January 17, 2025 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Humacyte, Inc. ("Humacyte" or the "Company") (NASDAQ: HUMA) securities between May 10, 2024 and October 17, 2024, inclusive (the "Class Period"). If you suffered a loss on your Humacyte investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/Humacyte-Inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On August 9, 2024, after the market closed, Humacyte issued a press release announcing that the Food and Drug Administration ("FDA") "will require additional time to complete its review of its Biologic License Application (BLA) for the acellular tissue engineered vessel (ATEV) in the vascular trauma indication." The press release disclosed in part, that, "[d]uring the course of the BLA review, the FDA has conducted inspections of our manufacturing facilities and clinical sites and has actively engaged with us in multiple discussions regarding our BLA filing[.]" On this news, the Company's stock price declined $1.29, or 16.4%, to close at $6.62 per share on August 12, 2024, on unusually heavy volume. On October 17, 2024, during market hours, the FDA released a Form 483 concerning Humacyte's Durham, North Carolina facility, which revealed a number of violations, including "no microbial quality assurance," "no microbial testing," and inadequate "quality oversight." On this news, the Company's stock price declined $0.95, or 16.35%, to close at $4.86 per share on October 17, 2024, on unusually heavy volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company's Durham, North Carolina facility failed to comply with good manufacturing practices, including quality assurance and microbial testing; (2) that the FDA's review of the BLA would be delayed while Humacyte remediated these deficiencies; and (3) that, as a result, there was a substantial risk to FDA approval of ATEV for vascular trauma; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Humacyte securities during the Class Period, you may move the Court no later than January 17, 2025 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Glancy Prongay & Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 shareholders@glancylaw.com www.glancylaw.com [GN] INDEPENDENCE BLUE: Class Settlement Gets Final Court Approval ------------------------------------------------------------- Judge Kai N. Scott of the United States District Court for the Eastern District of Pennsylvania granted final approval of the settlement agreement submitted by the parties in the case captioned as JODDA MOORE, and TERRELL AIKEN, individually and on behalf of all similarly situated persons, Plaintiffs, V. INDEPENDENCE BLUE CROSS, LLC d/b/a INDEPENDENCE BLUE CROSS, Defendant, Case No. 2:23-cv-00566 (E.D. Pa.). Before the Court is the Plaintiffs' Unopposed Motion for Final Approval of Class and Collective Action Settlement seeking final approval of the settlement of this class action asserting alleged violations of Pennsylvania Minimum Wage Act of 1968, 43 P.S. Sec. 260.1, ef seg. and Pennsylvania common law, and collective action asserting alleged violations of the Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201, ef seq. The Court has jurisdiction over the subject matter of this lawsuit, Plaintiffs, Settlement Class Members, Settlement Collective Members, and Defendant. The Court determines that the Settlement, which includes the payment of Six Hundred Sixty-Seven Thousand Dollars ($667,000.00) on behalf of Defendant, has been negotiated vigorously and at arm's length by and between Class Counsel and Defendant's Counsel. The Court further finds that at all times Plaintiffs have acted independently and that Plaintiffs and Class Counsel have fairly and adequately represented the Settlement Class and Settlement Collective in connection with the Lawsuit and the Settlement. The Court further finds that the Settlement arises from a genuine controversy between the Parties and is not the result of collusion, nor was the Settlement procured by fraud or misrepresentation. Pursuant to 29 U.S.C. Sec. 216(b) and Fed. R. Civ. P. 23(b)(3), the Court previously certified a Settlement Class consisting of: Settlement Class: All current and former employees who have worked for Defendant either in-person or remotely at any time from February 13, 2020 through February 13, 2023 in one or more of the following non-exempt positions: (1) customer service representative; (2) senior customer service representative; (3) lead customer service representative; and/or (4) team lead operations, who were employed in Defendant's Customer Service Department, regardless of the members or clients served. Settlement Collective: All current and former employees who have worked for Defendant either in-person or remotely at any time from February 13, 2020 through February 13, 2023 in one or more of the following non-exempt positions: (1) customer service representative; (2) senior customer service representative; (3) lead customer service representative; and/or (4) team lead operations, who were employed in Defendant's Customer Service Department, regardless of the members or clients served. No evidence has been submitted to the Court that alters the Court's determination that certification of the settlement classes 1s appropriate. As such, the Court approves the maintenance of the Lawsuit as a collective action pursuant to 29 U.S.C. Sec. 216(b) and a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). In addition, pursuant to Federal Rule of Civil Procedure 23(g), the Court also appoints Plaintiffs as the representatives of the settlement classes and Mobilio Wood, and Cohn Lifland Pearlman Herrmann & Knopf LLP, as Class Counsel. The Court finds that the Settlement is fair, reasonable, and adequate and finally approves the Settlement Agreement submitted by the Parties, including the Released Claims set forth in Paragraph 71 of the Settlement Agreement. The Court finds reasonable the service payments for Plaintiffs Jodda Moore and Terrell Aiken. Specifically, the Court awards $5,000 to Plaintiff Jodda Moore, and $5,000 to Plaintiff Terrell Aiken. These amounts shall be paid from the Maximum Settlement Amount. The Court grants Class Counsel's request for $222,333.33 in attorneys' fees, which is one-third of the Maximum Settlement Amount, plus $7,065.41 in costs and expenses reasonably expended litigating and resolving the lawsuit. The proposed expenses and fees are fair and reasonable and adequately reflect the risk counsel took in pursuing the case and a fair market value for the services provided. This conclusion is supported by the tangible benefits conferred on the class as a result of the legal services provided by Class Counsel, the complex nature of the litigation, the substantial risks involved, the quality of the work performed, and the efficient manner in which this litigation was resolved. These amounts shall be paid from the Maximum Settlement Amount. The Court approves the Administrator's fees, which shall be paid from the Maximum Settlement Amount. The Court approves Philabundance as the cy pres recipient. Based on the Settlement, the Court dismisses the Complaint and the Lawsuit against Defendant with prejudice on the merits. Judgment is entered pursuant to Federal Rule of Civil Procedure 54(b). A copy of the Court's Order is available at https://urlcurt.com/u?l=QEYrnM JOHNSON & JOHNSON: May Continue to Face Talc Class Suit in UK ------------------------------------------------------------- Kevin Dunleavy, writing for Fierce Pharma, reports that while Johnson & Johnson hopes to soon resolve more than 60,000 talc lawsuits with an $8 billion bankruptcy settlement in the United States, its baby power problems are only just beginning in the U.K., according to several news outlets in the country. A British law firm representing 1,900 talc claimants has sent a letter to J&J, giving advance notice of a group-action lawsuit that it plans to file in the High Court in London, according to The Financial Times. The claims would be the first of their kind in England against the U.S. healthcare giant, the newspaper reports, citing KP Law, the firm involved. The litigation is expected to begin next year. “All of the claimants, predominantly women but also some men, who have sustained cancer after using Johnson & Johnson's talcum powder products have experienced a life-changing illness," KP Law's head of product liability Tom Longstaff said in a statement posted on the firm's website. "In some cases, they have died from their cancer, leaving their families devastated. All of these innocent individuals deserve justice." In a statement to Fierce Pharma, a J&J spokesperson, referring to regulatory filing, said that its consumer health spinout Kenvue is responsible for talc litigation outside of the U.S. and Canada. As is the case in the U.S., the U.K. claimants allege that J&J's talc-based products contained cancer-causer asbestos and that the company continued selling them after knowing for decades that they were contaminated. While J&J has long defended its iconic baby powder, the company removed it from the market in North America in 2020 and then the rest of the world in 2023. J&J now sells a cornstarch-based version of the product. "(The company's) findings uniformly show the absence of asbestos contamination in Johnson's Baby Powder and the talc sourced for Johnson's Baby Powder. Independent science makes clear that talc is not associated with the risk of ovarian cancer nor mesothelioma," J&J litigation chief Erik Haas said in an emailed statement. In September in the U.S., J&J appeared to be nearing resolution of more than 60,000 claims when it added $1.75 billion to a proposed settlement, bringing its pot to $8 billion. The company's proposal gained the support of 83% of the claimants. But in October, the U.S. Department of Justice (DOJ) filed a motion (PDF) to dismiss Johnson & Johnson's settlement effort, which was facilitated by the company's bankruptcy claim. The DOJ called the strategy “a textbook example of bad faith,” and said that the subsidiary J&J established to handle the claims “has no need for bankruptcy relief.” The DOJ contends that there is nothing different about J&J's Chapter 11 case from its two previous bankruptcy attempts which were dismissed in New Jersey because a federal court ruled that the subsidiary, LTL Management, was not in financial distress. "There is a group of U.S. mass tort plaintiffs' lawyers who are actively pushing a false narrative about the history of talc and its alleged contamination to media globally. Their narrative defies logic, rewrites history, and ignores the facts; it is also not new or newsworthy and collapses under any balanced and thorough investigation," Haas said. [GN] KRAFT HEINZ: Grede Accord Has Final OK; Counsel's $5MM Fees OK'd ---------------------------------------------------------------- Judge Brett H. Ludwig of the U.S. District Court for the Eastern District of Wisconsin grants final approval of the parties' class action settlement in the lawsuit entitled DAKOTA GREDE, et al., on behalf of themselves and all others similarly situated, Plaintiff v. KRAFT HEINZ FOODS COMPANY, Defendant, Case No. 2:22-cv-01103-BHL (E.D. Wis.). On July 12, 2024, the parties filed their Joint Motion for Preliminary Settlement Approval and their Settlement Agreement and Release, in this Rule 23 of the Federal Rules of Civil Procedure class action. On July 18, 2024, the Court granted preliminary approval in part and scheduled a final fairness hearing. On Oct. 11, 2024, the parties filed a Joint Motion for Final Settlement Approval, the Plaintiff's Motion for Approval of Service Awards, and the Plaintiff's Motion for Approval of Attorneys' Fees and Costs. On Nov. 1, 2024, the Court conducted a Fairness Hearing on the parties' request for final approval of their Settlement Agreement and determined that the settlement in this matter, the Plaintiff's counsel's attorneys' fees and case-related costs and expenses, and the Plaintiff's service awards are fair and reasonable. Judge Ludwig finds the Settlement Agreement is a fair, reasonable, and adequate resolution of a bona fide wage dispute as it applies to the Class Members pursuant to Fed. R. Civ. P. 23(e). The matter is certified as a class pursuant to Fed. R. Civ. P. 23. The Court grants the parties' Joint Motion for Final Settlement Approval, and the parties' Settlement Agreement and Release is approved as fair, reasonable, and adequate pursuant to Fed. R. Civ. P. 23(e). Lead Named Plaintiffs, Dakota Grede and Steve Moffett, and Named Plaintiffs Patricia Montanez, Melinda Wright, Devin Crooms, Steve Brandt, Clyde Bell, LaGregory Bonner, Brian Beranek, Krystal Buckley, Ashley Merry, David Valykeo, Latrecia Adams, JoAnn Wyble, and Melissa Farmer are appointed as Class Representatives. Walcheske & Luzi, LLC, and Nilges Draher LLC are appointed as class counsel. Judge Ludwig holds the Settlement Agreement is binding on the parties. The Class Members' released claims are dismissed with prejudice. The wage claims of the Putative Class Members, who timely and properly excluded themselves in full accordance with the procedures set forth in the parties' Settlement Agreement, are dismissed without prejudice. The Court grants the Plaintiffs' Motion for Approval of Attorneys' Fees and Costs in the amount of $5,025,000. The Court also grants the Plaintiffs' Motion for Approval of Service Awards in the amount of $25,000 to Lead Named Plaintiff Dakota Grede; in the amount of $15,000 to Lead Named Plaintiff Steve Moffett; $2,000 each to Named Plaintiffs Patricia Montanez and Krystal Buckley; and $1,000 each to Named Plaintiffs Melinda Wright, Devin Crooms, Steve Brandt, Clyde Bell, LaGregory Bonner, Brian Beranek, Ashley Merry, David Valykeo, Latrecia Adams, JoAnn Wyble, and Melissa Farmer. The Court dismisses the lawsuit on the merits, with prejudice, and without further costs to either party. A full-text copy of the Court's Order is available at https://tinyurl.com/dujubd56 from PacerMonitor.com. L'OREAL USA: Painter Suit Transferred From W.D. Missouri to Hawaii ------------------------------------------------------------------ Judge Douglas Harpool of the U.S. District Court for the Western District of Missouri, Southern Division, grants the Plaintiffs' motion and transfers the case captioned ELLEN PAINTER AND ROBERT HIGHTOWER, individually, and on behalf of all others similarly situated, Plaintiffs v. L'OREAL USA, INC., Defendant, Case No. 6:24-cv-03077-MDH (W.D. Mo.), to the U.S. District Court for the District of Hawaii. Before the Court is the Plaintiffs' Motion for Transfer to the United States District Court for the District of Hawaii and the Defendant's Motion for Transfer to the United States District Court for the Southern District of New York. The case arises out of a class action lawsuit regarding Defendant L'Oreal USA, Inc.'s manufacturing, distribution, advertising, marketing, and sale of CeraVe(R) Cream benzoyl peroxide products ("BPO") that the Plaintiffs allege contain dangerously high levels of benzene, a carcinogen that has been linked to leukemia and other blood cancers. The Plaintiffs bought these products in Missouri and allege had they known about the high level of benzene they would not have purchased the product. The Plaintiffs are Missouri residents, who are suing individually and on behalf of those similarly situated. The Defendant is a Delaware corporation with its principal place of business in New York. The Plaintiffs are suing on state law claims of (1) a violation of the Missouri Merchandising Practices Act; (2) Fraud by omission/concealment; (3) negligent misrepresentation; and (4) unjust enrichment. The case is a part of five other similar class actions lawsuit across the country alleging high levels of benzene in the Defendant's BPO products. The first lawsuit filed was Snow v. L'Oreal USA, Inc., et al., Case No. 1:24-00110, in the District of Hawaii on March 8, 2024. Two cases are currently being adjudicated in the Southern District of New York. The Plaintiff is seeking to transfer this case to the District of Hawaii pursuant to the first-filed rule. The Defendant is seeking to transfer this case to the Southern District of New York under 28 U.S.C. Section 1404(a). Judge Harpool holds that parallel litigation exists between this case and Snow. Both cases share the same Defendant, involve claims that the Defendant's BPO products contain harmful levels of benzene and the Plaintiffs alleged they would not have purchased the BPO products had they know those products contained benzene. The Complaints assert identical issues of law and fact relating to findings of benzene contamination/degradation in the Defendant's BPO products. Further, the Plaintiff's in each case seek the same relief. Snow is asserting a national class action, that encompasses various subclasses, including Missouri plaintiffs. Snow also includes a count under Missouri state statutes. The Snow Complaint alleges that the Defendant violated the Missouri Merchandising Practices Act. While the Defendant highlights that different BPO products are claimed between the two cases, Judge Harpool holds that alone does not arise to a level that would defeat parallel litigation. The Court finds there is sufficient evidence to show the present case and Snow are in parallel litigation. Therefore, Judge Harpool holds, the District of Hawaii is the proper jurisdiction under the first-to-file rule. Judge Harpool points out that the Plaintiffs and their witnesses would experience inconvenience whether the forum is Hawaii or New York as both locations are away from Missouri. While the Defendants and their witnesses may find some convenance within New York, Judge Harpool opines that it does not escape the burden they will face having to travel to Hawaii for the first-filed action. A second action in the District of Hawaii would be minimal to the Defendant and their corporate witnesses having to be present for the ongoing litigation in the first-filed case. The interest of justice factor does favor transfer to the District of Hawaii, Judge Harpool holds. As the balance of interests weigh in favor of transfer to the District of Hawaii, the Court finds no reason to disrupt the first-to-file rule. Judge Harpool points out that there are no compelling reasons not to apply the first-filed rule and transfer this case to the District of Hawaii where it can be adjudicated in tandem with the lawsuit already pending. For these reasons, the Plaintiff's motion is granted and the Defendant's motion is denied. This case is transferred to the Federal District Court for the District of Hawaii. A full-text copy of the Court's Order is available at https://tinyurl.com/r5d93e3m from PacerMonitor.com. LAMB WESTON: Ofi Appointed as Lead Plaintiff in Class Action ------------------------------------------------------------ Magistrate Judge Candy W. Dale of the United States District Court for the District of Idaho ruled on several motions filed by two different institutional investors in the case captioned as CLEVELAND BAKERS AND TEAMSTERS PENSION FUND, on behalf of itself and all others similarly situated, Plaintiff, v. LAMB WESTON HOLDINGS, INC., THOMAS P. WERNER, and BERNADETTE M. MADARIETA, Defendants, Case No. 1:24-cv-00350-AKB-CWD (D. Idaho). The motions seek for the appointment of lead plaintiff in this class action, approval of lead plaintiff's selection of counsel, and consolidation of related actions: CLEVELAND BAKERS AND TEAMSTERS PENSION FUND, on behalf of itself and all others similarly situated, Plaintiff, v. LAMB WESTON HOLDINGS, INC., THOMAS P. WERNER, and BERNADETTE M. MADARIETA, Defendants, Case No. Case No. 1:24-cv-00282-AKB-CWD (D. Idaho); and LAMB WESTON HOLDINGS, INC., THOMAS P. WERNER, and BERNADETTE M. MADARIETA, Defendants, Case No. 1:24-cv-00350-AKB-CWD (D. Idaho). The potential lead plaintiffs are Ofi Invest Asset Management, on behalf of Ofi Invest Actions Amérique, and Oklahoma Police Pension and Retirement System (the "Ofi Funds"); and, the International Brotherhood of Teamsters Local No. 710 Pension Fund and the Macomb County Employees' Retirement System, Macomb County Retiree Health Care Fund, and Macomb County Intermediate Retirees Medical Benefits Trust (the "Pension Funds"). Plaintiffs Cleveland Bakers and Teamsters Pension Fund and West Palm Beach Firefighters' Pension Fund bring their respective class actions on behalf of all persons or entities that purchased shares of Lamb Weston common stock between July 25, 2023, and either April 3, 2024, or July 23, 2024.2 Both plaintiffs seek to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder. Lamb Weston, based in Eagle, Idaho, is one of the largest producers and distributors of frozen potato products, including French fries, which Lamb Weston sells to restaurants and retailers around the world. McDonald's Corporation is one of Lamb Weston's largest customers. On or about July 25, 2023, Lamb Weston announced the completion of the design of a new Enterprise Resource Planning software system that Lamb Weston would implement across its operations. According to Lamb Weston, the new ERP system would drive efficiency through increased automation, and would replace outdated technologies. Throughout the Class Period, and specifically by November 2023, Lamb Weston transitioned some of its previous financial and operating systems to its newly designed ERP system. Plaintiffs' claims against Defendants arise from statements Lamb Weston made during the Class Period that Plaintiffs allege were false and misleading. Lamb Weston represented that, through the design of its new ERP system, "it had strengthen[ed] [its] operational infrastructure." Lamb Weston also claimed that it had experienced only the "usual bumps" during its transition to the ERP system, and specifically assured investors that "the estimated financial impact of the [ERP] system's go live is included in our fiscal 2024 targets." Plaintiffs allege Lamb Weston's representations concerning its business, operations, and prospects, including its financial guidance for fiscal 2024, lacked a reasonable factual basis. Plaintiffs allege that, as a result of Defendants' wrongful acts and omissions, and the resulting declines in the market value of Lamb Weston common stock when the truth was disclosed, Plaintiffs and other Class members have suffered significant losses and damages. Plaintiffs' respective complaints allege a violation of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder against all defendants, and a violation of Section 20(a) of the Exchange Act against the individual defendants. The Ofi Funds and the Pension Funds filed their respective motions for consolidation, appointment of lead plaintiff and request for approval of lead counsel on August 12, 2024. The Ofi Funds filed their motion first, selecting the law firms of Bernstein Litowitz Berger & Grossmann LLP and Grant & Eisenhofer P.A. to serve as lead counsel and the Idaho law firm of Nevin, Benjamin & McKay, LLP to serve as Liaison Counsel. The Pension Funds filed their motion thereafter, selecting the law firms of Cohen Milstein Sellers & Toll PLLC and Labaton Keller Sucharow LLP to serve as Lead Counsel and the Idaho law firm of Johnson May as Liaison Counsel. In response to the Ofi Funds' motion, the Pension Funds conceded that, with $1.02 million dollars in alleged losses as opposed to the Ofi Funds' $1.52 million dollars in alleged losses, the Pension Funds do not possess the "largest financial interest in the relief sought by the class," as required by the Private Securities Litigation Reform Act of 1995. Accordingly, the Pension Funds do not oppose the competing motion filed by the Ofi Funds. However, the Pension Funds assert that, should the Court determine that the presumptive lead plaintiff is incapable or inadequate to represent the proposed class in this litigation, the Pension Funds would be willing and able to serve as lead plaintiff and/or class representative. Accordingly, the Court must determine which motion should be granted. The Ofi Funds' motion is granted. The Pension Funds' motion is granted in part and denied in part. The Pension Funds and the Ofi Funds seek consolidation of these matters, because both actions share the same facts and claims and consolidation would serve judicial economy. Neither motion is opposed. The Court will therefore grant the respective motions to consolidate. As a threshold matter, the Court finds, and the parties agree, that both lawsuits involve common questions of law and fact. Both actions stem from the purchase of Lamb Weston common stock, and its later decline during a discrete time period. Both actions assert identical claims. The Court has discretion, therefore, to consolidate the cases under Federal Rule of Civil Procedure 42(a). The Ofi Funds claim aggregate losses exceeding $1.5 million dollars on their Class Period purchases of Lamb Weston common stock. The Pension Fund has conceded they do not have the largest financial interest in the action. The Court notes based upon the amount of loss suffered by the Ofi Funds, it clearly has the largest financial interest in the relief sought and the most to gain from the lawsuit. The Ofi Funds therefore should be appointed lead plaintiff unless the Court finds that the Ofi Funds do not satisfy the typicality or adequacy requirements. The Court finds the Ofi Funds satisfy the typicality requirement, because it purchased Lamb Weston common stock during the Class Period in reliance on Defendants' alleged misrepresentations and thereafter suffered damages. According to the Court, the Ofi Funds' interests appear aligned with those of the other class members and there is no evidence of conflict between the representative and class interests. In reviewing the record, it also appears the Ofi Funds have retained qualified and experienced attorneys. Because the Ofi Funds satisfy the requirements of 15 U.S.C. Sec. 78u4(a)(3)(B)(iii)(I), the Court will approve their appointment as the presumptive lead plaintiff. Having reviewed the firms' resumes, the Court finds that Bernstein Litowitz and Grant & Eisenhofer are both sufficiently qualified and experienced to serve, respectively, as lead counsel. The Court will recommend approval of the lead Plaintiff's selection of counsel, Bernstein Litowitz and Grant & Eisenhofer, and their selection of Nevin Benjamin as Liaison Counsel. A copy of the Court's Memorandum Decision and Order is available at https://urlcurt.com/u?l=1Deq0x LATCH INC: Court Denies Bid to Transfer Schwartz Securities Suit ---------------------------------------------------------------- In the lawsuit styled SCOTT SCHWARTZ, individually and on behalf of all others similarly situated, Plaintiff v. LATCH, INC., et al., Defendants, Case No. 1:23-cv-00027-WCB (D. Del.), Judge William C. Bryson of the U.S. District Court for the District of Delaware denies the Defendants' motion to transfer venue. Plaintiff Scott Schwartz brought this securities class action against Defendant Latch, Inc., and several of Latch's officers and directors. Latch went public via a merger with a special purpose acquisition company in June 2021. On Jan. 11, 2023, Mr. Schwartz filed his complaint in this district, alleging that Latch's pre-merger registration statement contained false and misleading statements that are actionable under sections 11 and 15 of the Securities Act. Mr. Schwartz asserted that venue was proper in this district because Latch is a Delaware corporation and because Latch's Second Amended and Restated Certificate of Incorporation for Latch includes a forum selection clause requiring that actions against Latch, including actions under the Securities Act of 1933, be brought in Delaware. Shortly after summonses were served on the Defendants, the parties stipulated to extend the Defendants' deadline to respond to the complaint until after appointment of a lead plaintiff. On April 24, 2023, a lead plaintiff was appointed. Soon after, a Rule 16 scheduling conference was set for May 5, 2023. Before that conference took place, however, the parties submitted a "Joint Stipulation and Scheduling Order" for the Court's approval. On May 2, 2023, the Court entered that order in the form proposed by the parties, and the scheduling conference was canceled. As entered, the scheduling order explained that Latch intended to file restated financial statements with the Securities and Exchange Commission ("SEC") on or before Aug. 4, 2023, and that the Plaintiff intended to file an amended complaint that will supersede the Complaint after Latch files restated financial statements with the SEC. As a result, the order provided that, instead of responding to the complaint, Latch would file its restated financial statements, and Mr. Schwartz would then file an amended complaint based on the restated financial statements. After that, the order provided, the Defendants would file their proposed motion to transfer venue. As it admits, Latch has not yet filed restated financial statements. Mr. Schwartz has, therefore, not filed an amended complaint. Nevertheless, on Sept. 27, 2024, the Defendants filed their motion to transfer. Mr. Schwartz opposes the motion as both premature under the scheduling order and unjustified on the merits. As Mr. Schwartz explains, the Defendants agreed to postpone moving to transfer this case until after Mr. Schwartz filed his amended complaint. Mr. Schwartz, however, has been unable to file his amended complaint because Latch has not yet filed its restated financial statements. The Defendants' motion to transfer is, therefore, premature under the plain language of the scheduling order. The Defendants respond that the stipulation and scheduling order that they jointly filed was not a "Rule 16(b) scheduling order" but rather a mere stipulation, which no longer applies because the circumstances have changed since the order was entered 18 months ago. In his Memorandum Opinion and Order, Judge Bryson writes: "I am troubled by the defendants' disregard for the operative scheduling order. After I scheduled a Rule 16 conference, the parties prepared a document that they titled 'Joint Stipulation and [Proposed] Scheduling Order,' which they then jointly filed." Based on that filing, Judge Bryson entered an order titled "Joint Stipulation and Scheduling Order," and canceled the Rule 16 scheduling conference. Even if the May 2, 2023, order lacks the "required contents" of a Rule 16 scheduling order such that the parties need not show good cause to modify the order as the Defendants argue, Judge Bryson holds that the order is not only a pretrial court order but a pretrial court order that the Defendants asked the Court to enter. That pretrial court order clearly directed that the Defendants would not file their motion to transfer until after Mr. Schwartz filed an amended complaint. Accordingly, when the Defendants filed their motion early without court permission, they violated a Court order, Judge Bryson points out. In view of the mandatory nature of Rule 16(f)(2), Judge Bryson instructs the Defendants to file a letter brief of no more than three single-spaced pages within seven days of the date of this Order explaining why their noncompliance with the stipulated pretrial order (i.e., the operative scheduling order) was substantially justified or why imposing monetary sanctions would be unjust. The Plaintiff may respond to that letter brief with a letter brief of no more than three single-spaced pages filed within three days of the filing of the Defendants' letter brief. Although Judge Bryson finds that the Defendants' motion was filed in violation of the scheduling order, Judge Bryson evaluates the motion, in the interest of efficiency, rather than modify the scheduling order and require briefing to be resubmitted. The Defendants argue that they could have been sued in the United States District Court for the Southern District of New York because the relevant registration statement was issued in New York, where the pre-merger entities were located at the time of issuance. They further argue that the district court in that district would have jurisdiction over the case because the causes of action arise under sections 11 and 15 of the Securities Act. Mr. Schwartz does not contest that the case could have been filed in the Southern District of New York. Given that concession, Judge Bryson addresses the private and public interest factors articulated by the Third Circuit in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Judge Bryson finds the Plaintiff's choice of forum weighs against transfer, but not as strongly as it would if Delaware were Mr. Schwartz's home forum, and that the Defendants have no ground to complain about Mr. Schwartz's choice of forum, because Latch chose to incorporate in Delaware and sought to require that any actions against it, such as this one, be brought in Delaware. Based on that rationale, Judge Bryson finds that the burden on the Individual Defendants, who reside in New York, weighs somewhat in favor of transfer, but that the Defendants have failed to demonstrate that litigating in Delaware will pose any unique or unusual burden to Latch. Judge Bryson also finds, among other things, that the interest in the efficient administration of related cases does not significantly favor transfer. Because both the private interest factors and the public interest factors weigh against transfer, Judge Bryson denies the Defendants' motion. Judge Bryson notes that the Defendants have represented that Latch has yet to restate its financials and it is unclear when it will do so, given the expansive scope and complexity of the restatement process. Thus, Mr. Schwartz is instructed to inform the Court within 21 business days of this Order as to whether he wants to wait for Latch to restate its financials and subsequently file an amended complaint as contemplated by the current scheduling order or whether he would like to forgo filing an amended complaint and prosecute this litigation under the current complaint. A full-text copy of the Court's Memorandum Opinion and Order is available at https://tinyurl.com/3r897uwf from PacerMonitor.com. LAUNDRESS LLC: Court Dismisses Unilever as Defendant in Nixon Suit ------------------------------------------------------------------ In the lawsuit titled IN RE LAUNDRESS MARKETING AND PRODUCT LIABILITY LITIGATION, Case No. 22-CV-10667 (JMF) (S.D.N.Y.). This Document Relates To: Safran v. The Laundress, LLC, No. 24-CV-865 (JMF); Nixon v. The Laundress, LLC, No. 24-CV-1630 (JMF); Macha v. The Laundress, LLC, No. 24-CV-2108, Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York issued an Opinion and Order dismissing Conopco, Inc. ("Unilever"), as a defendant in the Nixon Action. In 2022, The Laundress, LLC, a manufacturer and distributor of luxury cleaning and laundry products, recalled approximately eight million units of its products, citing potential contamination with harmful bacteria. Several lawsuits against The Laundress, since consolidated, followed, including a putative class action brought by Lori Ostenfeld, Judy Stilwill, Deborah Geschwind, and Margaret Murphy (the "Class Action"); and a case brought by Ashley Sites and Gabriel Yibale (the "Sites Action"). In an Opinion and Order entered March 5, 2024, the Court granted in part and denied in part The Laundress's motions to dismiss the claims in those cases (Ostenfeld v. Laundress, LLC, No. 22-CV-10667 (JMF), 2024 WL 967124 (S.D.N.Y. Mar. 5, 2024)) ("Laundress I"). Now pending are The Laundress's motions to dismiss, pursuant to Rules 9(b) and 12(b) of the Federal Rules of Civil Procedure, three other consolidated cases: one brought by Plaintiff David Safran, Case No. 24-CV-865 (the "Safran Action"); the second brought by Plaintiff Stephanie Michelle Nixon, Case No. 24-CV-1630 (the "Nixon Action"); and the third brought by Plaintiffs Olga Macha and Lauris Macs (collectively, the "Macha Plaintiffs") on behalf of their minor child, A.S., Case No. 24-CV-2108 (the "Macha Action"). The Nixon Action is brought against The Laundress and its parent company, Conopco, Inc. ("Unilever"), which joins in the motion to dismiss. For the reasons set forth in this Opinion and Order, the Court grants in part and denies in part all three motions to dismiss. As a threshold matter, Judge Furman says Unilever is easily dismissed as a Defendant in the Nixon Action. Judge Furman explains that Nixon fails to distinguish Unilever's conduct to give adequate notice as to what it did wrong beyond making broad and conclusory allegation that Unilever manufactures, markets, designs, promotes, and/or distributes The Laundress Products since acquiring the company in 2019. Furthermore, under Maryland law, Judge Furman points out that it is well established that a parent corporation is generally not liable for the actions of its subsidiary unless certain narrow exceptions are met. Here, Nixon makes no allegations from which the Court can draw "the reasonable inference" that The Laundress was a "mere instrumentality" of Unilever. Accordingly, the claims against Unilever must be and are dismissed in the Nixon Action. That leaves The Laundress as the sole Defendant in all three actions. Judge Furman also finds that the strict liability and negligence claims in all three actions are sufficiently pleaded to overcome The Laundresss' proximate cause challenge at this stage. Judge Furman holds that The Laundress's motion to dismiss the Macha Plaintiffs' strict liability and negligence claims for failure to warn must be and is denied. As the Court held with respect to substantially similar (if not sparser) allegations in the Class Action and the Sites Action, Safran's allegations suffice under Rule 9(b). They are also enough under the Illinois Consumer Fraud Statute ("ICFS"), Judge Furman holds. Thus, The Laundress's motion to dismiss Safran's ICFS claim must be and is denied. With respect to The Laundress's arguments for dismissing Nixon's and Safran's warranty claims, Judge Furman finds that Safran, for his part, altogether fails to address The Laundress's arguments regarding his warranty claims. Because a party's failure to respond to arguments the opposing party makes in a motion to dismiss operates as a waiver or forfeiture of the claim, the Court holds that The Laundress's motion to dismiss Safran's warranty claims must be and is granted. By contrast, Judge Furman opines that privity is not a required element that must be shown independently for an implied warranty claim. Accordingly, and because The Laundress does not dispute that Nixon did in fact provide pre-suit notice on Dec. 5, 2022; Dec. 16, 2022; and again on May 11, 2023, the Court grants Nixon leave to amend her implied warranty claims to allege pre-suit notice. In sum, the Court rules that The Laundress's motions to dismiss the Safran Complaint, the Nixon Complaint, and the Macha Complaint are granted as to Safran's warranty claims (Counts VI and VII) and Nixon's warranty claims (Counts III, IV, and V), and otherwise denied. In addition, all of Nixon's claims against Unilever are dismissed. Nixon is, however, granted leave to amend her implied warranty claims to allege pre-suit notice. Any such amended complaint will be filed within two weeks of the date of this Opinion and Order. Unless and until the Court orders otherwise, The Laundress will file its Answers to Safran's and the Macha Plaintiffs' remaining claims within two weeks of the date of this Opinion and Order. The Laundress will file an answer or otherwise respond to Nixon's remaining claims within four weeks of the date of this Opinion and Order or two weeks of the filing of her amended complaint, whichever is earlier. The Clerk of Court is directed to terminate ECF Nos. 104, 106, and 137, and to terminate Conopco, Inc. (Unilever) as a Defendant in the Nixon Action. A full-text copy of the Court's Opinion and Order is available at https://tinyurl.com/458wn3mn from PacerMonitor.com. LAUNDRESS LLC: Court Grants Bid to Toss Safran's Warranty Claims ---------------------------------------------------------------- Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss David Safran's warranty claims in the lawsuit entitled IN RE LAUNDRESS MARKETING AND PRODUCT LIABILITY LITIGATION, Case No. 22-CV-10667 (JMF) (S.D.N.Y.). This Document Relates To: Safran v. The Laundress, LLC, No. 24-CV-865 (JMF); Nixon v. The Laundress, LLC, No. 24-CV-1630 (JMF); Macha v. The Laundress, LLC, No. 24-CV-2108. In 2022, The Laundress, LLC, a manufacturer and distributor of luxury cleaning and laundry products, recalled approximately eight million units of its products, citing potential contamination with harmful bacteria. Several lawsuits against The Laundress, since consolidated, followed, including a putative class action brought by Lori Ostenfeld, Judy Stilwill, Deborah Geschwind, and Margaret Murphy (the "Class Action"); and a case brought by Ashley Sites and Gabriel Yibale (the "Sites Action"). In an Opinion and Order entered March 5, 2024, the Court granted in part and denied in part The Laundress's motions to dismiss the claims in those cases (Ostenfeld v. Laundress, LLC, No. 22-CV-10667 (JMF), 2024 WL 967124 (S.D.N.Y. Mar. 5, 2024)) ("Laundress I"). Now pending are The Laundress's motions to dismiss, pursuant to Rules 9(b) and 12(b) of the Federal Rules of Civil Procedure, three other consolidated cases: one brought by Plaintiff David Safran, Case No. 24-CV-865 (the "Safran Action"); the second brought by Plaintiff Stephanie Michelle Nixon, Case No. 24-CV-1630 (the "Nixon Action"); and the third brought by Plaintiffs Olga Macha and Lauris Macs (collectively, the "Macha Plaintiffs") on behalf of their minor child, A.S., Case No. 24-CV-2108 (the "Macha Action"). The Nixon Action is brought against The Laundress and its parent company, Conopco, Inc. ("Unilever"), which joins in the motion to dismiss. For the reasons set forth in this Opinion and Order, the Court grants in part and denies in part all three motions to dismiss. As a threshold matter, Judge Furman says Unilever is easily dismissed as a Defendant in the Nixon Action. Judge Furman explains that Nixon fails to distinguish Unilever's conduct to give adequate notice as to what it did wrong beyond making broad and conclusory allegation that Unilever manufactures, markets, designs, promotes, and/or distributes The Laundress Products since acquiring the company in 2019. Furthermore, under Maryland law, Judge Furman points out that it is well established that a parent corporation is generally not liable for the actions of its subsidiary unless certain narrow exceptions are met. Here, Nixon makes no allegations from which the Court can draw "the reasonable inference" that The Laundress was a "mere instrumentality" of Unilever. Accordingly, the claims against Unilever must be and are dismissed in the Nixon Action. That leaves The Laundress as the sole Defendant in all three actions. Judge Furman also finds that the strict liability and negligence claims in all three actions are sufficiently pleaded to overcome The Laundresss' proximate cause challenge at this stage. Judge Furman holds that The Laundress's motion to dismiss the Macha Plaintiffs' strict liability and negligence claims for failure to warn must be and is denied. As the Court held with respect to substantially similar (if not sparser) allegations in the Class Action and the Sites Action, Safran's allegations suffice under Rule 9(b). They are also enough under the Illinois Consumer Fraud Statute ("ICFS"), Judge Furman holds. Thus, The Laundress's motion to dismiss Safran's ICFS claim must be and is denied. With respect to The Laundress's arguments for dismissing Nixon's and Safran's warranty claims, Judge Furman finds that Safran, for his part, altogether fails to address The Laundress's arguments regarding his warranty claims. Because a party's failure to respond to arguments the opposing party makes in a motion to dismiss operates as a waiver or forfeiture of the claim, the Court holds that The Laundress's motion to dismiss Safran's warranty claims must be and is granted. By contrast, Judge Furman opines that privity is not a required element that must be shown independently for an implied warranty claim. Accordingly, and because The Laundress does not dispute that Nixon did in fact provide pre-suit notice on Dec. 5, 2022; Dec. 16, 2022; and again on May 11, 2023, the Court grants Nixon leave to amend her implied warranty claims to allege pre-suit notice. In sum, the Court rules that The Laundress's motions to dismiss the Safran Complaint, the Nixon Complaint, and the Macha Complaint are granted as to Safran's warranty claims (Counts VI and VII) and Nixon's warranty claims (Counts III, IV, and V), and otherwise denied. In addition, all of Nixon's claims against Unilever are dismissed. Nixon is, however, granted leave to amend her implied warranty claims to allege pre-suit notice. Any such amended complaint will be filed within two weeks of the date of this Opinion and Order. Unless and until the Court orders otherwise, The Laundress will file its Answers to Safran's and the Macha Plaintiffs' remaining claims within two weeks of the date of this Opinion and Order. The Laundress will file an answer or otherwise respond to Nixon's remaining claims within four weeks of the date of this Opinion and Order or two weeks of the filing of her amended complaint, whichever is earlier. The Clerk of Court is directed to terminate ECF Nos. 104, 106, and 137, and to terminate Conopco, Inc. (Unilever) as a Defendant in the Nixon Action. A full-text copy of the Court's Opinion and Order is available at https://tinyurl.com/2ppx6k3b from PacerMonitor.com. LAUNDRESS LLC: Loses Bid to Dismiss Negligence Claim in Macha Suit ------------------------------------------------------------------ Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York denies the Defendant's motion to dismiss the Macha Plaintiffs' strict liability and negligence claims in the lawsuit captioned IN RE LAUNDRESS MARKETING AND PRODUCT LIABILITY LITIGATION, Case No. 22-CV-10667 (JMF) (S.D.N.Y.). This Document Relates To: Safran v. The Laundress, LLC, No. 24-CV-865 (JMF); Nixon v. The Laundress, LLC, No. 24-CV-1630 (JMF); Macha v. The Laundress, LLC, No. 24-CV-2108. In 2022, The Laundress, LLC, a manufacturer and distributor of luxury cleaning and laundry products, recalled approximately eight million units of its products, citing potential contamination with harmful bacteria. Several lawsuits against The Laundress, since consolidated, followed, including a putative class action brought by Lori Ostenfeld, Judy Stilwill, Deborah Geschwind, and Margaret Murphy (the "Class Action"); and a case brought by Ashley Sites and Gabriel Yibale (the "Sites Action"). In an Opinion and Order entered March 5, 2024, the Court granted in part and denied in part The Laundress's motions to dismiss the claims in those cases (Ostenfeld v. Laundress, LLC, No. 22-CV-10667 (JMF), 2024 WL 967124 (S.D.N.Y. Mar. 5, 2024)) ("Laundress I"). Now pending are The Laundress's motions to dismiss, pursuant to Rules 9(b) and 12(b) of the Federal Rules of Civil Procedure, three other consolidated cases: one brought by Plaintiff David Safran, Case No. 24-CV-865 (the "Safran Action"); the second brought by Plaintiff Stephanie Michelle Nixon, Case No. 24-CV-1630 (the "Nixon Action"); and the third brought by Plaintiffs Olga Macha and Lauris Macs (collectively, the "Macha Plaintiffs") on behalf of their minor child, A.S., Case No. 24-CV-2108 (the "Macha Action"). The Nixon Action is brought against The Laundress and its parent company, Conopco, Inc. ("Unilever"), which joins in the motion to dismiss. For the reasons set forth in this Opinion and Order, the Court grants in part and denies in part all three motions to dismiss. As a threshold matter, Judge Furman says Unilever is easily dismissed as a Defendant in the Nixon Action. Judge Furman explains that Nixon fails to distinguish Unilever's conduct to give adequate notice as to what it did wrong beyond making broad and conclusory allegation that Unilever manufactures, markets, designs, promotes, and/or distributes The Laundress Products since acquiring the company in 2019. Furthermore, under Maryland law, Judge Furman points out that it is well established that a parent corporation is generally not liable for the actions of its subsidiary unless certain narrow exceptions are met. Here, Nixon makes no allegations from which the Court can draw "the reasonable inference" that The Laundress was a "mere instrumentality" of Unilever. Accordingly, the claims against Unilever must be and are dismissed in the Nixon Action. That leaves The Laundress as the sole Defendant in all three actions. Judge Furman also finds that the strict liability and negligence claims in all three actions are sufficiently pleaded to overcome The Laundresss' proximate cause challenge at this stage. Judge Furman holds that The Laundress's motion to dismiss the Macha Plaintiffs' strict liability and negligence claims for failure to warn must be and is denied. As the Court held with respect to substantially similar (if not sparser) allegations in the Class Action and the Sites Action, Safran's allegations suffice under Rule 9(b). They are also enough under the Illinois Consumer Fraud Statute ("ICFS"), Judge Furman holds. Thus, The Laundress's motion to dismiss Safran's ICFS claim must be and is denied. With respect to The Laundress's arguments for dismissing Nixon's and Safran's warranty claims, Judge Furman finds that Safran, for his part, altogether fails to address The Laundress's arguments regarding his warranty claims. Because a party's failure to respond to arguments the opposing party makes in a motion to dismiss operates as a waiver or forfeiture of the claim, the Court holds that The Laundress's motion to dismiss Safran's warranty claims must be and is granted. By contrast, Judge Furman opines that privity is not a required element that must be shown independently for an implied warranty claim. Accordingly, and because The Laundress does not dispute that Nixon did in fact provide pre-suit notice on Dec. 5, 2022; Dec. 16, 2022; and again on May 11, 2023, the Court grants Nixon leave to amend her implied warranty claims to allege pre-suit notice. In sum, the Court rules that The Laundress's motions to dismiss the Safran Complaint, the Nixon Complaint, and the Macha Complaint are granted as to Safran's warranty claims (Counts VI and VII) and Nixon's warranty claims (Counts III, IV, and V), and otherwise denied. In addition, all of Nixon's claims against Unilever are dismissed. Nixon is, however, granted leave to amend her implied warranty claims to allege pre-suit notice. Any such amended complaint will be filed within two weeks of the date of this Opinion and Order. Unless and until the Court orders otherwise, The Laundress will file its Answers to Safran's and the Macha Plaintiffs' remaining claims within two weeks of the date of this Opinion and Order. The Laundress will file an answer or otherwise respond to Nixon's remaining claims within four weeks of the date of this Opinion and Order or two weeks of the filing of her amended complaint, whichever is earlier. The Clerk of Court is directed to terminate ECF Nos. 104, 106, and 137, and to terminate Conopco, Inc. (Unilever) as a Defendant in the Nixon Action. A full-text copy of the Court's Opinion and Order is available at https://tinyurl.com/52p8296d from PacerMonitor.com. LOVE'S TRAVEL: Fudge's Bid to Amend Class Action Complaint Denied ----------------------------------------------------------------- In the lawsuit entitled WILLIAM FUDGE, on behalf of himself and all others similarly situated, Plaintiff v. LOVE'S TRAVEL STOPS & COUNTRY STORES, INC., d/b/a LOVE'S, Defendant, Case No. 2:23-cv-00030 (M.D. Tenn.), Judge Waverly D. Crenshaw, Jr., of the U.S. District Court for the Middle District of Tennessee, Northeastern Division, denies the Plaintiffs' motion to amend class action complaint. On Aug. 15, 2024, the Court granted Love's Travel Stops & Country Stores, Inc., d/b/a/ Love's ("Love's), Murphy Oil USA, Inc. ("Murphy"), and Speedway LLC's ("Speedway") (collectively, "Defendants") Motion to Dismiss and entered judgment in favor of the Defendants. On Sept. 13, 2024, Plaintiffs William Fudge, Jason Watson and Mark Baird filed a Motion for Leave to Allow Filing of First Amended Class Action Complaint ("Motion to Amend"). Judge Crenshaw notes that the Motion to Amend does not comply with the Court's Local Rule that, unless otherwise provided, every motion that may require the resolution of an issue of law must be accompanied by a separately filed memorandum of law. Still, because the parties and the Court all have an interest in the final resolution of this case, the Court will not deny the Motion to Amend on this ground. Twenty days later, the Plaintiffs filed a Motion to Extend Filing Date of the Motion to Amend. The Defendants oppose both motions. Because the Motion to Amend was untimely, it and the Motion to Extend Filing Date will be denied, and this case will remain closed, Judge Crenshaw holds. On May 26, 2023, Fudge brought the lawsuit against Love's for breach of contract, unjust enrichment, money had and received, and declaratory relief. Shortly thereafter, Watson and Baird filed lawsuits against Murphy and Speedway, respectively, asserting the same claims based on similar sets of underlying facts (Case No. 2:23-cv-00036, Doc. No. 1; Case No. 3:23-cv-00589, Doc. No. 1). The Court consolidated all three actions, given the common factual allegations and legal theories at issue. The Court permitted Defendants to file one consolidated motion to dismiss. On Sept. 27, 2023, the Defendants filed the consolidated motion to dismiss. The Court held a hearing on the motion on Dec. 21, 2023. During oral argument, counsel for the Plaintiffs informed the Court that they were abandoning their breach of contract, money had and received, and declaratory relief claims, and would rely only on their unjust enrichment claims going forward. Given this, and that the Plaintiffs conceded they entered into contracts with the Defendants, the Court granted the Defendants' motion to dismiss and entered judgment for the Defendants on Aug. 15, 2024. Twenty-nine days later, on Sept. 13, 2024, the Plaintiffs filed the Motion to Amend pursuant to Rules 15(a)(2) and 59(e) of the Federal Rules of Civil Procedure. Nearly three weeks later, the Plaintiffs filed the Motion to Extend Filing Date pursuant to Rules 15(a) and 16(b). The Plaintiffs purport to rely on Rule 16(b)(4) to support their Motion to Extend Filing Date. Judge Crenshaw notes that once the scheduling order's deadline passes, a plaintiff must first show good cause under Rule 16(b) for failure to seek leave to amend before a court will consider whether amendment is proper under Rule 15(a). Judge Crenshaw opines that the Plaintiffs' reliance on Rule 16(b)(4) is improper here, in part because this case did not have a scheduling order. Given the inapplicability of Rule 16 to the instant motions, and that application of Rule 59(e) is dispositive here, the Court will not consider the parties' Rule 16 arguments further. The Plaintiffs move to amend and to extend the filing date for amendment pursuant to Rules 15(a) and 59(e). Because the Plaintiffs filed both motions after the Court entered judgment for the Defendants, Judge Crenshaw says the Plaintiffs must comply with the Rule 59 requirements for altering or amending a judgment for their motions to succeed. The Court's determination, and the Plaintiffs' concession, that the Plaintiffs did not file the Motion to Amend by the Rule 59(e) deadline prohibits the Court from granting either motion. The Court cannot grant the Plaintiffs the relief they seek in their Motion to Extend Filing Date. Further, no matter how convincing the Court finds the Plaintiffs' arguments for amendment, it does not have the authority to consider them because they were not presented in a timely Rule 59(e) motion. Accordingly, and regrettably, the Court must deny the Plaintiffs' motions. Even if the Court were able to consider the merits of the Motion to Amend, it is not convinced the Plaintiffs satisfied the requirements to amend a judgment under Rule 59(e). Judge Crenshaw explains the Plaintiffs did not identify which of the four Rule 59(e) grounds their motion is based on. The only plausible 59(e) ground the Plaintiffs allude to in their briefing is "a need to prevent manifest injustice." For these reasons, the Court denies the Plaintiffs' Motion to Amend and Motion to Extend Filing Date. A full-text copy of the Court's Memorandum Opinion is available at https://tinyurl.com/mtrhr4cf from PacerMonitor.com. MARKFORGED HOLDING: M&A Probes Proposed Merger With Nano Dimension ------------------------------------------------------------------ Monteverde & Associates PC (the "M&A Class Action Firm"), headquartered at the Empire State Building in New York City, is investigating: -- Markforged Holding Corporation (NYSE: MKFG), relating to its proposed merger with Nano Dimension Ltd. Under the terms of the agreement, Markforged stockholders will be entitled to receive $5.00 in cash per share of Markforged they own. ACT NOW. The Shareholder Vote is scheduled for December 5, 2024. Click link for more information: https://monteverdelaw.com/case/markforged-holding-corporation/. It is free and there is no cost or obligation to you. -- Crossfirst Bankshares, Inc. (Nasdaq: CFB), relating to its proposed merger with First Busey Corporation. Under the terms of the agreement, Crossfirst common stock will automatically be converted into the right to receive 0.6675 shares of Busey common stock. ACT NOW. The Shareholder Vote is scheduled for December 20, 2024. Click link for more information https://monteverdelaw.com/case/crossfirst-bankshares-inc/. It is free and there is no cost or obligation to you. -- Arch Resources, Inc. (NYSE: ARCH), relating to its proposed merger with Consol Energy, Inc. Under the terms of the agreement, all Arch Resources common stock will be automatically converted into the right to receive 1.326 shares of Consol Energy stock. ACT NOW. The Shareholder Vote is scheduled for January 9, 2025. Click link for more information https://monteverdelaw.com/case/arch-resources-inc/. It is free and there is no cost or obligation to you. NOT ALL LAW FIRMS ARE THE SAME. Before you hire a law firm, you should talk to a lawyer and ask: 1. Do you file class actions and go to Court? 2. When was the last time you recovered money for shareholders? 3. What cases did you recover money in and how much? About Monteverde & Associates PC Our firm litigates and has recovered money for shareholders . . . and we do it from our offices in the Empire State Building. We are a national class action securities firm with a successful track record in trial and appellate courts, including the U.S. Supreme Court. No company, director or officer is above the law. If you own common stock in any of the above listed companies and have concerns or wish to obtain additional information free of charge, please visit our website or contact Juan Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com or by telephone at (212) 971-1341. Contact: Juan Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave. Suite 4740 New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 Attorney Advertising. (C) 2024 Monteverde & Associates PC. The law firm responsible for this advertisement is Monteverde & Associates PC (www.monteverdelaw.com). Prior results do not guarantee a similar outcome with respect to any future matter. [GN] MARSH & MCLENNAN: Court Stays Bohnak Lawsuit -------------------------------------------- Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York granted the plaintiff's motion to stay the case captioned as NANCY BOHNAK, on behalf of herself and all others similarly situated, Plaintiff, -against- MARSH & MCLENNAN COS., INC and MARSH & MCLENNAN AGENCY LLC, Defendants, Case No. 21 Civ. 6096 (AKH) (S.D.N.Y.). Judge Hellerstein says a stay will avoid wasting the resources of the parties and this Court pending the Second Circuit's review of my decision striking Plaintiff's class action allegations. Indeed, should this case proceed as an individual action, Defendants have indicated their intent to bring a motion to dismiss based on a lack of subject matter jurisdiction, which I ruled that Defendants must wait for the decision on appeal before filing. Additionally, Defendants will not be prejudiced by a stay, which will also further the public's interest as 'considerations of judicial economy counsel, as a general matter, against investment of court resources in proceedings that may prove to have been unnecessary'. The status conference scheduled foris adjourned to March 7, 2025 at 10:00 a.m. A copy of the Court's Order dated November 12, 2024, is available at https://urlcurt.com/u?l=JPdL4Z MARYLAND: Summary Judgment Order Vacated in Bradford Suit --------------------------------------------------------- In the case captioned as KEITH BRADFORD, ET AL. v. MARYLAND STATE BOARD OF EDUCATION, No. 209 (Md. App. Ct.) Judge Deborah S. Eyler of the Appellate Court of Maryland vacated the order granting summary judgment in favor of the State and remanded with instructions for the Circuit Court for Baltimore City to enter an order dismissing the Petition for Further Relief and dissolving the Consent Decree. This appeal arises from litigation initiated thirty years ago over the funding and management of the Baltimore City Public School System. In the Circuit Court for Baltimore City, eight parents of then-current and future BCPSS students, acting on behalf of their children, filed suit against the State. They alleged that the education being provided to students in the BCPSS was so deficient as to violate their children's right to a "thorough and efficient System of Free Public Schools" under Article VIII, Section 1 of the Maryland Constitution. Subsequently, the suit was consolidated with a similar action by the Mayor and City Council of Baltimore against the State. The circuit court granted partial summary judgment to the Bradford Plaintiffs, ruling that students in the BCPSS were being denied their Article VIII rights. Soon thereafter, the case was settled among all the parties, as memorialized in a comprehensive consent decree. The settlement required an overhaul of the management structure for the BCPSS and the Board of School Commissioners of Baltimore City, a third-party defendant, and additional funding for the BCPSS over a five-year period. Over the next several years, the court issued three orders regarding the Consent Decree. The last such order, entered in 2004, was vacated in part by the Supreme Court of Maryland. Years went by. Then, on March 7, 2019, the Bradford Plaintiffs filed a Petition for Further Relief asking the circuit court to "enforce [its] prior declarations of Plaintiffs' constitutional rights to a ‘thorough and efficient' education under Article VIII[.]" The State filed two motions to dismiss, both of which were denied. Ultimately, the court granted the State's motion for summary judgment. The Bradford Plaintiffs (appellants and cross-appellees) noted an appeal from that judgment and the State (appellee and cross-appellant) noted a cross-appeal. The Bradford Plaintiffs present four questions for review: 1. Are claims for relief available under the Consent Decree or the Maryland Declaratory Judgment Act? 2. Did the circuit court err by holding that Article VIII "only requires an effort by the State to at most provide a basic education," rather than an "education that is adequate by contemporary educational standards"? 3. Did the circuit court err by granting summary judgment for the State on a record containing reports of egregious facility conditions, low academic achievement, and funding inadequacies? 4. Did the circuit court err by ruling that its power to remedy constitutionally-inadequate school funding is limited by the political question or separation of powers doctrines? In its cross-appeal, the State poses one primary question: 1. Did the circuit court err by denying the State's motion to dismiss or dissolve the consent decree? The Appellate Court finds the circuit court erred by denying the State's motion to dismiss the Petition for Further Relief. Judge Eyler says 'Yes,' to the State's primary question on cross-appeal, vacate the judgment entered on summary judgment, and remand for entry of a judgment dismissing the petition. Given the court's resolution of that issue, she concludes that the questions raised by the Bradford Plaintiffs on appeal are moot and that it is unnecessary to address the State's alternative questions on cross-appeal. A copy of the Court's Opinionis available at https://urlcurt.com/u?l=n2svk8 META PLATFORMS: Supreme Court Allows Class Action to Proceed ------------------------------------------------------------ Yahoo Finance reports that the Supreme Court is allowing a multibillion-dollar class action investors' lawsuit to proceed against Facebook parent Meta, stemming from the privacy scandal involving the Cambridge Analytica political consulting firm. The justices heard arguments in November in Meta's bid to shut down the lawsuit. On Friday, November 22, they decided that they were wrong to take up the case in the first place. The high court dismissed the company's appeal, leaving in place an appellate ruling allowing the case to go forward. Investors allege that Meta did not fully disclose the risks that Facebook users' personal information would be misused by Cambridge Analytica, a firm that supported Donald Trump's first successful Republican presidential campaign in 2016. Inadequacy of the disclosures led to two significant price drops in the price of the company's shares in 2018, after the public learned about the extent of the privacy scandal, the investors say. Meta spokesman Andy Stone said the company was disappointed by the court's action. "The plaintiff's claims are baseless and we will continue to defend ourselves as this case is considered by the District Court," Stone said in an emailed statement. Meta already has paid a $5.1 billion fine and reached a $725 million privacy settlement with users. Cambridge Analytica had ties to Trump political strategist Steve Bannon. It had paid a Facebook app developer for access to the personal information of about 87 million Facebook users. That data was then used to target U.S. voters during the 2016 campaign. The lawsuit is one of two high court cases involving class-action lawsuits against tech companies. The justices also are wrestling with whether to shut down a class action against Nvidia. Investors say the company misled them about its dependence on selling computer chips for the mining of volatile cryptocurrency. [GN] MONGODB INC: Pension Funds Appointed Lead Plaintiffs in Baxter Suit ------------------------------------------------------------------- Judge Gregory H. Woods of the United States District Court for the Southern District of New York granted the Pension Funds' motion for appointment as lead plaintiffs and for approval of their selection of class counsel in the case captioned as JOHN BAXTER, individually and on behalf of all others similarly situated, Plaintiff, -v- MONGODB, INC., DEV C. ITTYCHERIA, and MICHAEL LAWRENCE GORDON, Defendants, Case No. 1:24-cv-5191-GHW (S.D.N.Y.). On July 9, 2024, John Baxter commenced this action on behalf of all investors who purchased or otherwise acquired MongoDB, Inc. securities between August 31, 2023 and May 30, 2024. Mr. Baxter alleges that Defendants disseminated materially false and misleading statements related to those securities in violation of sections 10(b) and 20(a) of the Securities and Exchange Act of 1934. Two groups of plaintiffs -- (1) Carol Jou and Thomas C. Walker (collectively, the "Individual Investors") and (2) Heavy & General Laborers' Locals 472 & 172 Pension & Annuity Funds and Local 272 Labor-Management Pension Fund (collectively, the "Pension Funds") -- have filed competing motions to serve as lead plaintiffs in this action. The Pension Funds and the Individual Investors claim that they lost money as a result of the decline in value of MongoDB stock due to Defendants' alleged violations of the securities laws. During the Class Period, the Pension Funds purchased 4,592 shares and sold 500 shares of MongoDB stock. They assert that they spent $1,588,472, net of any gains from sales of stock during the Class Period. The Pension Funds assert that they lost $622,515 as a result of Defendants' alleged fraudulent conduct. Mr. Walker asserts that he purchased 2,100 shares during the Class Period for $883,251. Mr. Walker asserts that he suffered losses of $374,644.55 as a result of Defendants' alleged fraudulent conduct. Ms. Jou asserts that during the Class Period, she acquired 2,600 shares of MongoDB's stock, and sold 800. Net of her gains from her sales, Mr. Jou spent $765,500 to acquire MongoDB stock during the Class Period.Ms. Jou asserts that she lost $342,332.26 in the value of her shares of the company's stock as a result of Defendants' alleged fraud. In addition to her trading in the company's common stock, Ms. Jou also sold put options on the company's stock during the Class Period. Unlike her investments in the company's stock during the Class Period, Ms. Jou's options trading was successful -- she reaped a profit of $102,343.00 on those transactions. Together, the Individual Investors suffered losses of $716,976.81 as a result of their investments in MongoDB stock during the Class Period. If the Individual Investors' collective losses are offset by the gains Ms. Jou earned from her options trading, the Individual Investors' losses decrease to $614,633.81. The Court finds the Pension Funds are the most adequate lead plaintiffs because they satisfy the requirements set forth in the PSLRA: the Pension Funds filed a timely motion; they have the largest financial interest; and they have made a preliminary showing that they satisfy the requirements of Rule 23. According to the Court, Because Ms. Jou's options-related gains offset the Individual Investors' losses, the Pension Funds have the largest financial interest in this case. The Court Court finds the Pension Funds have made a preliminary showing that they have met the typicality requirement. The Pension Funds' claims arise out of the same course of events as those of the class -- the purchase of MongoDB common stock during the Class Period. Additionally, it is anticipated that the Pension Funds will make legal arguments common to all class members' claims under various provisions of the Securities Exchange Act of 1934. The Pension Funds have also made a preliminary showing that they would be adequate class representatives, the Court notes. Judge Woods says, "Nothing before the Court suggests that the Pension Funds' interests are antagonistic to those of other class members. The Pension Funds' choice of counsel, Robbins, Geller, Rudman & Dowd, LLP, is qualified, experienced, and generally able to conduct the litigation. Finally, the Pension Funds have suffered alleged losses greater than $600,000 and thus have a sufficient financial interest in the case's outcome to suggest that they will pursue the case with vigor. Therefore, the Pension Funds are presumptively the most adequate plaintiff." The Court sees no reason not to accept the Pension Funds' choice of counsel. Therefore, Robbins Geller is appointed Lead Class Counsel. A copy of the Court's Memorandum Opinion & Order is available at https://urlcurt.com/u?l=Nq9L9E MYSTIC VALLEY: Fails to Secure Personal, Health Info, Barry Alleges ------------------------------------------------------------------- PATRICIA BARRY, individually and on behalf of all others similarly situated v. MYSTIC VALLEY ELDER SERVICES, INC., Case No. 1:24-cv-12851 (D. Mass., Nov. 15, 2024) alleges that the Defendant failed to properly secure and safeguard the personally identifiable information and protected health information of the Plaintiff and other similarly situated customers of the Defendant ("Class Members"), including their names, Social Security numbers, dates of birth, health insurance information, and medical information. On Aug. 5, 2024, the Defendant discovered suspicious activity on its information systems that it would later discover was the result of a hacker gaining access to its information systems, thus gaining access to the Private Information of Plaintiff and the proposed Class Members. The Defendant then took more than two months two months until July 11, 2024, before it realized the scope of the Data Breach. Even after that significant delay, the Defendant delayed a further three months to simply inform the Plaintiff and members of the proposed Class that their Private Information had been affected by the Data Breach. The Plaintiff received her notification letter on Oct. 22, 2024. Because of the Data Breach, the Plaintiff has already experienced identity theft and has suffered significant financial harm as a result. The Plaintiff has suffered a loss of over $51,000 fraudulently withdrawn from her bank account, with numerous other attempts to fraudulently withdraw money from her account. On top of the stolen money, this fraudulent activity has resulted in the Plaintiff's bank placing a hold on her account. The Plaintiff was forced to file an affidavit and police report and is still waiting to recover these stolen funds, the suit says. As a result, the Plaintiff has and continues to spend valuable time attempting to fix the consequences of the identity theft and fraud she has experienced due to the Data Breach, the suit asserts. Mystic Valley is a non-profit organization that promotes the health and independence of elders, and adults with disabilities.[BN] The Plaintiff is represented by: Kimberly A. Dougherty, Esq. JUSTICE LAW COLLABORATIVE, LLC 210 Washington Street North Easton, MA 02356 Telephone: (508) 230-2700 Facsimile: (285) 278-0287 - and - J. Gerard Stranch, IV, Esq. Grayson Wells, Esq. STRANCH, JENNINGS & GARVEY, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 E-mail: gstranch@stranchlaw.com gwells@stranchlaw.com NEW YORK CITY: Court Consolidates Calliste and Campbell Suits ------------------------------------------------------------- Magistrate Judge Robert W. Lehrburger of the U.S. District Court for the Southern District of New York grants the Defendant's motion to consolidate these two cases: MARY CAMPBELL, et al., Plaintiffs v. CITY OF NEW YORK, Defendant, Case No. 24-CV-2575 (JHR) (RWL) (S.D.N.Y.); and KAMOL CALLISTE, et al., Plaintiffs v. CITY OF NEW YORK, Defendant, Case No. 1:24-cv-04016-JHR-RWL (S.D.N.Y.). In this wage-and-hour case, Defendant City of New York moves to consolidate the Calliste case with another wage-and-hour case, Campbell v. City of New York. According to counsel for the Defendant, the City of New York is not a proper party in either lawsuit; rather, the proper Defendant is City University of New York. Judge Lehrburger notes that that issue will be addressed separately through amendment of the pleadings or other process. The Plaintiffs oppose and cross-move for referral to mediation and a stay of 60 days. For the reasons set forth in this Order, Judge Lehrburger holds that the Defendant's motion will be granted insofar as the cases will be consolidated for discovery and without prejudice to a future application to consolidate for purposes of trial; and the Calliste Plaintiffs' cross-motion will be denied. The Calliste case was filed as a collective action on May 24, 2024. The 17 Plaintiffs are current and former employees, who work or have worked in the position of Peace Officer, Sergeant, Corporal, Security Assistant, and Security Specialist for the Public Safety Department ("PSD") of the City University of New York ("CUNY"). They assert claims for unpaid wages in violation of the Fair Labor Standards Act ("FLSA"). More specifically, the Plaintiffs claim they were not paid for work before their paid shifts, after their paid shifts, or during meal periods, and also that the Defendant did not include various "differential payments" (i.e., "night shift differential," "firearms differential," and "fire safety differential") in calculating the regular rate of pay for purposes of determining amounts due for overtime. On April 4, 2024, less than two months before Calliste was filed, the Campbell case was filed. That case is a putative collection action brought on behalf of current and former employees, who work or have worked for CUNY in the position of Peace Officer, Sergeant, Corporal, Security Assistant, and Security Specialist -- the same positions as are at issue in Calliste. The plaintiffs in Campbell seek certification of two collectives, a Non-Supervisory Collective composed of Peace Officers, Security Assistants, and Security Specialists, and a Supervisory Collective composed of Corporals and Sergeants. As in Calliste, the Campbell Plaintiffs assert claims for unpaid overtime in violation of the FLSA; specifically, that the plaintiffs were not paid for work performed before and after their shifts or during meal times, and that the Defendant did not include "differential payments" (i.e., "shift differential," "arms differential," and "fire safety differential") in calculating the regular rate of pay for purposes of determining amounts due for overtime. Judge Lehrburger notes that the two cases have some differences. For instance, the Campbell Plaintiffs seek a court-approved notice of the action to all collective members notifying them of their right to join the lawsuit. The Calliste Plaintiffs do not seek such notice. The Plaintiffs in Calliste bring the action as a single collective, whereas the plaintiffs in Campbell seek certification of two collectives. As to the substantive claims, the only difference evident from the complaints is that Campbell advances a claim for failure to pay off-the-clock work (i.e., pre-shift, post-shift, and meal time) on behalf of only Corporals and Sergeants, while Calliste does so on behalf of all officer positions. The Plaintiffs' counsel in the two cases are not the same. On June 12, 2024, the Defendant filed a letter motion to consolidate Calliste with Campbell. The Defendant represents that the Campbell Plaintiffs are amenable to consolidation, and counsel for the Campbell Plaintiffs has so confirmed. The Calliste Plaintiffs oppose consolidation and move instead for a stay of 60 days and referral of Calliste to mediation. The parties filed additional letter briefs in reply. Oral argument took place on Nov. 12, 2024. Judge Lehrburger holds that the two cases should be consolidated for discovery purposes. More than sharing a common question of law or fact, they share multiple central questions of law and fact. They both assert FLSA claims against CUNY on behalf of the same employee positions. They both implicate the same fundamental claims: failure to pay for pre-shift, post-shift, and meal time spent working, and to pay overtime based on a regular rate of pay that factors in differential payments. They both seek damages based on those alleged transgressions and corresponding liquidated damages. Such fundamental common questions counsel toward consolidation, Judge Lehrburger holds. To proceed separately would contribute to the waste associated with duplicative discovery and multiple trials, and the danger of inconsistent verdicts. Judge Lehrburger also finds, among other things, that the similarity and overlap of the Calliste and Campbell cases warrant consolidation. Doing so will be efficient, avoid duplication, save judicial resources, and potentially avoid inconsistent judgments. Even the Calliste Plaintiffs recognize that consolidation may make sense, although, from their perspective, at a later time. The Calliste Plaintiffs also argue that foregoing consolidation at this time and instead staying their case and referring it to mediation will facilitate the opportunity for early resolution between the Calliste Plaintiffs and the Defendant. Judge Lehrburger says that is a laudable goal, but nothing prevents the parties form discussing settlement if the cases are consolidated for discovery. Perhaps the strongest factor weighing against consolidation is the burden that consolidation would impose on the Calliste Plaintiffs, Judge Lehrburger points out. Although both actions have been filed as collective actions, the Calliste Plaintiffs do not seek either conditional certification or a notice procedure soliciting other plaintiffs to join. The Campbell action entails both. Consolidation, therefore, could cause the Calliste Plaintiffs to incur delay and expense they sought to avoid. On balance, considering convenience, judicial economy, fairness, prejudice, delay, and all other relevant factors, the Court finds that consolidation is warranted, although limited to the discovery phase at this juncture. Accordingly, the Court rules as follows: 1. The Defendant's motion to consolidate the two cases is granted for purposes of discovery without prejudice to a later application to consolidate for all remaining purposes; 2. The Calliste Plaintiffs' motion to stay is denied; 3. The parties will meet and confer and jointly file a proposed case management plan and scheduling order by Dec. 2, 2024; and 4. The Court will entertain a request for referral to mediation if there is mutual willingness to participate by the Defendant on one hand and, on the other, the Calliste Plaintiffs and/or the Campbell Plaintiffs. A full-text copy of the Court's Order is available at https://tinyurl.com/4w2vc6ed from PacerMonitor.com. NEW YORK CITY: Court Denies Calliste's Bid for Mediation and Stay ----------------------------------------------------------------- Magistrate Judge Robert W. Lehrburger of the U.S. District Court for the Southern District of New York denies the Plaintiffs' cross-motion for referral to mediation and stay in the lawsuit titled KAMOL CALLISTE, et al., Plaintiffs v. CITY OF NEW YORK, Defendant, Case No. 1:24-cv-04016-JHR-RWL (S.D.N.Y.). In this wage-and-hour case, Defendant City of New York moves to consolidate the instant case with another wage-and-hour case, Campbell v. City of New York (MARY CAMPBELL, et al., Plaintiffs v. CITY OF NEW YORK, Defendant, Case No. 24-CV-2575 (JHR) (RWL) (S.D.N.Y.)). According to counsel for the Defendant, the City of New York is not a proper party in either lawsuit; rather, the proper Defendant is City University of New York. Judge Lehrburger notes that that issue will be addressed separately through amendment of the pleadings or other process. The Plaintiffs oppose and cross-move for referral to mediation and a stay of 60 days. For the reasons set forth in this Order, Judge Lehrburger holds that the Defendant's motion will be granted insofar as the cases will be consolidated for discovery and without prejudice to a future application to consolidate for purposes of trial; and the Calliste Plaintiffs' cross-motion will be denied. The Calliste case was filed as a collective action on May 24, 2024. The 17 Plaintiffs are current and former employees, who work or have worked in the position of Peace Officer, Sergeant, Corporal, Security Assistant, and Security Specialist for the Public Safety Department ("PSD") of the City University of New York ("CUNY"). They assert claims for unpaid wages in violation of the Fair Labor Standards Act ("FLSA"). More specifically, the Plaintiffs claim they were not paid for work before their paid shifts, after their paid shifts, or during meal periods, and also that the Defendant did not include various "differential payments" (i.e., "night shift differential," "firearms differential," and "fire safety differential") in calculating the regular rate of pay for purposes of determining amounts due for overtime. On April 4, 2024, less than two months before Calliste was filed, the Campbell case was filed. That case is a putative collection action brought on behalf of current and former employees, who work or have worked for CUNY in the position of Peace Officer, Sergeant, Corporal, Security Assistant, and Security Specialist -- the same positions as are at issue in Calliste. The plaintiffs in Campbell seek certification of two collectives, a Non-Supervisory Collective composed of Peace Officers, Security Assistants, and Security Specialists, and a Supervisory Collective composed of Corporals and Sergeants. As in Calliste, the Campbell Plaintiffs assert claims for unpaid overtime in violation of the FLSA; specifically, that the plaintiffs were not paid for work performed before and after their shifts or during meal times, and that the Defendant did not include "differential payments" (i.e., "shift differential," "arms differential," and "fire safety differential") in calculating the regular rate of pay for purposes of determining amounts due for overtime. Judge Lehrburger notes that the two cases have some differences. For instance, the Campbell Plaintiffs seek a court-approved notice of the action to all collective members notifying them of their right to join the lawsuit. The Calliste Plaintiffs do not seek such notice. The Plaintiffs in Calliste bring the action as a single collective, whereas the plaintiffs in Campbell seek certification of two collectives. As to the substantive claims, the only difference evident from the complaints is that Campbell advances a claim for failure to pay off-the-clock work (i.e., pre-shift, post-shift, and meal time) on behalf of only Corporals and Sergeants, while Calliste does so on behalf of all officer positions. The Plaintiffs' counsel in the two cases are not the same. On June 12, 2024, the Defendant filed a letter motion to consolidate Calliste with Campbell. The Defendant represents that the Campbell Plaintiffs are amenable to consolidation, and counsel for the Campbell Plaintiffs has so confirmed. The Calliste Plaintiffs oppose consolidation and move instead for a stay of 60 days and referral of Calliste to mediation. The parties filed additional letter briefs in reply. Oral argument took place on Nov. 12, 2024. Judge Lehrburger holds that the two cases should be consolidated for discovery purposes. More than sharing a common question of law or fact, they share multiple central questions of law and fact. They both assert FLSA claims against CUNY on behalf of the same employee positions. They both implicate the same fundamental claims: failure to pay for pre-shift, post-shift, and meal time spent working, and to pay overtime based on a regular rate of pay that factors in differential payments. They both seek damages based on those alleged transgressions and corresponding liquidated damages. Such fundamental common questions counsel toward consolidation, Judge Lehrburger holds. To proceed separately would contribute to the waste associated with duplicative discovery and multiple trials, and the danger of inconsistent verdicts. Judge Lehrburger also finds, among other things, that the similarity and overlap of the Calliste and Campbell cases warrant consolidation. Doing so will be efficient, avoid duplication, save judicial resources, and potentially avoid inconsistent judgments. Even the Calliste Plaintiffs recognize that consolidation may make sense, although, from their perspective, at a later time. The Calliste Plaintiffs also argue that foregoing consolidation at this time and instead staying their case and referring it to mediation will facilitate the opportunity for early resolution between the Calliste Plaintiffs and the Defendant. Judge Lehrburger says that is a laudable goal, but nothing prevents the parties form discussing settlement if the cases are consolidated for discovery. Perhaps the strongest factor weighing against consolidation is the burden that consolidation would impose on the Calliste Plaintiffs, Judge Lehrburger points out. Although both actions have been filed as collective actions, the Calliste Plaintiffs do not seek either conditional certification or a notice procedure soliciting other plaintiffs to join. The Campbell action entails both. Consolidation, therefore, could cause the Calliste Plaintiffs to incur delay and expense they sought to avoid. On balance, considering convenience, judicial economy, fairness, prejudice, delay, and all other relevant factors, the Court finds that consolidation is warranted, although limited to the discovery phase at this juncture. Accordingly, the Court rules as follows: 1. The Defendant's motion to consolidate the two cases is granted for purposes of discovery without prejudice to a later application to consolidate for all remaining purposes; 2. The Calliste Plaintiffs' motion to stay is denied; 3. The parties will meet and confer and jointly file a proposed case management plan and scheduling order by Dec. 2, 2024; and 4. The Court will entertain a request for referral to mediation if there is mutual willingness to participate by the Defendant on one hand and, on the other, the Calliste Plaintiffs and/or the Campbell Plaintiffs. A full-text copy of the Court's Order is available at https://tinyurl.com/ybzbabae from PacerMonitor.com. NEW YORK, NY: Court Tosses Remaining Claims in Soybel Suit ---------------------------------------------------------- Judge Carol Bagley Amon of the United States District Court for the Eastern District of New York dismissed the remaining plaintiffs' claim for equitable relief in the case captioned as ALEC SOYBEL, et al. Plaintiffs, -against- THE CITY OF NEW YORK, et al. Defendants, Case No. No. 21-cv-1846 (CBA) (MMH) (E.D.N.Y.). On March 15, 2024, the Court partially granted Plaintiffs' motion to reconsider its decision to dismiss their claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. Although Judge Amon determined that the claims of Boris Shapiro, Savas Tsitiridis, and Guy Roberts against Defendants City of New York and New York Taxi & Limousine Commission were not time barred, she dismissed Remaining Plaintiffs' claims for RICO treble damages. She directed Remaining Plaintiffs to show cause as to why their claims for equitable relief were not also subject to dismissal. Remaining Plaintiffs and Remaining Defendants have since submitted memoranda of law as to the availability of equitable remedies under RICO's private cause of action, as established by 18 U.S.C. Sec. 1964(a). On March 15, 2024, the Court addressed a motion made by Plaintiffs to reconsider my decision to dismiss their Amended Complaint as time barred. Judge Amon had previously determined that under American Pipe and Constr. Co. v. Utah, 414 U.S. 538 (1974), the statute of limitations on Plaintiffs' RICO claims was tolled from January 2017 to September 21, 2017. The latter date marked the New York Supreme Court's dismissal of the fraud-related claims in Singh v. City of New York, Index No. 701402/2017 (N.Y. Sup. Ct. 2017), a class action that was factually similar to the instant case. But this nine-month tolling period fell "six or seven months short of the tolling period Plaintiffs would need to render their claims timely." Thus, the Court dismissed Plaintiffs' Amended Complaint as time barred. Plaintiffs moved for reconsideration, arguing that the proper end date for tolling was not September 21, 2017, but rather either May 14, 2020, or December 30, 2020. Upon reconsideration, Judge Amon determined that December 30, 2020, was the proper end date for the tolling period. Thus, "Plaintiffs were well within the four-year statute of limitations for their RICO claims." As a result, the Court partially granted Plaintiffs' motion for reconsideration. Judge Amon explains, "I determined that only a subset of Plaintiffs' claims in this action -- those made by plaintiffs who purchased medallions at the auctions at issue in Singh and made against the defendants who were named in Singh -- were equitably tolled under American Pipe. Thus, I dismissed all claims except those made by Remaining Plaintiffs against Remaining Defendants. Then, based on RICO standing and municipal immunity grounds, I dismissed Remaining Plaintiffs' claims for treble damages against Remaining Defendants. Moreover, I found that to whatever extent Remaining Plaintiffs' claims would withstand the motion to dismiss, Remaining Plaintiffs could only bring their suits in their individual capacities, rather than on behalf of a class." Judge Amon left open one issue: whether she should dismiss Remaining Plaintiffs' claims for equitable relief, including disgorgement. She ordered Remaining Plaintiffs to show cause as to "why their other requests for relief based on their RICO claims, including declaratory relief and disgorgement . . . should not also be subject to dismissal on the basis that their aim was to punish past conduct rather than ‘prevent[ing] and restrain[ing]' future conduct and thus outside of the scope of her powers under the RICO statute." On April 15, 2024, Remaining Plaintiffs filed a memorandum of law arguing that they could seek disgorgement of ill-gotten gains under RICO. They contended that the text and legislative history of the RICO statute authorize a broad set of equitable remedies, including disgorgement. On May 31, 2024, Remaining Defendants filed a responsive memorandum of law, in which they argued that the statutory text of RICO precludes the provision of disgorgement, which is an "inherently backward-looking" remedy. They relied on United States v. Carson, 52 F.3d 1173 (2d Cir. 1995), which they claimed clearly forecloses disgorgement as a remedy in this case. Judge Amon says, "Taking the facts of this case as Remaining Plaintiffs plead them, ordering disgorgement would contravene Carson. The allegedly ill-gotten gains from the medallion auctions were obtained over ten years ago, there are no similar auctions on the horizon to which these gains might be put to fraudulent use, and the alleged bad actors are no longer in positions of power. Considering the circumstances alleged by Remaining Plaintiffs, I find that I cannot order disgorgement of ill-gotten gains in this case." She concludes, "I find that on the pleadings, disgorgement is not available to Remaining Plaintiffs. Therefore, I dismiss the remainder of Remaining Plaintiffs' claims." A copy of the Court's Memorandum & Order is available at https://urlcurt.com/u?l=snbQNV PEAVEY ELECTRONICS: Website Inaccessible to the Blind, Thorne Says ------------------------------------------------------------------ BRAULIO THORNE, on behalf of himself and all other persons similarly situated v. PEAVEY ELECTRONICS CORPORATION, Case No. 1:24-cv-08780 (S.D.N.Y., Nov. 18, 2024) sues the Defendant for its failure to design, construct, maintain, and operate its interactive website, https://peavey.com, to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons, under the Americans with Disabilities Act. During Plaintiff's visits to the Website, the last occurring on Nov. 15, 2024, in an attempt to purchase a Microphone PVMTM480 and to view the information on the Website, the Plaintiff encountered multiple access barriers that denied him a shopping experience similar to that of a sighted person and full and equal access to the goods and services offered to the public and made available to the public, the suit says. The Plaintiff has suffered and continues to suffer frustration and humiliation as a result of the discriminatory conditions present on the Defendant's Website. These discriminatory conditions continue to contribute to Plaintiff's sense of isolation and segregation, the suit asserts. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired consumers. Peavey Electronics offers audio products (musical instruments and audio equipment).[BN] The Plaintiff is represented by: Dana L. Gottlieb, Esq. Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES PLLC 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Dana@Gottlieb.legal Michael@Gottlieb.legal Jeffrey@Gottlieb.legal PROGRESS RESIDENTIAL: Faces Class Action Over Tenant Discrimination ------------------------------------------------------------------- Abriana Herron, writing for WFYI, reports that an Indianapolis resident and a fair housing organization filed a class action lawsuit against two rental companies for their alleged discriminatory tenant screening policies. Marckus Williams and the Fair Housing Center of Central Indiana (FHCCI) filed two separate lawsuits against Progress Residential and Tricon Residential. They allege the two rental companies' denial of housing to applicants with certain criminal or eviction histories disproportionately excludes Black people and women. "Being unfairly barred from housing not only challenges my identity; it underscores a broader societal issue of systemic bias," Williams said in a statement. The lawsuit against Progress Residential -- one of the nation's largest single-family rental providers -- alleges the company's screening process rejects previously incarcerated applicants without looking into personal circumstances. It further states that it affects Black applicants disproportionately because they are historically overrepresented in the criminal justice system. The complaint against Tricon Residential adds its eviction policy discriminates against Black female applicants because nationally, Black women face higher eviction filing rates. "Black women are overrepresented in eviction filings by nearly 200%," according to a press statement from FHCCI. The average yearly eviction rate in Marion County is 10.8% the highest rate of any county in Indiana, according to the Eviction Research Network's data from 2016 to 2021. Amy Nelson, with the fair housing center, said Williams ended up being homeless because he was rejected at these properties, even though his criminal record had been expunged. "Records that were not supposed to be still showing," she said. "He had paid his debt to society, had turned his life around, yet was still being punished because of that essentially bad data." Tricon Residential said in a statement that the organization "adheres to all fair housing laws and believes the allegations in this suit are baseless." "We review resident applications fairly, ethically, and objectively, employing a "blind" screening process not dissimilar from procedures used to review applicants for mortgages, apartment rentals, car leases, and credit cards," the Triton statement read. A Progress Residential spokesperson said the organization takes "these allegations seriously," and is reviewing the lawsuit's claims. "As a leading professional property manager, we are committed to promoting a fair and equitable screening process for all applicants," the spokesperson said. Progress Residential did not comment further on pending litigation. The lawsuit also calls for a reevaluation of the rental properties' housing practices "to safeguard the rights of all rental applicants." Nelson said the lawsuit is essential for changes to tenant rights in the state. "We want to work to ensure that these policies get changed so that more housing is opened up to people who absolutely have a right to it," she said. [GN] R1 RCM: District of Nevada Stays Hillbom Class Suit Until Feb. 12 ----------------------------------------------------------------- Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada stays, for all purposes until Feb. 12, 2025, the lawsuit captioned HEATHER HILLBOM, individually and on behalf of all others similarly situated, Plaintiff v. R1 RCM INC. and DIGNITY HEALTH d/b/a DIGNITY HEALTH - ST. ROSE DOMINICAN HOSPITAL, ROSE DE LIMA CAMPUS, Defendants, Case No. 2:24-cv-00664-JAD-EJY (D. Nev.). Plaintiff Heather Hillbom, by and through her counsel, and Defendants R1 RCM Inc. and Dignity Health d/b/a St. Rose Dominican Hospital, by and through their counsel, stipulate and request that the Court stay proceedings in the action pending the parties' forthcoming in-person mediation, which is scheduled for Jan. 29, 2025. On April 5, 2024, the Plaintiff filed a Class Action Complaint advancing claims arising from an alleged data security incident affecting the Defendants. The Defendants filed a Joint Motion to Dismiss Plaintiff's Class Action Complaint ("Motion") on Aug. 27, 2024. The Motion is fully briefed and is set for hearing on Dec. 3, 2024, at 2:30 p.m. Amid briefing on the Defendants' Motion, the parties began discussing the potential for mediation of the case. This matter is now scheduled to be mediated on Jan. 29, 2025, by Bruce A. Friedman (JAMS), an experienced mediator in lawsuits involving alleged data security incidents. Jan. 29, 2025, was the earliest available date that worked for Mr. Friedman, the parties, and their counsel. In an effort to conserve the resources of this Court and the parties, the parties request that this case, and all litigation deadlines, including the Court's hearing of the Defendants' Motion and disposition thereof, be temporarily stayed until after the mediation date. In connection with the temporary stay, the parties propose filing a joint status report after the mediation is complete to advise the Court on whether the mediation was successful, whether additional time is needed, and proposed next steps. Because cases of this complexity often are not resolved in a single day of mediation, the parties propose to submit this joint status report no later than Feb. 12, 2025 (i.e., 14 days from the date of mediation). The parties assert that the request to stay proceedings is made in good faith to allow them to focus their attention and resources on meaningful preparation for, and participation in, the scheduled mediation. This is the parties' first stipulation to stay proceedings, and they point out that it is not made for any improper purpose or other reason of delay. The parties, therefore, request that the Court stay all proceedings and deadlines in this case, including the hearing on and disposition of the Defendants' Motion, pending their participation in scheduled mediation, as to which they will provide an update to the Court in the form of a joint status report no later than Feb. 12, 2025. Based on the parties' stipulation and good cause appearing, the Court orders that this case is stayed for all purposes until Feb. 12, 2025. Should the parties resolve this case as a result of the currently scheduled mediation and require additional time to prepare dismissal paperwork, Judge Dorsey says they may file a stipulation to extend this stay. A full-text copy of the Court's Stipulation and Order is available at https://tinyurl.com/yz6kt7zd from PacerMonitor.com. Gustavo Ponce -- gustavo@kazlg.com -- Mona Amini -- mona@kazlg.com -- KAZEROUNI LAW GROUP, APC, in Las Vegas, NV 89113, Attorneys for the Plaintiff. Philip R. Erwin -- pre@cwlawlv.com -- CAMPBELL & WILLIAMS, in Las Vegas, Nevada 89101; Sean G. Wieber -- SWieber@winston.com -- Kevin P. Simpson -- KPSimpson@winston.com -- Amelia Garza-Mattia -- AGarzaMattia@winston.com -- WINSTON & STRAWN LLP, in Chicago, IL 60601, Attorneys for Defendants R1 RCM, Inc. and Dignity Health d/b/a St. Rose Dominican Hospital. RECKER CONSULTING: Lott's Bid to Notify Employees Under FLSA OK'd ----------------------------------------------------------------- Judge Douglas R. Cole of the U.S. District Court for the Southern District of Ohio, Western Division, issued an Opinion and Order granting the Plaintiff's motion to facilitate notice in the lawsuit entitled KIARA LOTT, et al., Plaintiffs v. RECKER CONSULTING, LLC, et al., Defendants, Case No. 1:23-cv-00489-DRC (S.D. Ohio). Plaintiff Kiara Lott moves the Court to facilitate notice under the Fair Labor Standards Act (FLSA) to a group of employees of Defendants Recker Consulting, LLC, and LYP Contact Center, LLC, who Lott says may have wage claims under the FLSA similar to hers. The Court, for the reasons discussed in this Opinion and Order, grants the motion and orders the parties to confer about the appropriate notice and consent language. Although the docket lists Kiara Lott as the Plaintiff in this FLSA action, once other similarly situated employees opt in by filing a consent, they are joined to the action as Plaintiffs. To date, six additional employees have filed such consents. Judge Cole notes that time is money--in many facets of life and particularly in this case. Lott and opt-in Plaintiffs Beyonka Hall, Cierra Jamison, Aurora Butler, Gerri Watkins, Ryan Parker, and Tynisha Alford (collectively Plaintiffs) worked as patient care associates (PCAs) for Recker either remotely or at its brick-and-mortar call centers. The Plaintiffs allege that Recker failed to pay them for time they worked logging into their computers at the beginning of the day; signing off before lunch and logging in after lunch; and signing off at the end of the day. They allege that Recker implemented a purportedly unlawful time-rounding policy--pursuant to which it rounded time records to the nearest quarter hour--that led to their alleged underpayment (i.e., never receiving payment for logging onto the computers in the morning and after lunch or for logging off before taking a lunch break and before leaving for the day). Based on this alleged underpayment, the Plaintiffs claim that Recker violated the FLSA and related Ohio laws. They also assert similar claims against LYP but covering a different time period. That is because LYP did not enter the picture until November 2022. Before then, Recker directly employed PCAs, like Lott and the other opt-in plaintiffs, to field calls from healthcare clients' patients for scheduling purposes. In November 2022, though, Recker's rebranding efforts resulted in it creating a wholly-owned subsidiary, LYP, which became the employer for these associates. So Recker is now simply "a holding company" for companies providing various internet technology services, including the healthcare telecommunications services that the PCAs now employed by LYP provide. Although Recker owns several other subsidiaries, only Recker (before November 2022) and only LYP (after November 2022) employed PCAs whose job responsibilities apparently match those of Lott and the other opt-in plaintiffs. Because the Plaintiffs treat LYP as merely a continuation of Recker despite the corporate rebrand, they also claim LYP has violated the FLSA and related Ohio laws based on the assumption that LYP uses the same patterns and practices to compensate PCAs that Recker had previously used. The Plaintiffs now seek an Order from this Court to facilitate providing notice of this FLSA lawsuit (with the option to opt in as a plaintiff) to: "All current and former Patient Care Associates who work or have worked for Defendants [(i.e., either Recker or LYP)] at any of their locations at any time during the past three years." The Defendants have opposed that request, and the matter is now fully briefed. Judge Cole finds that the Plaintiffs have shown a strong likelihood that they are similarly situated to other PCAs under the three O'Brien factors, citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009). O'Brien requires the Court to consider three factors: (1) the factual and employment settings of the individual plaintiffs, (2) the different defenses to which the plaintiffs may be subject, and (3) the degree of fairness and procedural impact of certifying the action as a collective action. Judge Cole holds that all PCAs appear to share similar factual and employment settings, there are no individualized defenses that preclude a similarly situated finding, and fairness and procedural concerns support a similarly situated finding. The Defendants' merits arguments do not preclude notice, Judge Cole holds. In sum, Judge Cole opines, whether the Plaintiffs' activities amount to compensable time and whether the Defendants' policies violate the FLSA or Ohio law pertain to the merits of the underlying dispute, not the appropriateness of initial notice. The Plaintiffs also make various notice-related requests. Specifically, they ask the Court to (1) approve their proposed Notice and Consent, (2) authorize them to send the notice to potential plaintiffs by U.S. Mail, email, and text message, (3) require the Defendants to provide them with the names and contact information for all potential plaintiffs, who worked for the Defendants in the last three years, (4) provide potential plaintiffs sixty days from the notice's mailing date to opt in, and (5) permit them to send one reminder email thirty days after the notice issues to anyone, who did not respond. Finally, in their motion, the Plaintiffs also ask the Court to appoint Sommers Schwartz, P.C., as counsel for the potential plaintiffs. The Court declines that request for the simple reason that the Court lacks power to consider it. Judge Cole says the parties should include language in their proposed notice and consent specifically informing potential plaintiffs of their right not only to opt in, but also to choose their own counsel. For these reasons, the Court grants the Plaintiff's Motion for Court Authorized Notice to Potential Opt-In Plaintiffs Pursuant to 29 U.S.C. Section 216(b). The Court orders the parties to confer about notice and consent to the potential plaintiffs and to email any agreed upon notice and consent proposal (or competing proposals) to Chambers by Nov. 20, 2024. Further, the Court orders the parties to include language about potential plaintiffs' right to choose their own counsel in the proposed notice and consent. Finally, the Court orders opt-in Plaintiffs Parker, Hall, Jamison, and Watkins to respond to the Defendants' discovery requests by Nov. 27, 2024. A full-text copy of the Court's Opinion and Order dated Nov. 6, 2024, is available at https://tinyurl.com/497v33jv from PacerMonitor.com. RENAISSANCE FMI: Crumwell Sues Over Blind-Inaccessible Website -------------------------------------------------------------- Denise Crumwell, individually and as the representative of a class of similarly situated persons v. RENAISSANCE FMI INC., Case No. 1:24-cv-08818 (S.D.N.Y., Nov. 19, 2024), is brought this civil rights action against the Defendant for their failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"). Because Defendant's interactive website, https://www.withclarity.com/, including all portions thereof or accessed thereon (collectively, the "Website" or "Defendant's Website"), is not equally accessible to blind and visually-impaired consumers, it violates the ADA. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's Website will become and remain accessible to blind and visually-impaired consumers. By failing to make its Website available in a manner compatible with computer screen reader programs, Defendant deprives blind and visually-impaired individuals the benefits of its online goods, content, and services--all benefits it affords nondisabled individuals --thereby increasing the sense of isolation and stigma among those persons that Title III was meant to redress, says the complaint. The Plaintiff is a visually-impaired and legally blind person who requires screen reading software to read website content using her computer. RENAISSANCE FMI INC., operates the With Clarity online retail store, as well as the With Clarity interactive Website and advertises, markets, and operates in the State of New York and throughout the United States.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, N.Y. 10003-2461 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: michael@gottlieb.legal jeffrey@gottlieb.legal dana@gottlieb.legal REVENTICS LLC: Fails to Safeguard Personal Info, Coleman Says ------------------------------------------------------------- MARTIN COLEMAN, ALYSSA HALASEH, and RACHEL HUNTER, on behalf of themselves and all others similarly situated v. REVENTICS, LLC and OMH HEALTHEDGE HOLDINGS INC., d/b/a OMEGA HEALTHCARE, Case No. 1:24-cv-03187 (D. Colo., Nov. 15, 2024) alleges that the Defendants failed to properly secure and safeguard personally identifiable information and protected health information. The compromised information includes first, middle and last names, addresses, dates of birth, Social Security Numbers, medical record numbers, patient account numbers, driver's license and other government ID, healthcare providers' names and addresses, health plan names and health plan ID, clinical data including diagnosis information, dates of services, treatment costs, prescription medications, numeric codes used to identify services and procedures Plaintiffs received from their healthcare providers and a brief description of these codes. While Defendants claim to have discovered the Data Breach as early as Dec. 15, 2022, the Defendants did not begin informing victims until Feb. 24, 2023, and failed to inform victims when or for how long the Data Breach occurred, the suit says. The Plaintiffs seek to hold Defendants responsible for the harms they caused and will continue to cause the Plaintiffs and, potentially, millions of other similarly situated persons in the massive and preventable cyberattack. The Plaintiffs further seek to hold the Defendants responsible for not ensuring that the PHI/PII was maintained in a manner consistent with industry standards, the Health Insurance Portability and Accountability Act of 1996 Privacy Rule, the HIPAA Security Rule, and other relevant standards. As a result of the Data Breach, the Plaintiffs and Class Members have suffered ascertainable losses in the form of identity theft, unauthorized charges on their various cards and accounts, fraudulent tax returns filed under their names, the loss of the benefit of their bargain, the value of their time reasonably incurred to remedy or mitigate the effects of the attack, and the deprivation of their opportunity to take preventative action against identity theft and fraud, the suit asserts. Plaintiff Coleman is an adult individual and a resident and citizen of Colorado, residing in Littleton, Colorado. Reventics provides software and support to improve clinical documentation and revenue cycle management.[BN] The Plaintiffs are represented by: Scott Edward Cole, Esq. COLE & VAN NOTE 555 12th Street, Suite 2100 Oakland, CA 94607 Telephone: (510) 891-9800 E-mail: sec@colevannote.com - and - Amber L. Schubert, Esq. SCHUBERT JONCKHEER & KOLBE LLP 2001 Union St., Suite 200 San Francisco, CA 94123 Telephone: (415) 788-4220 E-mail: aschubert@sjk.law REVLON CONSUMER: Delacruz Sues Over Blind-Inaccessible Website -------------------------------------------------------------- Emanuel Delacruz, on behalf of himself and all other persons similarly situated v. REVLON CONSUMER PRODUCTS LLC, Case No. 1:24-cv-08864 (S.D.N.Y., Nov. 20, 2024), is brought against the Defendant for its failure to design, construct, maintain, and operate its interactive website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"). Because Defendant's interactive website, website, https://www.americancrew.com, including all portions thereof or accessed thereon (collectively, the "Website" or "Defendant's Website"), is not equally accessible to blind and visually-impaired consumers, it violates the ADA. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. By failing to make its Website available in a manner compatible with computer screen reader programs, Defendant deprives blind and visually-impaired individuals the benefits of its online goods, content, and services--all benefits it affords nondisabled individuals --thereby increasing the sense of isolation and stigma among those persons that Title III was meant to redress, says the complaint. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. REVLON CONSUMER PRODUCTS LLC, operates the American Crew online retail store, as well as the American Crew interactive Website and advertises, markets, and operates in the State of New York and throughout the United States.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Dana L. Gottlieb, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES PLLC 150 East 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: Michael@Gottlieb.legal Danalgottlieb@aol.com Jeffrey@gottlieb.legal RITE AID: Member Cases in Acetaminophen MDL Terminated ------------------------------------------------------ Judge Denise Cote of the United States District Court for the Southern District of New York granted Rite Aid Corp.'s request to administratively terminate the following member cases in the MDL captioned IN RE: Acetaminophen - ASD-ADHD Products Liability Litigation: 22md30343(DLC) 23cv8449 (DLC) 23cv7220 (DLC) 23cv6580 (DLC) 23cv6333 (DLC) 23cv6321 (DLC) 23cv5689 (DLC) 23cv5687 (DLC) 23cv5686 (DLC) 23cv5655 (DLC) 23cv5649 (DLC) 23cv4725 (DLC) 22cv9878 (DLC) 22cv9285 (DLC) 22cv9072 (DLC) 22cv9056 (DLC) 22cv9041 (DLC) 22cv8818 (DLC) 22cv8816 (DLC) On October 15, 2023, Rite Aid Corporation and certain of its affiliates and subsidiaries filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. Secs. 101-1532, commencing cases in the United States Bankruptcy Court of the District of New Jersey that were jointly administered under the lead case In re Rite Aid Corp. No. 23-18993 (MBK). Pursuant to 11 U.S.C. Sec. 362, member cases in this MDL litigation in which Ride Aid was a named defendant were automatically stayed during the pendency of the Chapter 11 Cases. On November 21, 2023, this Court granted plaintiffs’ motion to sever Rite Aid from all member cases where it is not the only named defendant, including in the above-captioned member cases. Accordingly, those member cases proceeded against non-debtor defendants only. Between October 22 and October 29, 2024, Rite Aid filed a series of notices of permanent injunction and discharge, explaining that its approved Plan of Reorganization went into effect on August 30, and that as of that date the automatic stay was replaced by a discharge injunction in accordance with 11 U.S.C. Sec. 534(a) (2). Rite Aid requested that this Court administratively terminate the member cases captioned above as to the reorganized Rite Aid Corporation and certain affiliates and subsidiaries. On November 13, plaintiffs submitted a letter explaining that they do not oppose Rite Aid's request. A copy of the Court's decision is available at https://urlcurt.com/u?l=PG5cbI About Rite Aid Corp. Rite Aid -- http://www.riteaid.com-- is a full-service pharmacy that improves health outcomes. Rite Aid is defining the modern pharmacy by meeting customer needs with a wide range of vehicles that offer convenience, including retail and delivery pharmacy, as well as services offered through our wholly owned subsidiaries, Elixir, Bartell Drugs and Health Dialog. Elixir, Rite Aid's pharmacy benefits and services company, consists of accredited mail and specialty pharmacies, prescription discount programs and an industry leading adjudication platform to offer superior member experience and cost savings. Health Dialog provides healthcare coaching and disease management services via live online and phone health services. Regional chain Bartell Drugs has supported the health and wellness needs in the Seattle area for more than 130 years. Rite Aid employs more than 6,100 pharmacists and operates more than 2,100 retail pharmacy locations across 17 states. The Debtors sought protection under Chapter 11 of the Bankruptcy Code (Bankr. D.N.J. Lead Case No. 23-18993) on Oct. 15, 2023. In the petition signed by Jeffrey S. Stein, chief executive officer and chief restructuring officer, Rite Aid disclosed $7,650,418,000 in total assets and $8,597,866,000 in total liabilities. Judge Michael B. Kaplan oversees the cases. The Debtors tapped Kirkland & Ellis LLP and Kirkland & Ellis International LLP as general bankruptcy counsel, Cole Schotz, P.C., as local bankruptcy counsel, Guggenheim Partners as investment banker, Alvarez & Marsal North America, LLC as financial, tax and restructuring advisor, and Kroll Restructuring Administration as claims and noticing agent. * * * On October 16, 2023, the Debtors filed their Joint Plan of Reorganization and the Disclosure Statement related thereto. The Bankruptcy Court's hearing to consider conditional approval of the adequacy of the Disclosure Statement was held on March 28, 2024, at 11:00 a.m., prevailing Eastern Time, before the Honorable Chief Judge Michael B. Kaplan. On March 28, 2024, the Bankruptcy Court entered an order conditionally approving the adequacy of the Disclosure Statement. The Bankruptcy Court's combined hearing to consider confirmation of the Plan and final approval of the Disclosure Statement was held June 27, 2024, at 10:00 a.m., prevailing Eastern Time. On August 16, 2024, the Bankruptcy Court entered an order approving the Disclosure Statement on final basis and confirming the Plan. On August 30, 2024, the Effective Date of the Plan occurred and the Plan was consummated. RITE AID: Seeks to Terminate Members Cases in Acetaminophen MDL --------------------------------------------------------------- Rite Aid Corp requested that the United States District Court for the Southern District of New York terminate member cases in the MDL litigation IN RE: Acetaminophen —- ASD-ADHD: Products Liability Litigation. These member cases include: 23cv7220 (DLC) 23cv6580 (DLC) 23cv6333 (DLC) 23cv6321 (DLC) 23cv5689 (DLC) 23cv5687 (DLC) 23cv5686 (DLC) 23cv5655 (DLC) 23cv5649 (DLC) 23cv4725 (DLC) 22cv9878 (DLC) 22cv9285 (DLC) 22cv9072 (DLC) 22cv9056 (DLC) 22cv9041 (DLC) 22cv8818 (DLC) 22cv8816 (DLC) On October 15, 2023, Rite Aid Corporation and certain of its affiliates and subsidiaries filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. Secs. 101-1532, commencing cases in the United States Bankruptcy Court of the District of New Jersey that were jointly administered under the lead case In re Rite Aid Corp. No. 23-18993 (MBK). Pursuant to 11 U.S.C. Sec. 362, member cases in the MDL litigation IN RE: Acetaminophen —- ASD-ADHD: Products Liability Litigation in which Ride Aid was a named defendant were automatically stayed during the pendency of the Chapter 11 Cases. On November 21, 2023, the United States District Court for the Southern District of New York granted plaintiffs' motion to sever Rite Aid from all member cases where it is not the only named defendant. Accordingly, those member cases proceeded against non-debtor defendants only. A December 18, 2023 Opinion and Order granted the defendants' Rule 702 motions to exclude the general causation testimony of five proffered experts. On February 21, 2024, summary judgment was entered for defendants in the member cases to which the Court's December 18, 2023 Opinion and Order applied. Plaintiffs have appealed from the Court's entry of final judgment, as well as from the Court's December 18, 2023 Rule 702 Opinion and Order. Between October 22 and October 29, 2024, Rite Aid filed a series of notices of permanent injunction and discharge, explaining that its approved Plan of Reorganization went into effect on August 30, and that as of that date the automatic stay was replaced by a discharge injunction in accordance with 11 U.S.C. Sec. 534(a) (2). Rite Aid requested that the Court administratively terminate the member cases as to the reorganized Rite Aid Corporation and certain affiliates and subsidiaries. About Rite Aid Corp. Rite Aid -- http://www.riteaid.com-- is a full-service pharmacy that improves health outcomes. Rite Aid is defining the modern pharmacy by meeting customer needs with a wide range of vehicles that offer convenience, including retail and delivery pharmacy, as well as services offered through our wholly owned subsidiaries, Elixir, Bartell Drugs and Health Dialog. Elixir, Rite Aid's pharmacy benefits and services company, consists of accredited mail and specialty pharmacies, prescription discount programs and an industry leading adjudication platform to offer superior member experience and cost savings. Health Dialog provides healthcare coaching and disease management services via live online and phone health services. Regional chain Bartell Drugs has supported the health and wellness needs in the Seattle area for more than 130 years. Rite Aid employs more than 6,100 pharmacists and operates more than 2,100 retail pharmacy locations across 17 states. The Debtors sought protection under Chapter 11 of the Bankruptcy Code (Bankr. D.N.J. Lead Case No. 23-18993) on Oct. 15, 2023. In the petition signed by Jeffrey S. Stein, chief executive officer and chief restructuring officer, Rite Aid disclosed $7,650,418,000 in total assets and $8,597,866,000 in total liabilities. Judge Michael B. Kaplan oversees the cases. The Debtors tapped Kirkland & Ellis LLP and Kirkland & Ellis International LLP as general bankruptcy counsel, Cole Schotz, P.C., as local bankruptcy counsel, Guggenheim Partners as investment banker, Alvarez & Marsal North America, LLC as financial, tax and restructuring advisor, and Kroll Restructuring Administration as claims and noticing agent. RRCA ACCOUNTS: Fails to Secure Customers' Info, Whitlock Says ------------------------------------------------------------- DEBRA WHITLOCK, on behalf of herself and all others similarly situated v. RRCA ACCOUNTS MANAGEMENT, INC., Case No. 1:24-cv-11869 (N.D. Ill., Nov. 18, 2024) alleges that the Defendant failed to properly secure and safeguard the Plaintiff's and other similarly situated RRCA customers personally identifiable information and protected health information from criminal hackers. On Oct. 18, 2024, RRCA sent out data breach letters to individuals whose information was compromised as a result of the hacking incident. According to Defendant's Notice, it learned of unauthorized access to its computer systems on Aug. 20, 2024, with such unauthorized access having taken place on June 6, 2024. Through the Data Breach, the unauthorized cybercriminal(s) with Play accessed a cache of highly sensitive Private Information, including names, Social Security numbers, drivers' license numbers, passport numbers, health insurance numbers, protected health data such as billing and insurance claims, and payment card and account numbers, the Plaintiff avers. Therefore, the Plaintiff and Class Members have suffered and are at an imminent, immediate, and continuing increased risk of suffering, ascertainable losses in the form of harm from identity theft and other fraudulent misuse of their Private Information, the loss of the benefit of their bargain, out-of-pocket expenses incurred to remedy or mitigate the effects of the Data Breach, and the value of their time reasonably incurred to remedy or mitigate the effects of the Data Breach. Accordingly, the Plaintiff, on behalf of herself and the Class, assert claims for negligence, negligence per se, breach of third party beneficiary contract, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, et seq, unjust enrichment, and declaratory judgment. Plaintiff Whitlock is a patient of CGH Medical Center, a customer of the Defendant who had her Private Information provided to the Defendant as a condition of receiving collection agency services on behalf of CGH Medical Center. RRCA is a full-service collection agency that serves businesses along Lincoln Highway in Dekalb, Illinois and Clinton, Iowa.[BN] The Plaintiff is represented by: Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 745 Fifth Avenue, Suite 500 New York, NY 10151 Telephone: (212) 532-1091 E-mail: mbarney@sirillp.com tbean@sirillp.com SAINT FRANCIS: Faces Class Action Suit Over Unpaid Overtime ------------------------------------------------------------ Erin Christy, writing for 2 News Oklahoma, reports that 1,317 former and current employees of Saint Francis Health System claim, in a collective/class-action lawsuit, that the hospital knowingly and deliberately broke the law through unpaid overtime and illegal rounding policies. Federal law allows an employer to round time to the nearest quarter hour. This is how it works: For example, if an employee clocks in at 6:38, the time would be rounded up to 6:45. The employee would not be paid for seven minutes of work. However, if the employee clocks in at 6:47, the time would be rounded down to 6:45. The employee would be paid for two extra minutes. While law allows the practice, the Fair Labor Standards Act specifies that it must be done "neutrally," says Oklahoma Department of Labor General Counsel Don Schooler. He did not wish to discuss this specific case, but spoke to 2 News about rounding practices. "If you round it sometimes in favor of the employer and sometimes in favor over time, it is going to balance out," School said on the general idea of rounding. However, if an employer is solely, consistently favoring the company, then rounding is not done "neutrally," and that is illegal, said Schooler. The lawsuit cites St. Francis policies as stating that employees may clock in up to seven minutes early (which disadvantages the employee) but that they are subject to discipline should they clock in eight minutes early (which would disadvantage St. Francis). The suit states that employees are subject to discipline should they clock in even one minute after the shift starts. Schooler says what amounts to nickel-and-diming employees is a reckless practice, and while rare, improper use is potentially criminal. "I think it would take an instance where it was a systemic situation where an employer is consistently abusing, and knowingly abusing, their employees for a DA to get involved in that," he said. This is not the first claim of illegal pay practice against St. Francis in recent years. In 2022, hundreds of employees allege in a lawsuit that St. Francis illegally docked their lunch hour pay while still making them work through the lunch hour. That case was dismissed in October of 2024 but details on why were unavailable. Schooler suggests employees contact the Oklahoma Department of Labor if they believe they may be victims of improper pay practices. A spokesperson for St. Francis says they cannot comment on the litigation but are contesting the claims. [GN] SAN FRANCISCO: Property Violates Disabilities Act, Pardo Alleges ---------------------------------------------------------------- NIGEL FRANK DE LA TORRE PARDO v. SAN FRANCISCO EL DORADO, INC.; and ATLACATL RESTAURANT SALVADORENO, INC. d/b/a EL ATLACATL RESTAURANT, Case No. 1:24-cv-24531 (S.D. Fla., Nov. 15, 2024) is a class action alleging that the Defendants have discriminated against the individual Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages and/or accommodations of the Commercial Property and business located in it. The individual Plaintiff visits the Commercial Property and businesses located within the commercial property, to include visits on Aug. 20, 2024, and encountered architectural barriers that are in violation of the ADA. The barriers to access at the Commercial Property, and businesses within, have each denied or diminished Plaintiff's ability to visit the Commercial Property and have endangered his safety in violation of the Americans with Disabilities Act, the lawsuit contends. The Plaintiff seeks injunctive relief, attorneys' fees, litigation expenses, and costs pursuant to ADA. The Plaintiff has lower paraplegia, inhibits him from walking or otherwise ambulating without the use of a wheelchair. He is limited in his major life activities by such, including walking, standing, grabbing, grasping and/or pinching. San Francisco El Dorado owns, operates, and oversees the Commercial Property, its general parking lot and parking spots specific to the businesses therein, located in Miami Dade County, Florida.[BN] The Plaintiff is represented by: Beverly Virues, Esq. Armando Mejias, Esq. GARCIA-MENOCAL, P.L. 350 Sevilla Avenue, Suite 200 Coral Gables, Fl 33134 Telephone: (305) 553-3464 E-mail: bvirues@lawgmp.com amejias@lawgmp.com jacosta@lawgmp.com aquezada@lawgmp.com - and - Ramon J. Diego, Esq. THE LAW OFFICE OF RAMON J. DIEGO, P.A. 5001 SW 74th Court, Suite 103 Miami, FL, 33155 Telephone: (305) 350-3103 E-mail: rdiego@lawgmp.com ramon@rjdiegolaw.com SANDOZ INC: Court Narrows Claims in Price-Fixing MDL ---------------------------------------------------- Judge Michael P. Shea of the United States District Court for the District of Connecticut granted in part and denied in part the defendants' motion dismiss state-law claims in the case captioned as THE STATE OF CONNECTICUT; THE STATE OF ALASKA; THE STATE OF ARIZONA; THE STATE OF ARKANSAS; THE STATE OF CALIFORNIA; THE STATE OF COLORADO; THE STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; THE STATE OF FLORIDA; THE STATE OF GEORGIA; THE TERRITORY OF GUAM; THE STATE OF HAWAII; THE STATE OF IDAHO; THE STATE OF ILLINOIS; THE STATE OF INDIANA; THE STATE OF IOWA; THE STATE OF KANSAS; THE COMMONWEALTH OF KENTUCKY; THE STATE OF LOUISIANA; THE STATE OF MAINE; THE STATE OF MARYLAND; THE COMMONWEALTH OF MASSACHUSETTS; THE STATE OF MICHIGAN; THE STATE OF MINNESOTA; THE STATE OF MISSISSIPPI; THE STATE OF MISSOURI; THE STATE OF MONTANA; THE STATE OF NEBRASKA; THE STATE OF NEVADA; THE STATE OF NEW HAMPSHIRE; THE STATE OF NEW JERSEY; THE STATE OF NEW MEXICO; THE STATE OF NEW YORK; THE STATE OF NORTH CAROLINA; THE STATE OF NORTH DAKOTA; THE COMMONWEALTH OF THE NORTHERN MARIANA ISLAND; THE STATE OF OHIO; THE STATE OF OKLAHOMA; THE STATE OF OREGON; THE COMMONWEALTH OF PENNSYLVANIA; THE COMMONWEALTH OF PUERTO RICO; THE STATE OF RHODE ISLAND; THE STATE OF SOUTH CAROLINA; THE STATE OF TENNESSEE; THE STATE OF UTAH; THE STATE OF VERMONT; THE COMMONWEALTH OF VIRGINIA; THE STATE OF WASHINGTON; THE STATE OF WEST VIRGINIA; THE STATE OF WISCONSIN; and U.S. VIRGIN ISLANDS v. SANDOZ, INC.; ACTAVIS HOLDCO US, INC.; ACTAVIS ELIZABETH LLC; ACTAVIS PHARMA, INC.; AMNEAL PHARMACEUTICALS, INC.; AMNEAL PHARMACEUTICALS, LLC; ARA APRAHAMIAN; AUROBINDO PHARMA U.S.A., INC.; BAUSCH HEALTH AMERICAS, INC.; BAUSCH HEALTH US, LLC; MITCHELL BLASHINSKY; DOUGLAS BOOTHE; FOUGERA PHARMACEUTICALS INC.; GLENMARK PHARMACEUTICALS INC., USA; JAMES (JIM) GRAUSO; GREENSTONE LLC; G&W LABORATORIES, INC.; WALTER KACZMAREK; ARMANDO KELLUM; LANNETT COMPANY, INC.; LUPIN PHARMACEUTICALS, INC.; MALLINCKRODT INC.; MALLINCKRODT LLC; MALLINCKRODT plc; MYLAN INC.; MYLAN PHARMACEUTICALS INC.; KURT ORLOFSKI; MICHAEL PERFETTO; PERRIGO NEW YORK, INC.; PFIZER INC.; SUN PHARMACEUTICAL INDUSTRIES, INC.; TARO PHARMACEUTICALS USA, INC.; TELIGENT, INC.; ERIKA VOGEL-BAYLOR; JOHN WESOLOWSKI; and WOCKHARDT USA LLC, Case No. 3:20-cv-00820 (MPS) (D. Conn.). The Defendants, thirty-six makers of generic drugs, have moved under Fed. R. Civ. P. 12(b)(6) to dismiss state-law claims asserted by the Plaintiffs, the Attorneys General of most of the States and certain U.S. Territories, in this sprawling action alleging price-fixing, market allocation, and bid rigging in the sale of generic drugs for skin ailments. This is one of three cases in which the Attorneys General of the States and territories have sued scores of generic drug makers for alleged antitrust violations and unfair trade practices. All three cases were originally filed in the United States District Court for the District of Connecticut but were transferred to the Eastern District of Pennsylvania, which was designated by the Judicial Panel on Multi-district Litigation to preside over these and other similar cases brought by private parties in a consolidated proceeding. In April, the JPMDL remanded these three cases to the United States District Court for the District of Connecticut, and they were assigned to Judge Shea. The operative complaint in this case, the September 9, 2021 amended complaint spans 609 pages and includes 2,123 numbered paragraphs. It alleges collusion in the pricing, market allocation, and bidding for generic drugs for dermatological applications. The complaint describes a series of conspiracies, and an overarching conspiracy, between makers of generic dermatological drug-related products to collude on price, market allocation, and bids for the business of customers. The Court denied the motion to dismiss Alabama's and Louisiana's state-law claims as moot. After the Defendants filed the motion to dismiss, Louisiana and Alabama voluntarily dismissed their claims. Alaska and California The Defendants argue that the Alaska Superior Court has exclusive jurisdiction over claims under Alaska antitrust and consumer protection statutes, Alaska Stat. Secs. 45.50.582 & 45.50.501(a). The motion to dismiss as to Alaska and California is denied. Colorado The Defendants move to dismiss Colorado's claim for actual or treble damages under the Colorado Consumer Protection Act, Colo. Rev. Stat. Sec. 6-1-113, because that statute does not authorize Colorado to recover damages on behalf of itself, state agencies, or consumers. The motion to dismiss as to Colorado is denied as moot. Connecticut The Defendants move to dismiss Connecticut's claim for damages under Conn. Gen. Stat. Sec. 35-32(c)(2) because those damages are "duplicative of" parens patriae claims on behalf of state citizens. The motion to dismiss is denied because the Defendants' argument relating to the "potentially duplicative nature of the damages and injuries pleaded" is premature at the pleadings stage of this litigation. Delaware The Defendants seek to dismiss claims for monetary recovery under the Delaware Antitrust Act, Del. Code tit. 6, Sec. 2101 et. seq, on behalf of "indirect" purchasers brought by the State of Delaware because they are precluded by the U.S. Supreme Court's decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). ECF No. 367 at 37. The motion to dismiss is denied. Florida The Defendants argue that Florida may not seek relief based on indirect purchases under its state antitrust statute, Florida Antitrust Act, Section 542.18. The motion to dismiss is denied. Indiana The Defendants move to dismiss Indiana's parens patriae damages claim under its consumer protection statute, its indirect purchaser claims other than those brought on behalf of governmental entities, and its claim under its consumer protection statute. The motion is granted in part and denied in part. Kentucky The Defendants move to dismiss Kentucky's claims for restitution and disgorgement under its consumer protection statute, Ky. Stat. Ann. Sec. 367.200, arguing that Kentucky is not entitled to seek such relief under state law on behalf of indirect purchasers. Because Kentucky's claims for restitution and disgorgement are not clearly foreclosed under state law, the motion to dismiss is denied. Maine The parties dispute whether Maine has the authority to seek monetary relief for alleged antitrust violations as parens patriae. Because Maine's claim for damages is not clearly barred under state law, Judge Shea declines to dismiss it at this stage of the proceedings. Michigan The Defendants argue that Michigan has failed to state a claim under the Michigan Consumer Protection Act, Mich. Comp. Laws Sec. 445.901, et seq. ECF No. 367 at 46. Judge Shea denes without prejudice the Defendants' motion to dismiss Michigan's claims Mississippi Mississippi seeks "relief, including but not limited to injunctive relief, damages, restitution, disgorgement, civil penalties, costs, [and] attorney fees" under the Mississippi Antitrust Act, Miss. Code Ann. Sec. 75-21-1, et seq., and the Mississippi Consumer Protection Act, Miss. Code Ann. Sec. 75-24-1, et seq. Judge Shea denies the Defendants' motion to dismiss Mississippi's state-law claims. Missouri Missouri seeks "an injunction, disgorgement, civil penalties and any other relief available" under the Missouri Antitrust Law, Missouri Rev. Stat. Secs. 416.011, et seq., and Missouri's Merchandising Practices Act, Missouri Rev. Stat. Secs. 407.010, et seq. Judge Shea grants the Defendants' motion to dismiss Missouri's claim for parens patriae damages under the MMPA but deny it as to the State's claims for disgorgement and its claim for restitution on behalf of indirect purchasers under the MMPA. Nevada The Defendants seek to dismiss Nevada's claims for monetary recovery under the State's consumer protection statute, the Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. Sec. 598.0903, et seq. Judge Shea denies the Defendants' motion to dismiss Nevada's state-law claims. New Jersey The Defendants seek to dismiss New Jersey's claims for disgorgement under the New Jersey Antitrust Act, N.J.S.A. 56:9-1, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. Judge Shea dismisses New Jersey's claims for disgorgement under both the NJATA and the NJCFA. New Mexico The Defendants contend that New Mexico may not seek parens patriae damages on behalf of injured persons under the New Mexico Antitrust Act, N.M. Stat. Ann. Sec. 57-1-1, et seq. Judge Shea denies the Defendants' motion to dismiss as to New Mexico's claims for civil penalties under the NMUPA but grant it to the extent that New Mexico seeks monetary recovery other than restitution and civil penalties under that statute. She also grants the Defendants' motion to dismiss as to New Mexico's claim for parens patriae damages under the NMATA. New York New York "seeks relief, including but not limited to damages, for New York consumers and New York state entities that paid for one or more of the drugs identified in [the operative complaint]" under New York Executive Law § 63(12) and the Donnelly Act, New York Gen. Bus. Law Secs. 340-342c. Judge Shea denies the Defendants' motion to dismiss New York's claims under Sec. 63 of the Executive Law. North Carolina The Defendants contend that North Carolina is seeking damages on behalf of North Carolina citizens and that such relief is not authorized by law. But because North Carolina has not defended its claim for damages, and because the Defendants' motion does not address the forms of relief that North Carolina does request, Judge Shea declines to evaluate any other aspects of the Defendants' arguments with respect to North Carolina. Ohio Ohio seeks "an injunction, disgorgement and civil forfeiture pursuant to Ohio Rev. Code Sec. 109.81 and Ohio Rev. Code Secs. 1331.01 et seq." The Defendants' motion to dismiss Ohio's claims is denied. Oklahoma The Defendants seek to dismiss Oklahoma's claims for disgorgement and other monetary equitable relief, its indirect purchaser claims, and its claims asserted under the Oklahoma Antitrust Reform Act. The motion to dismiss Oklahoma's claims is denied. Pennsylvania Pennsylvania alleges that the Defendants' conduct violates the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Secs. 201 et seq. The motion to dismiss Pennsylvania's state-law claims is granted in part and denied in part. Puerto Rico Puerto Rico alleges that the Defendants' conduct violates the Puerto Rico Antitrust Act, 10 P.R. Laws Ann. Secs. 257 et seq. The motion to dismiss Puerto Rico's antitrust claims for damages on behalf of indirect purchasers is granted. Rhode Island Rhode Island seeks all remedies available under the Rhode Island Antitrust Act, R.I. Gen. Laws Sec. 6-36-1 et seq., including disgorgement, injunctive relief, civil penalties, costs, and attorney's fees. The motion to dismiss Rhode Island's state-law claims is granted in part and denied in part. Virgin Islands The U.S. Virgin Islands seeks injunctive relief and civil penalties under both the Virgin Islands Antimonopoly Law, 11 V.I.C. Sec. 1501 et seq. ("the antitrust act"), and Consumer Fraud and Deceptive Business Practices Act, 12A V.I.C. Sec. 301 et seq. ("the consumer protection act"). The motion to dismiss the Virgin Islands' claims under the antitrust act is denied. The motion to dismiss the Virgin Islands' claims under the consumer protection act is denied. Virginia Defendants seek to dismiss "Virginia's indirect purchaser claims under the Virginia Antitrust Act." The Defendants' motion to dismiss Virginia's claims is denied. Washington Under the Washington Consumer Protection Act, Wash. Rev. Code Sec. 19.86.010 et seq., Washington seeks "relief, including but not limited to damages, for Washington consumers and Washington state agencies," as well as injunctive relief, equitable relief (including disgorgement), civil penalties, costs, and fees. The Defendants seek to dismiss Washington's claims for damages as parens patriae on behalf of persons residing in the state. The motion to dismiss Washington's state-law claims is granted in part and denied in part. A copy of the Court's decision is available at https://urlcurt.com/u?l=X1Z6qa SEEMPLICITY SECURITY: Court Narrows Claims in Koeller Lawsuit ------------------------------------------------------------- Chief Judge Stephen R. Clark of the United States District Court for the Eastern District of Missouri denied in part and granted in part the motion filed by Seemplicity Security Inc. to dismiss the plaintiff's first amended complaint in the case captioned as EDWARD J. KOELLER, Plaintiff, v. SEEMPLICITY SECURITY INC., Defendant, Case No. 4:24-cv-00528-SRC (E.D. Mo.). Koeller raises a TCPA claim alleging that Seemplicity violated 47 C.F.R. Sec. 64.1200(c)(2). In addition to seeking statutory damages for this alleged violation, Koeller asks the Court to treble his statutory damages and issue an injunction. Seemplicity moves to dismiss the TCPA claim and Koeller's prayer for treble damages and an injunction. The Court considers whether it should dismiss (i) the TCPA claim, (ii) Koeller's prayer for treble damages, and (iii) Koeller's prayer for an injunction. Seemplicity argues that the Court should dismiss Koeller's TCPA claim because, when pleading that his cell phone is a residential telephone, Koeller alleges only conclusory statements that do not constitute factual allegations. The Court finds that Koeller sufficiently pleaded that he received two calls from Seemplicity within a 12-month period even though he had listed his number on the national do-not-call list. Thus, the Court holds that Koeller sufficiently pleaded a TCPA claim. Koeller insufficiently pleaded that Seemplicity willfully or knowingly violated section 64.1200(c)(2) and that, as a result, the Court must dismiss Koeller's request for treble damages. Seemplicity argues that, under Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss Koeller's request for an injunction because Koeller failed to plead sufficient facts to establish Article III standing. Koeller states that he "does not dispute dismissing any claims for injunctive relief at this stage." Accordingly, the Court dismisses Koeller's request for an injunction. Koeller also claims that Seemplicity violated the Missouri do-not-call list statute, Missouri Revised Statute Sec. 407.1098. Seemplicity moves to dismiss Koeller's Missouri do-not-call list claim, arguing that Koeller failed to plead sufficient facts to demonstrate that (1) the phone number is residential, (2) Koeller provided notice to the attorney general, and (3) Seemplicity knowingly violated section 407.1098. Because Koeller has not sufficiently pleaded a knowing violation of section 407.1098 and has agreed to dismiss his claim for injunctive relief, the Court dismisses Koeller's Missouri do-not-call list claim. A copy of the Court's Order is available at https://urlcurt.com/u?l=xypkVI SEPHORA USA: Court Upholds Dismissal of Espinal Lawsuit ------------------------------------------------------- Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York denied Sephora USA, Inc.'s motion for reconsideration and motion for certification of interlocutory appeal of the order that denied its motion to dismiss the case captioned as ROSALBA ESPINAL et al., Plaintiffs, -v- SEPHORA USA, INC., Defendant, Case No. 22 Civ. 3034 (PAE) (GWG) (S.D.N.Y.). In brief, plaintiffs Rosalba Espinal and Juan Rivera sued their former employer, Sephora, alleging that Sephora's practice of paying employees on a biweekly basis violates the requirement of NYLL Sec. 191(1)(a)(i) that manual workers be paid weekly. On February 15, 2024, Sephora moved to dismiss, arguing that there is neither an express nor an implied private right of action for such violations of Sec. 191. On July 31, 2024, United States Magistrate Judge Gabriel W. Gorenstein issued a Report and Recommendation reaching that conclusion and recommending dismissal. In its September 19, 2024 decision, the Court declined to adopt that recommendation and, joining the weight of district court authority on the issue, found that NYLL Sec. 191 expressly and impliedly gives rise to a private right of action for such claims. On September 30, 2024, Sephora filed the instant motions for reconsideration and for certification of an interlocutory appeal. On October 15, 2024, plaintiffs opposed. The standard governing motions for reconsideration under Federal Rule of Civil Procedure 60(b) "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Such a motion "is neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have been previously advanced." Rather, reconsideration is appropriate "only when the [moving party] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." The Court finds Sephora has not met this high bar. Judge Engelmayer explains, "It does not bring to bear any new arguments on the purely legal issue on which the Court's resolution of the motion to dismiss turned. Its sole argument is that this Court erroneously applied de nova review as opposed to clear error review. Its basis for so arguing is that, before this Court, plaintiffs "simply reiterate[ d]" the arguments they had made before Judge Gorenstein, thus calling for clear error review." Sephora alternatively moves to certify to the Second Circuit the question whether a private right of action to sue for liquidated damages is available under the frequency-of-payments provision of the NYLL. Section 1292(b) "permits a district court, in its discretion, to certify an interlocutory appeal where the decision at issue (1) involves a controlling question of law (2) as to which there is substantial ground for a difference of opinion and (3) as to which an immediate appeal may materially advance the ultimate termination of the litigation." Where a movant fails to satisfy any one of the three statutory criteria, the court may not certify the appeal. According to the Court, the first element favors Sephora: whether the NYLL gives rise to a private right of action against an employer who pays employees less frequently than weekly presents a controlling question of law. But Sephora fares less well on the second and third elements, the Court finds. Addressing the third element first, certification of the issue would not materially advance the termination of this litigation, the Court says. Although Sephora's failure to establish the third element requires denial of its motion, the Court is also unable to find for it on the second element: that there is substantial ground for difference of opinion. A copy of the Court's Opinion & Order is available at https://urlcurt.com/u?l=QaGkyA SET FORTH: Fails to Secure Customers' Personal Info, Anderson Says ------------------------------------------------------------------ MARTIN ANDERSON, individually and on behalf of those similarly situated v. SET FORTH, INC. and CENTREX SOFTWARE, INC., Case No. 1:24-cv-11788 (N.D. Ill., Nov. 15, 2024) sues the Defendants for failure to properly secure and safeguard Plaintiff's and Class Members' protected personally identifiable information stored within the Defendants' information network. The suit alleges that Defendants breached their duty to protect the sensitive PII entrusted to it. As such, the Plaintiff brings this Class action on behalf of himself and the over 1,500,000 other individuals whose PII was accessed and exposed to unauthorized third parties during a data breach of Defendants' systems on or before May 21, 2024, which the Defendants announced publicly via letter to affected individuals on Nov. 8, 2024. A wide variety of PII was implicated in the breach, including names, mailing address, telephone number, and social security number. As a direct and proximate result of the Defendants' inadequate data security, and its breach of its duty to handle PII with reasonable care, the Plaintiff's PII has been accessed by hackers, posted on the dark web, and exposed to an untold number of unauthorized individuals, the lawsuit asserts. The Plaintiff is now at a significantly increased and certainly impending risk of fraud, identity theft, and similar forms of criminal mischief, and such risk may last for the rest of his life. Consequently, the Plaintiff must devote substantially more time, money, and energy to protect himself, to the extent possible, from these crimes, the lawsuit adds. Accordingly, the Plaintiff, on behalf of himself and others similarly situated, brings claims for negligence, negligence per se, breach of fiduciary duty, breach of confidences, breach of an implied contract, unjust enrichment, and declaratory judgment, seeking actual and putative damages, with attorneys' fees, costs, and expenses, and appropriate injunctive and declaratory relief. Set Forth provides cloud-based solutions to their customers.[BN] The Plaintiff is represented by: Eric Lechtzin, Esq. Marc H. Edelson, Esq. Liberato P. Verderame, Esq. EDELSON LECHTZIN LLP 411 S. State Street, Suite N300 Newtown, PA 18940 Telephone: (215) 867-2399 E-mail: electzin@edelson-law.com medelson@edelson-law.com lverderame@edelson-law.com TOWER HEALTH: Court Won't Reconsider Dismissal of Santoro's Claims ------------------------------------------------------------------ In the lawsuit styled PATRICK SANTORO, JESSICA LANDIS v. TOWER HEALTH, Case No. 5:22-cv-04580-JFM (E.D. Pa.), Judge John F. Murphy of the U.S. District Court for the Eastern District of Pennsylvania denies the Plaintiffs' motion to reconsider the dismissal of their claims. Plaintiffs Patrick Santoro and Jessica Landis claim that Defendant Tower Health used Meta Pixel software to illegally intercept and communicate their private health information for monetary gain. They assert claims against Tower Health for violation of the Electronic Communications Privacy Act (Wiretap Act), negligence, and intrusion upon seclusion. The Plaintiffs filed their initial class action complaint in this case on Nov. 16, 2022. Tower Health responded with its first motion to dismiss for failure to state a claim. Among other points, Tower Health argued that the Plaintiffs failed to allege that it acted with a criminal or tortious purpose necessary for a Wiretap Act violation. Tower Health also argued that the Plaintiffs failed to allege facts demonstrating a duty of care, and failed to provide a sufficient factual basis to conclude any alleged intrusion was highly offensive. The case is one of many questioning a hospital's use of the Meta Pixel tracking tool on its public website. But the issue before the Court now is how many chances a plaintiff gets to adequately plead its case, Judge Murphy says. Here, the Plaintiffs filed three complaints. Tower Health responded to each in turn with a motion to dismiss. Over a month after oral argument, the Court dismissed the Plaintiffs' claims with prejudice based on the insufficiency of their factual allegations. The Court concluded that after three attempts, the facts simply were not there and were not coming. The Plaintiffs now ask the Court to reconsider its decision to dismiss the claims without leave to amend. As the Court stated in its memorandum dismissing the claims, the Court recognizes that this case invokes legitimate fears about the improper sharing of medical information -- the Plaintiffs' concerns, in general, are not frivolous. But the Plaintiffs have not demonstrated that the Court ought to entertain allegations that could have been, but were not, alleged earlier, Judge Murphy opines. They wanted a resolution on the (third round of) pleadings, and that is what they got. Judge Murphy points out that the Court reaches the same result whether examining its earlier ruling for legal error or under the more liberal standard of Rule 15 of the Federal Rules of Civil Procedure. Hence, the Plaintiffs' motion to reconsider is denied. Judge Murphy opines that the Plaintiffs had three opportunities to cure defects in their complaint. They chose to stand their ground on the law; they got their answer; and justice did not require further amendment. Judge Murphy holds that denying leave to amend was not a legal error. For these reasons, the Court denies the Plaintiffs' motion for reconsideration, and their request to file the proposed third amended complaint. A full-text copy of the Court's Memorandum is available at https://tinyurl.com/mej8brhs from PacerMonitor.com. A full-text copy of the Court's Order dated Nov. 13, 2024, is available at https://tinyurl.com/yc3wen53 from PacerMonitor.com. TRACFONE WIRELESS: Fails to Secure Customers' Info, Barcomb Says ---------------------------------------------------------------- DARREN BARCOMB, DAVID SETTERS, CHARISE CARSON, JAYNAE COLE, JOSHUA DAVIS, RAVEN HARDEN, and MICHAEL BROADUS, individually and on behalf of others similarly situated v. TRACFONE WIRELESS, INC, Case No. 1:24-cv-08710 (S.D.N.Y., Nov. 15, 2024) sues TracFone for its failure to properly secure and safeguard Plaintiffs' and other similarly situated current and former TracFone customers' confidential information from hackers. On or before Dec. 2021, hackers gained access to the personally identifiable information ("PII") and customer proprietary network information ("CPNI") (collectively, "confidential information") of thousands of TracFone customers (the "Data Breach") and used that confidential information to engage in widespread "port-out fraud." The Data Breach meant that thousands of TracFone customers were without their mobile phone, unable to conduct business, and had their financial accounts compromised over the holidays, the suit says. Even though TracFone is aware of the Data Breach, it has misled customers as to the nature of the Data Breach and failed to take reasonable steps to mitigate customers' damages. In some cases, TracFone refused to take action to restore customers' phone numbers (for which customers had already paid) unless customers paid additional fees to TracFone, thereby profiting from the Data Breach and its own negligence, the suit claims. On Nov. 22, 2021, Plaintiff Barcomb paid $143.42 to TracFone for mobile phone service until March 22, 2022. On Dec. 21, 2021, Plaintiff Barcomb's TracFone account was deactivated and his mobile phone number was fraudulently ported to MetroPCS without his knowledge or permission. Shortly afterwards, hackers attempted to access his financial accounts, including Coinbase, Plaintiff Barcomb avers. Plaintiff Barcomb is a police officer and provides his own cell phone for use on the job. The Data Breach greatly disrupted his work, since his access to several applications was setup through his TracFone mobile phone number. It took him several days to resolve these issues. In an attempt to mitigate his damages, Plaintiff Barcomb says he purchased a prepaid phone from AT&T for $96.12. TracFone is an American mobile phone provider and wireless service.[BN] The Plaintiffs are represented by: Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 745 Fifth Avenue, Suite 500 New York, NY 10151 Telephone: (646) 357-1732 E-mail: mbarney@sirillp.com tbean@sirillp.com TRANSUNION LLC: Court Stays Reyes FCRA Class Action --------------------------------------------------- Judge Roy K. Altman of the United States District Court for the Southern District of Florida stayed the case captioned as MARVIN REYES, individually and on behalf of all others similarly situated, Plaintiff, v. TRANS UNION, LLC, Defendants, CASE NO. 24-cv-21045-ALTMAN (S.D. Fla.). All deadlines and hearings are terminated, and any pending motions are denied as moot. "This is a consumer class action brought for redress of violations of the Fair Credit Reporting Act . . ., by Defendants Trans Union, LLC[.]" The Plaintiff alleges that the FCRA imposes obligations on credit reporting agencies (like Trans Union) to "conduct a reasonable reinvestigation to determine whether [ ] disputed information [in a credit report] is inaccurate and record the current status of the disputed information, or delete the item from the file," and to provide notice "of the dispute to any person who provided any item of information in dispute." Trans Union, the Plaintiff contends, has shirked its responsibilities under the FCRA by failing to "reinvestigate disputed inquiries" and instead "put[ting] the onus on the customer to investigate and rectify inaccurate inquiries with the furnisher." Reyes alleges that Trans Union purposely refused to investigate in order to avoid "expend[ing] additional financial and human resources[,]", that it is willfully failing "to comply with [the] legal requirements" of the FCRA, and that there is a viable class of individuals who (like Reyes) have been harmed because of Trans Union's "standard policies and practices adopted in reckless disregard of consumers' rights under the FCRA[,]" Reyes proposes that he represent the following class: During the period beginning two years prior to the filing of this action and through the time of class certification, all persons residing in the United States and its Territories to whom Trans Union sent a letter materially identical to the letter it sent to Plaintiff. Trans Union filed a motion to dismiss or stay this case under the "first-filed rule." According to Trans Union, Reyes's case is "substantively identical" and involves "the same legal issues and substantial factual overlap" as Norman. v. Trans Union LLC, No. 2:18-cv-05225 (E.D. Pa. filed Dec. 5, 2018) pending in the Eastern District of Pennsylvania. Trans Union also avers that the district court in Norman certified a nationwide class that "overlaps" with Reyes's proposed class. Reyes responds that the "application of the first-to-file rule . . . would cause substantial prejudice to Plaintiff and the proposed class members" because the Norman Case "involves an entirely exclusive and narrowly certified class, meaning neither Plaintiff's nor the proposed class members' interest are represented or preserved in that action." In deciding whether to apply the first-to-file rule, the Court considers "(1) the chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of the issues." The Court finds the "chronology" factor weighs strongly in favor of a stay. Judge Altman explains, "Reyes hasn't shown that there's a "judicial economy" exception to the 'chronology' factor -- nor has he persuaded us that, even if there were such an exception, we should apply it in this case. The first factor thus strongly favors a stay." According to the Court, there's a substantial overlap between the proposed class and the Norman class. The second factor factor thus likewise favors a stay. The Court also finds the issues presented in the two cases "are sufficiently similar or substantially overlap." The Court notes "Each case alleges that TransUnion fails to investigate hard inquiries in violation of 15 U.S.C. Sec. 1681i," and the allegations in Reyes's Amended Complaint "are drawn almost entirely from the Norman Complaint." All three factors, in sum, weigh heavily in favor of the application of the first-filed rule, the Court concludes. The case is stayed and administratively closed pending a final judgment in the Norman case. Judge Altman says, "Trans Union asks us to dismiss this case. But we think a stay is more appropriate because: (1) there may be some potential class members who might not be covered by the class in the Norman Case; and (2) the Norman Case is set for trial and should be resolved in a matter of months. Once the Norman Case has been resolved, we'll be in a better position to decide whether there's anything left to adjudicate here." A copy of the Court's Order is available at https://urlcurt.com/u?l=6zHd8p TULARE COUNTY, CA: Faces Villasenor Suit Over Sexual Discrimination ------------------------------------------------------------------- JOSE VILLASENOR; CLAUDIA RIVERA; RUTHIMAY JORDAN FRICK; VANIDEE QUINONEZ; DENISE RAMIREZ, for themselves and others similarly situated, v. THE COUNTY OF TULARE; SHERIFF MIKE BOUDREAUX; ASST. SHERIFF JOE TORRES; FORMER ASST. SHERIFF MARK GIST; CAPT. HARALD LILES; LT. JESSE COX; LT. CORY JONES; LT. BUDDY HIRAYAMA; LT. JAVIER MARTINEZ; LT. MEGAN PINHEIRO; SGT. MARCO MARTINEZ; SGT. MICHAEL MARTINS; SGT. GILBERT RODRIGUEZ; SGT. SANTOS SALGADO; UNKNOWN LAW ENFORCEMENT OFFICERS; UNKNOWN COUNTY OFFICIALS, Case No. 1:24-cv-01411-KES-SKO (E.D. Cal., Nov. 18, 2024) is class complaint for damages and equitable relief as a result of sexual discrimination violations, and for issues of public concern, including but not limited to the sexualized culture within the Tulare County Sheriff’s Office. According to the complaint, all of the Plaintiffs were retaliated against for their protected activities, including in extreme manners that remain ongoing to the present. Four, Villasenor, Rivera, Frick and Ramirez, are at risk of losing their careers and have been damaged severely emotionally and financially. Mr. Villasenor has been a sworn peace officer employed by the Tulare County Sheriff's Office (TSCO) for 14 years.[BN] The Plaintiffs are represented by: Kevin G. Little, Esq. Michelle L. Tostenrude, Esq. LAW OFFICE OF KEVIN G. LITTLE Fresno, CA 93747 Telephone: (559) 342-5800 Facsimile: (559) 242-2400 E-mail: kevin@kevinglittle.com UNITED STATES: Mootness Order Upheld in Suit v. Austin, et al. -------------------------------------------------------------- Judge Tilman E. Self, III of the United States District Court for the Middle District of Georgia denied plaintiffs' motion for reconsideration in the case captioned as AIR FORCE OFFICER, AIR FORCE NCO, AIR FORCE SPECIAL AGENT, and AIR FORCE ENGINEER, on behalf of themselves and all others similarly situated, Plaintiffs, v. LLOYD J. AUSTIN, III, individually and in his official capacity as Secretary of Defense; FRANK KENDALL, III, individually and his official capacity as Secretary of the Air Force; and ROBERT I. MILLER, individually and his official capacity as Surgeon General of the Air Force, Defendants, CIVIL ACTION NO. 5:22-cv-00009-TES (M.D. Ga.). Following the Court's Memorandum Opinion and Order on Mootness, the Plaintiffs filed a Motion for Reconsideration pursuant to Local Rule 7.6 and Federal Rule of Civil Procedure 59(e). Plaintiffs' sole basis for seeking reconsideration comes from their assertion that the Court "apparently overlooked" a Notice of Additional Authority filed in connection with their Opening Brief Regarding Mootness. The Court did not overlook the case in question, Crocker v. Austin, 115 F.4th 660 (5th Cir. 2024); it simply chose not to discuss another out-of-circuit, and therefore, non-binding decision in determining that Plaintiffs' claims asserted in their Second Amended Class Action Complaint are now moot. . Although Plaintiffs, in both their Notice of Additional Authority and Motion for Reconsideration, discuss their thoughts on Crocker's impact, their Motion for Reconsideration largely rests on the fact that the Court decided not to discuss that case in its Memorandum Opinion and Order on Mootness. So, to the extent Plaintiffs' Motion for Reconsideration is predicated on the Court's lack of discussion on Crocker, their Motion is denied. Even though the Fifth Circuit, via Crocker, lent some degree of persuasive authority to the Court on the issue of mootness, the Court came to a different conclusion in reviewing Plaintiffs' Second Amended Class Action Complaint under binding Eleventh Circuit precedent. It cannot be overlooked that each claim for relief in Plaintiffs' Second Amended Class Action Complaint circled back to enjoining enforcement against one thing: the mandates requiring vaccination against COVID-19 that are no longer in effect. Still though, Plaintiffs argue that they "have plausibly alleged present and ongoing harm" to keep their claims alive. With respect to their argument that they labor under an "ongoing harm," the Court simply disagrees. Plaintiffs argue that their Second Amended Class Action Complaint, "more so even than Crocker," speaks to challenges against the broader religious accommodations policy -- even though that broader policy (while apparently still in place) isn't currently being used against them. The Court's decision in this case rests on a "mootness plus" position. Plaintiffs' claims for injunctive relief prohibiting enforcement of the now-rescinded COVID-19 vaccine mandates are moot, and their supposed challenges against the broader religious accommodations policy are not ripe. No one knows when, if ever, those challenges will be ripe. The Court notes that for a claim for injunctive relief to remain, a live controversy must ''"exist'"—there must be "some cognizable danger of recurrent violation, something more than a mere possibility to keep the case alive." A copy of the Court's Order is available at https://urlcurt.com/u?l=nGDg7d US SOLAR: Bid for Class Certification in Tom Suit Due Jan. 9, 2025 ------------------------------------------------------------------ In the class action lawsuit captioned as DAVID TOM, v. US SOLAR QUOTES LLC, Case No. 6:24-cv-01647-JSS-RMN (M.D. Fla.), the Hon. Judge Julie Sneed entered a case management and scheduling order as follows: Initial Disclosures: Nov. 12, 2024 Third Party Joinder/ Amend Pleadings: Jan. 7, 2025 Plaintiff Expert Disclosures: Dec. 1, 2025 Defendant Expert Disclosures: Jan. 5, 2026 Discovery and Discovery-Related Feb. 2, 2026 Motions Deadline: Motion for Class Certification: Jan. 9, 2025 Mediation Deadline: July 29, 2025 Dispositive Motions, Daubert, and Mar. 2, 2026 Markman Motions: In Person Meeting to Prepare the June 22, 2026 Joint Pretrial Statement: Joint Pretrial Statement and June 29, 2026 Deposition Designations: A copy of the Court's order dated Nov. 15, 2024, is available from PacerMonitor.com at https://urlcurt.com/u?l=S0wERo at no extra charge.[CC] VIESTE SPE: Wins Summary Judgment in Crossfirst, et al. Suit ------------------------------------------------------------ Judge Douglas L. Rayes of the United States District Court for the District of Arizona granted the defendants' motions for summary judgment in the case captioned as Crossfirst Bank, et al., Plaintiffs, v. Vieste SPE LLC, et al., Defendants, Case No. CV-18-01637-PHX-DLR (D. Ariz.). Each motion raises the same three arguments (though some raise others): (1) that Plaintiffs did not rely on the allegedly misleading statements in the Official Statement; (2) that Plaintiffs fail to identify any misleading or false statement in the OS; and (3) that Plaintiffs' claims are time-barred. Plaintiffs filed an omnibus response dealing primarily with these three arguments. This case arises from the sale of certain industrial development bonds sold to finance a waste-management project developed by Vieste. Vieste and the city of Glendale, Arizona entered a contract titled the Waste Supply Agreement, whereby Glendale agreed to deliver the city's waste to a materials-recycling facility, operated by Vieste, for processing. The purpose of the project was to recover recyclable materials from Glendale's general waste that could then be sold. To that end, the Agreement included language defining the types of waste that Vieste would accept for processing and specifying that Glendale would not change the waste composition delivered to the MRF. To finance the project, Vieste worked with the defendant underwriters, HJ Sims and Lawson Financial, to prepare the OS that would accompany a bond offering. The underwriters drafted the OS based on information received from Vieste and Glendale about the project, including financial projections prepared by Vieste based on a 2003 City of Phoenix waste characterization study. The bonds were initially offered for sale to Qualified Institutional Buyers in 2013. The offering was accompanied by the OS. After the bonds were issued, Vieste contracted with Abener, an international contractor and operator, to proceed with the project. A dispute then developed between Vieste and Glendale about whether yard waste was an acceptable type of waste for Glendale to deliver under the Agreement. The parties litigated the issue in arbitration and later in state court. In March of 2015, the arbitrator ruled in Vieste's favor. But later, the state trial court determined that Glendale's interpretation of the contract was correct: Glendale was not to pre-sort waste before delivery, and yard waste was an acceptable type of waste to deliver to the MRF. The remaining plaintiffs are CrossFirst Bank and its subsidiary, CrossFirst Investments, Inc., Minnesota Lawyers Mutual Insurance Co., and Alps Property Casualty Insurance Co. MLM and ALPS purchased the bonds in the initial bond offering. Both companies delegated investment authority to their financial advisor, Sit Investments, and Sit made the ultimate purchasing decision. CrossFirst Bank, on the other hand, purchased the bonds in the secondary market about a year after the OS was issued. After less than two months, CrossFirst Bank sold the bonds to CrossFirst Investments at no loss to CrossFirst Bank. CrossFirst Investments then purchased additional bonds on the secondary market. CrossFirst worked with an investment advisor, FHN, on the purchases. FHN learned of the bonds through Rush Harding, a broker at Crews and Associates. In the fallout of the dispute between Vieste and Glendale, MLM, ALPS, and CrossFirst Investments lost their investments in the bonds. Plaintiffs filed this suit on April 27, 2018. It began as a putative class action on behalf of "all purchasers of securities offered for sale through the OS." The Court dismissed their original complaint, which asserted Arizona Securities Act claims, as time-barred. Plaintiffs were permitted to amend their complaint to assert common-law fraud and negligent misrepresentation claims. Defendants moved to dismiss those claims on statute of limitations grounds, but the Court allowed the claims to proceed, to allow for factual development on the issue. The Court later denied class certification. Discovery is now closed, and Defendants move for summary judgment. The Court grants summary judgment for Defendants. The Court need not reach the other issues raised by Defendants, as Plaintiffs' claims fail due to the absence of evidence of reliance. Because their fraud and negligent misrepresentation claims fail, so too do the derivative aiding and abetting claims, the Court concludes. A copy of the Court's Order is available at https://urlcurt.com/u?l=qYXLXX WOLFSPEED INC: Faces Zagami Class Suit Over 39.24% Stock Price Drop ------------------------------------------------------------------- GARY ZAGAMI, individually and on behalf of all others similarly situated v. WOLFSPEED, INC., GREGG A. LOWE, and NEILL P. REYNOLDS, Case No. 6:24-cv-01395-BKS-MJK (N.D.N.Y., Nov. 15, 2024) is a federal securities class action on behalf of all investors who purchased or otherwise acquired Wolfspeed securities between Aug. 16, 2023 to Nov. 6, 2024, inclusive seeking to recover damages caused by Defendants' violations of the federal securities laws. The alleged misrepresentations in this case focus on Wolfspeed's Mohawk Valley fabrication facility. In pertinent part, the Defendants provided the public with revenue projections that depended on the Mohawk Valley fabrication facility ramping its production to meet and/or exceed demand for its 200mm wafer product. The Defendants provided these overwhelmingly positive statements to investors while, at the same time, misrepresenting and/or concealing material adverse facts concerning the true state of the operational status and profitability of the Mohawk Valley fabrication facility. First, to meet its publicly stated projections, the Company would have to cancel or otherwise indefinitely suspend planned future projects such as the facility in Saarland, Germany. Second, the Company would have to terminate a significant portion of its workforce (approximately 20%) and shutter the Durham fabrication facility, the suit alleges. On Nov. 6, 2024, Wolfspeed announced its financial results for the first quarter of fiscal year 2025 and unveiled guidance for the second quarter well below expectations. While the Defendants had repeatedly claimed that 20% utilization of the Mohawk Valley fabrication facility would result in $100 million revenue out of the facility, the Defendants now guided to a range 30% to 50% below that mark. Investors and analysts reacted immediately to Wolfspeed's revelation. The price of Wolfspeed's common stock declined dramatically. From a closing market price of $13.71 per share on Nov. 6, 2024, Wolfspeed's stock price fell to $8.33 per share on Nov. 7, 2024, a decline of about 39.24% in the span of just a single day. Investors who purchased Wolfspeed stock prior to this disclosure did so based on materially misleading information and suffered damages as a result, the suit asserts. The Plaintiff purchased Wolfspeed common stock at artificially inflated prices during the Class Period and was damaged upon the revelation of the Defendants' fraud. Wolfspeed is a global semiconductor company focused on silicon carbide materials and the fabrication of devices for power applications.[BN] The Plaintiff is represented by: Gregory M. Nespole, Esq. Adam Apton, Esq. LEVI & KORSINSKY, LLP 33 Whitehall Street, 17th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: gnespole@zlk.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2024. 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 ***