/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200714.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 14, 2020, Vol. 22, No. 140 Headlines 3M COMPANY: McDaniel Alleges Injury From Exposure to Toxic AFFF 82ND STREET GROCERY: Fails to Pay Minimum Wage, Perez Says AFNI INC: Ismani Files Placeholder Bid for Class Certification AGROFRESH SOLUTIONS: Bansal Sues Over Issuance of Preferred Stock AIR METHODS: To Pay $78MM to Flight Crew Employees in Settlement ALABAMA: Smith Files Prisoner Civil Rights Suit in M.D. Alabama ALASKA: Denial of Bid to Enforce Cleary Deal in Antenor Reversed ALDI: Settles Wage-and-Hour Class Action for $2 Million ALKAFAWEEN FOOD: Monther Seeks Proper Wages for Cashiers ALLERGAN INC: Faces Morrow Suit Over Defective BIOCELL Implants ALLERGAN INC: Faces Ploeger Suit Over Defective BIOCELL Implants ANGLICARE: Class Action Mulled Over Newmarch House COVID Deaths ANGLICARE: Shine Lawyers Explores Class Action Over Health Crisis ANTOJITOS MEXICANOS: Fails to Pay Minimum Wage, Ceballos Claims APPLIED DATA: Derosier Suit Moved From Cir. Court to S.D. Florida ARIZONA: Diaz Sues Board of Regents, Seeks Tuition Fee Refund ASPEN HOME IMPROVEMENTS: Eder Slams Illegal Telemarketing Calls BAYER AG: To Pay $10 Billion to Settle Roundup Cancer Lawsuits BAYER: July 23 Preliminary Approval Hearing on Roundup Settlement BROADSTAFF LLC: Alexander Labor Suit Seeks Unpaid Overtime Pay BROOKDALE SENIOR: Frank Cruz Law Firm Reminds of Aug. 24 Deadline BROOKDALE SENIOR: Schall Law Firm Reminds of August 24 Deadline C&L MAINTENANCE: Fails to Pay Minimum & OT Wages, O'Malley Claims CANADIAN HOCKEY: Class Action May Take Years to Get Resolved CASPER SLEEP: Glancy Prongay Reminds of August 18 Deadline CASPER SLEEP: Portnoy Law Firm Reminds of August 18 Deadline CEPHALON INC: $66M Settlement in Vista Suit Gets Final Approval CHINA XD PLASTICS: Sears Challenges Proposed Sale to Faith Dawn CIEE INC: Zhao Suit Removed From Superior Court District of Maine CLAYTON COUNTY, GA: Civil Rights Groups Suing Sheriff's Office CLEARVIEW AI: Thornley Suit Moved From Cir. Ct. to N.D. Illinois CO-DIAGNOSTICS: Kirby McInerney Reminds of August 17 Deadline COCA-COLA: Faces Class Action Over Treatment of Cows at Fair Oaks COCONUT JOE'S: Mackie Sues Over Wrongful Dismissal, Unpaid Wages COLONY CAPITAL: Bragar Eagel Reminds of Class Action Lawsuit COLUMBIA GAS: Agrees to Pay $56M in New Gas Explosion Settlement CONTEXTLOGIC INC: Sells No Prescription Contact Lenses, Britt Says COOL CLOUDS: Faces Lara Suit Over Sale of Puff Bar E-Cigarettes COSTCO WHOLESALE: Calif. Dist. Denies Venue Change in Rough Suit CYTOMX THERAPEUTICS: Pomerantz LLP Reminds of July 20 Deadline DARKTRACE INC: $82.5K Settlement in Der-Hacopian Suit Has Prelim OK DICK'S SPORTING: Underpays Employees, Carroll Claims DISCOVER BANK: Ward Plaintiffs Compelled to Arbitrate Claims DIVERSIFIED FINANCING: Collins Suit Transferred to N.D. Georgia ECOBEAR BIOHAZARD: Sarraf Sues Over Unsolicited Fax Ads ELANCO ANIMAL: Faruqi & Faruqi Reminds of July 20 Deadline ELLIS HOSPITAL: Nurse Sues Over Underpayment of Wages EMERGENCY MEDICINE: Aguilar Seeks Unpaid Overtime Wages EMSI HOLDING: Fails to Issue Advanced Closure Notice, Cook Says ENDO INT'L: Bernstein Liebhard Reminds of August 18 Deadline ENPHASE ENERGY: Barbuto & Johansson Reminds of August 17 Deadline ENPHASE ENERGY: Labaton Sucharow Announces Class Action Filing ENPHASE ENERGY: Levi & Korsinsky Reminds of August 17 Deadline EQT CORP: Court Denies EQPTC's Arbitration Bid in Heaster Suit ERIE INSURANCE: Six Nashville Restaurants Launch Class Action EVERGREEN HOSPITAL: Waived Right to Arbitration, Says Wash. S.C. EXETER FINANCE: Tenth Circuit Appeal Filed in Rivera TCPA Suit FAM LLC: Cruz Sues in S.D. New York Alleging Violation of ADA FCA US: Pistorio Claims Infotainment System Defective FERRARA CANDY: Artificial Victory in Class Action vs. Candymaker FIGURE 8: Daniell Sues Over Unpaid Wages & Unlawful Retaliation FINJAN HOLDINGS: Faces Barnes Suit over Proposed Merger FLORIDA ORTHOPEDIC: Faces $99M Class Action Over Data Breach FROST-ARNETT COMPANY: Hau FDCPA Suit Removed to W.D. Wisconsin GENERAL MOTORS: Class Action Over Takata Airbags Won't Proceed GLOBAL QUALITY: Default Judgment in Styles Suit Denied as Moot GLYNN COUNTY, GA: Underpays Detention Officers, Austin et al. Say GPB CAPITAL: Faces Class Action Over Investment Scheme GSK CONSUMER: Faces Class Action Over Benefiber 100% Natural Claim H&R BLOCK: HRB Tax Appeals Ruling in Olosoni Suit to 9th Circuit HALLIBURTON CO: Tenth Circuit Appeal Filed in LeBlanc FLSA Suit HAMILTON, ONTARIO: $250 Red Hill Valley Parkway Suit Moving Slowly HANIL DEVELOPMENT: Denial of Bid to Intervene in Hahn Upheld HARLEY-DAVIDSON MOTOR: Bouas Stayed Pending Resolution of Garcia HARVEY WEINSTEIN: Accusers to Get $19 Million in Settlement HARVEY WEINSTEIN: To Settle Sexual Misconduct Class Suit for $19MM HOME DEPOT: Mendiola Sues Over Inadequate COBRA Health Plan Notice HOMESERVE USA: Leone Suit Seeks to Certify Class IDEANOMICS INC: Glancy Prongay Reminds of August 27 Deadline IDEANOMICS INC: Kessler Topaz Reminds of August 27 Deadline IDEANOMICS INC: Kirby McInerney Reminds of August 27 Deadline IDEANOMICS INC: Portnoy Law Firm Investigates Securities Claims INVESTORS BANCORP: Dismissal of Counts I & II in Elburn Suit Denied J2 GLOBAL: Faces Garcia Suit Over Inflated Share Price JANI-KING INT'L: Mujo Appeals Judgment in Labor Suit to 2nd Cir. JAY'S LANDSCAPING: McCammon Disallowed as Party in Fitchhorn Suit KAPPO MASA: Mendez et al. Seek Unpaid Wages, Invalid Tip Credit KARIZMA LOUNGE: Conteras Sues Over Unpaid Wages & Discrimination KICHO CORP: Class in Chen Class Suit Conditionally Certified KING COUNTY, WA: 9th Cir. Appeal Filed in Moore Civil Rights Suit KINGOLD JEWELRY: Rosen Law Firm Files Securities Class Action KINGOLD JEWELRY: Tysor Balks at 24% Decline in Share Price KIRKLAND LAKE: Rosen Law Firm Reminds of August 28 Deadline KPMG: May Face Class Action Claims Over Miller Energy Audit Failure L'OREAL USA: Amended Summary Judgment in Carter Suit Granted LAWRENCE KIA: Humphrey Farrington Files Consumer Class Action LEADERS IN COMMUNITY: Edwards Appeals RICO Suit Order to 9th Cir. LEAPFORWARD FINANCIAL: Landy Hits Illegal Telemarketing Calls LEGALLY MINE: Cal. Northern Dist. Reinstates Eliasieh Class Suit LIBRE TECHNOLOGY: $425K Settlement in Hudson Gets Prelim. Approval LOWE'S HOME: Williams Suit Challenges Sale of Herbicide Roundup MACY'S WEST: Vazquez Sues Over Unlawful Wages MALLINCKRODT PHARMA: Methadone Patients File Class Action MASIMO CORP: PHI Appeals Class Certification Denial to 9th Cir. MASON COUNTY, WA: Sued Over Hood Canal Mining Operation MATTERPORT: Faces Class Action Over Lead Program MDL 2775: Caporale v. Smith & Nephew Moved to District of Maryland MDL 2848: Court Remands Gentile v. Merck to Southern Dist. of Ohio MDL 2859: Trujillo v. Zimmer Moved to Southern Dist. of New York MDL 2873: New Mexico's AFFFs PL Lawsuit Moved to South Carolina MDL 2913: Breathe DC and Lankford Suits Moved to N.D. California MDL 2936: 8 SMITTY'S/CAM2 Suits Moved to Western Dist. of Missouri MDL 2938: 11 Suits vs. Evenflo Co. Moved to Massachusetts Court MEDICAL CENTER: Averts Class Action Over Hospital Liens MIDLAND CREDIT: Faces Bolanos FDCPA Suit Over Collection Letter MITO'S USA: Barraza Sues Over Unpaid Overtime Compensation MOSS NUTRITION: Website Not Accessible to Blind Users, West Claims MOTORISTS COMMERCIAL: King Cobra Suit Moved to W.D. Pennsylvania NATIONSTAR MORTGAGE: Appeal of Reverse Mortgage Holders Nixed NATIONWIDE CREDIT: Third Cir. Appeal Filed in Dotson FDCPA Suit NAVITELIA INDUSTRIES: Crena Sues Over Unsolicited Text & Email Ads NEW YORK: 2nd Cir. Appeal v. Green-Robinson Filed in Gulino Suit NEW YORK: Gyms Threaten Class Action Over Unfair Treatment NEW YORK: Proposed Class Action Seeks Reopening of Gyms NINTENDO: President Apologizes for Joy-Con Drift Issue Amid Suit NORTH CAROLINA: 11 Butner FCC Inmates Withdraw Class Action NUTANIX INC: Russell Sues Over Unpaid Wages, Denied Breaks NVIDIA: Seeks Dismissal of Class Action Over Crypto GPU Sales OAKLAND, MI: Measures to Improve Hygiene & Safety at Jail Ordered OCCIDENTAL COLLEGE: Faces Lindner Suit in District of New Jersey OFFICE DEPOT: Court Denies Stein's Class Certification Bid OHIO: Martin Appeals Ruling in Civil Rights Suit to Sixth Circuit OHIO: S.C. Reverses Appeals Ct. Ruling in Medicaid Recouping Suit PACIFIC PREMIER: Fahmia Seeks to Recover Agent Fees PAN-O-GOLD BAKING: Settlement in Hoverson Suit Gets Final Approval PARADIES SHOPS: Bailey Seeks to Certify Employees FLSA Class PARAGON COIN: Faces Securities Class Action Over 2017 ICO PELEPHONE COMMUNICATIONS: Request for Class Action Dismissal OK'd PERRIGO CO: Appeals Decision in Roofer's Suit PILGRIMS PRIDE: UFCW Sues Over Decline in Market Value of Stocks PITTSBURGH, PA: Faces Class Suit Over Police Response to Protests PJ CHEESE: Fails to Reimburse Delivery Drivers, Pollard Claims PLASTIKON INDUSTRIES: Appeals Ruling in Bandril Suit to 9th Cir. PLASTIPAK PACKAGING: Munoz Sues Over Failure to Pay Overtime PLAYAGS INC: Schall Law Firm Reminds of August 24 Deadline PORTFOLIO RECOVERY: Jones Suit Moved From W.D. Tenn. to E.D. Va. POST CONSUMER: Court Denies Bid to Dismiss Gonzalez Class Suit PRECISION 2000: Garcia-Robelo et al. Seek Proper Wages PRECISION DRILLING: Third Circuit Appeal Filed in Tyger FLSA Suit PREFERRED APARTMENT: Ciccone Files Suit for Breach of Contract PRO TEETH: Faces Class Action Over Dental Products with Charcoal PROASSURANCE CORP: Levi & Korsinsky Notes of Aug. 17 Deadline RASH CURTIS: $89MM Attorneys' Fees Awarded in Perez Lawsuit RESPONSE MARKETING: Fabricant et al. Sue over Unsolicited Calls RET PLANS: 2nd Circuit Reinstates Judgment in ERISA Class Action RETAIL MERCHANTS: Faces Jones FDCPA Class Suit in W.D. Arkansas RIMROCK ENGINEERING: Judge Okays $3.45MM Class Action Settlement RYDER SYSTEM: Bronstein Gewirtz Reminds of July 20 Deadline RYDER SYSTEM: Faruqi & Faruqi Reminds of July 20 Deadline S. RAYS INC: Website Unaccessible to Blind Users, West Claims SCHLUMBERGER TECHNOLOGY: Misclassifies Drivers, Gatson Claims SENIOR CARE: Court Certifies Caregivers Class in Moss FLSA Suit SIRAH 1720 LLC: Fails to Pay Minimum Wage, Alegria Claims SLACK TECHNOLOGIES: Court Narrows Claims in Pirani Securities Suit SMILEDIRECTCLUB INC: Lucas et al. Sue Over Spam Text Messages SNAP INC: Appeals Certification Order in Erickson Securities Suit SONENDO INC: Fite Seeks Conditional Class Certification STAATS CONSTRUCTION: Workers Slam Missed Breaks, Missing Paystubs SUPER ECONOMIC: Faces Pena Wage-and-Hour Suit in E.D.N.Y. TARGET CORP: Wage & Hour Class Action Remanded to State Court TD BANK: Heller Alleges Illegal Telemarketing Practices TEVA CANADA: Faces Generic Drug Price-Fixing Class Action THYMES LLC: Cruz Sues in S.D. New York Alleging Violation of ADA TIM HORTONS: Faces Class in Quebec Over App LocationTracking TOM'S OF MAINE: Coburn Disputes "All Natural" Label on Toothpaste TURNCO ENTERPRISES: Misclassifies Oilfield Workers, Daigle Claims UBER TECHNOLOGIES: Baker McKenzie Discusses Drivers' Suit Ruling UBER: Judge Trims Drivers' Sick Leave Claim from Class Action UNITED STATES: ICE Unlawfully Jails Migrant Children, Judge Finds UNITED STATES: Monk Appeals Ruling in Veterans' Benefits Suit VICTORIA BECKHAM: Cruz Sues Over Blind-Inaccessible Web Site VITOL INC: BB&B, Rightmyer Suit Assets Gas Price Manipulation VOLKSWAGEN GROUP: Pitts Sues Over Start/Stop Defect in Vehicles VOLUME SERVICES: Settlement in Raquedan Suit Gets Prelim. Approval WIGWAM MILLS: Cruz Sues in S.D. New York Alleging ADA Violation WILL LEATHER: Blind Customers Can't Access Web Site, Cruz Claims [*] AMP Warns Class Actions May Lead to Job Losses, Co. Failures [*] Morrison & Foerster Attorneys Discuss COVID-Related Suits [*] Victoria Permits Contingency Fees in Class Actions ********* 3M COMPANY: McDaniel Alleges Injury From Exposure to Toxic AFFF --------------------------------------------------------------- Patrick Kelly McDaniel v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; 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. 2:20-cv-02489-RMG (D.S.C., June 30, 2020), seeks damages for personal injury for the Plaintiff and for those similarly situated resulting from exposure to aqueous film-forming foams containing the toxic chemicals collectively known as per and polyfluoroalkyl substances. AFFF is a specialized substance designed to extinguish petroleum-based fires. AFFF has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. According to the complaint, 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. 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. PFAS includes perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS") and related chemicals, including those that degrade to PFOA and/or PFOS. The Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans, the Plaintiff contends. The Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of the Plaintiff's training and firefighting activities. The McDaniel case has been consolidated in MDL No. 2873, In Re Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel.[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 Telephone: 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 Telephone: 205-328-9200 Facsimile: 205-328-9456 82ND STREET GROCERY: Fails to Pay Minimum Wage, Perez Says ---------------------------------------------------------- JORGE DANIEL PEREZ, individually and on behalf of others similarly situated, v. 82ND STREET GROCERY INC. (D/B/A WEST 82ND GROCERY INC.); PARAMJIT SINGH; and LAKI SINGH, Defendants, Case 1:20-cv-04955 (S.D.N.Y., June 29, 2020) seeks to recover from the Defendants unpaid minimum and overtime wages under the Fair Labor Standards Act. The Plaintiff Deniel was employed by the Defendants as delivery driver. 82nd Street Grocery Inc. owns, operates, or controls a grocery store, located at New York, NY, under the name West 82nd Grocery Inc. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 AFNI INC: Ismani Files Placeholder Bid for Class Certification -------------------------------------------------------------- In the class action lawsuit styled as HASIME ISMANI, Individually and on Behalf of All Others Similarly Situated, v. AFNI, INC., Case No. 2:20-cv-00957-SCD (E.D. Wisc.), the Plaintiff filed a "placeholder" motion for class certification in order to prevent against a "buy-off" attempt, a tactic class-action defendants sometimes use to attempt to prevent a case from proceeding to a decision on class certification by attempting to "moot" the named plaintiff's claims by tendering the plaintiff individual (but not classwide) relief. The Plaintiff asks the Court for an order to certify class, appoint Plaintiff as the class representative, and appoint Plaintiff's attorneys as class counsel. In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case," and "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." The Sixth Circuit applied Campbell-Ewald in an unreported opinion in Family Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508, 2016 WL 384823, at (6th Cir. Feb. 2, 2016). In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth Circuit held that, even where "[the parties [did] not dispute that all eleven named plaintiffs' individual claims became moot before the district court certified the class," the "picking-off" exception applied and allowed the named plaintiffs with moot individual claims to pursue class certification, which would "relate back" to the filing of the complaint, applying Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth Circuit held this ruling was consistent with Campbell-Ewald, 136 S. Ct. at 672, which refused to put defendants "in the driver's seat" on class certification.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 Email: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com AGROFRESH SOLUTIONS: Bansal Sues Over Issuance of Preferred Stock ----------------------------------------------------------------- PARUL BANSAL, on behalf of himself and all other similarly situated stockholders of AGROFRESH SOLUTIONS, INC, Plaintiff, v. ROBERT J. CAMPBELL, DENISE L. DEVINE, NANCE K. DICCIANI, JORDI FERRE, GREGORY M. FREIWALD, TORSTEN KRAEF, GEORGE LOBISSER, and MACAULEY WHITING, JR., Defendants, Case No. 2020-0548 (Del. Ch., July 7, 2020) alleges breaches of fiduciary duty by the AgroFresh Board of Directors in connection with the Board's dissemination of a materially omissive proxy statement which seeks to solicit stockholder approval in connection with the Company's decision to issue convertible preferred stock with a high-dividend rate. On June 13, 2020, AgroFresh entered into an investment agreement with an affiliate of certain investment funds managed by Paine Schwartz Partners, LLC ("PSP") pursuant to which PSP agreed to purchase in a private placement an aggregate of $150,000,000 of new preferred stock of the Company. Specifically, a total of 150,000 shares of AgroFresh newly-designated convertible preferred stock, par value $0.0001 per share will be purchased by PSP. The shares of Preferred Stock will be convertible into 30 million shares of AgroFresh common stock, which will constitute approximately 36% of the Company's outstanding shares of common stock on an as-converted basis. On July 6, 2020, AgroFresh filed a definitive proxy statement with the U.S. Securities and Exchange Commission soliciting stockholder approval of the Preferred Stock Proposal. The statement is so materially deficient that it deprives AgroFresh stockholders of any meaningful way to assess the reasonableness of the process leading to - or the financial fairness of - the Investment Agreement. In addition to issuing a materially omissive Proxy Statement, the AgroFresh Board is wrongfully coercing the Company's stockholders to approve the Preferred Stock Proposal. This coercive mechanism leaves stockholders with no choice but to approve the Preferred Stock Proposal regardless of their views on its merits, because rejecting it would subject the Company to an economic penalty. AgroFresh Solutions, Inc. provides solutions to extend the shelf life of fresh produce for both growers and packers with principal headquarters in Philadelphia, Pennsylvania.[BN] The Plaintiffs is represented by: Peter B. Andrews, Esq. Craig J. Springer, Esq. David M. Sborz, Esq. ANDREWS & SPRINGER LLC 3801 Kennett Pike Building C, Suite 305 Wilmington, DE 19807 Telephone: (302) 504-4957 - and - D. Seamus Kaskela, Esq. KASKELA LAW LLC 18 Campus Boulevard, Suite 100 Newtown Square, PA 19073 Telephone: (484) 258-1585 AIR METHODS: To Pay $78MM to Flight Crew Employees in Settlement ---------------------------------------------------------------- Angela Ruggiero of The Mercury News reports that a medical helicopter operator has been ordered to pay $78 million to its flight crew employees for unpaid overtime and missed breaks in a class-action lawsuit settlement. Alameda County Superior Court Judge Winifred Y. Smith agreed Wednesday to the preliminary settlement filed by about 450 former and current medical flight crew members employed in California by Air Methods Corporation of Colorado. Air Methods also is expected to pay daily overtime to its medical flight crew starting from June 28, resulting in an estimated 20% or more increase to their salaries, according to the attorneys representing the crew members. Air Methods is reportedly the country's largest air medical transport company and operates helicopter bases. Teams of nurses and paramedics are dispatched in the helicopters, often to remote areas. Air Methods was accused of refusing to pay daily overtime for crews working more than eight hours in a workday. The flight crew commonly worked 24-hour shifts, according to attorney James Sitkin, who represented the crew. He alleged that Air Methods did not allow the flight crew to take off-duty meal breaks or rest breaks. "When Loyd and Shane (the original plaintiffs) first came to me and described the company's pay policies, and on top of that how it was having flight crews work unpaid extra time, it just struck me as wrong," Sitkin said in a statement. Since Judge Smith's preliminarily approved the settlement Wednesday, final approval is expected in October. It's estimated each plaintiff will receive more than $100,000 each, on average. Doug Flanders, director of communications for Air Methods Corporation, said in a statement that the changes in pay are positive and focus on how the company treats uninterrupted sleep time and their approach to the states' daily and weekly overtime. The changes will result in a "gross pay increase" for all Air Methods Corporation clinicians in the state, he said. "This decision to change AMC's pay practices puts our teammates first. We know this will make us stronger in California by ensuring we continue to recruit and retain the top medical clinicians in the state, strengthens our push to be the destination employer for all in the air medical industry and allows us to continue to provide the highest level of care to all the California communities we serve," Flanders said. [GN] ALABAMA: Smith Files Prisoner Civil Rights Suit in M.D. Alabama --------------------------------------------------------------- A class action lawsuit has been filed against Ivey, et al. (INMATE 1). The case is styled as Andrew William Smith, Inmates of Red Eagle Work Center, and the inmate population of the Alabama Department of Corrections as a whole, and all those similarly situated v. Kay Ivey, Governor of the State of Alabama, in her official and individual capacity; Alabama Department of Corrections; Jefferson S. Dunn, Commissioner of the Alabama Department of Corrections, in his official and individual capacity; Red Eagle Work Center; Charles Tipton, Warden II, In his official and individual capacity; Alabama Board of Pardons and Paroles; Charles A. Graddick, Director of the Alabama Bureau of Pardons and Paroles, In his official and individual capacity; Alabama Attorney General's Office, Case No. 2:20-cv-00464-RAH-JTA (M.D. Ala., July 6, 2020). The nature of suit is stated as Habeas Corpus (Prison Condition) for Prisoner Civil Rights. Kay Ellen Ivey is an American politician serving as the 54th governor of Alabama since 2017. A member of the Republican Party, she was the 38th Alabama State Treasurer from 2003 to 2011 and the 30th lieutenant governor of Alabama from 2011 to 2017. The Plaintiff, who is currently incarcerated at the ADOC RED EAGLE, of Montgomery, Alabama, appears pro se.[BN] ALASKA: Denial of Bid to Enforce Cleary Deal in Antenor Reversed ---------------------------------------------------------------- In the case, JUNIOR ANTENOR, KEILAN C. EBLI, and LOREN J. LARSON JR., Appellants, v. STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, Appellee, Supreme Court No. S-17005, No. 7442 (Alaska), Judge Joel Bolger of the Supreme Court of Alaska (i) reversed the denial of Larson and Ebli's motion to enforce the Cleary Final Settlement Agreement; and (ii) affirmed the denial of Antenor's motion to enforce his claimed right to a particular text about computer programming. Appellants Larson, Ebli, and Antenor are inmates in DOC custody at Goose Creek Correctional Center. Under the current appeal, the Alaska Supreme Court addresses two separate challenges presented by inmates at an Alaska correctional facility to Department of Corrections ("DOC") policies. First, the inmates challenge telephone charges for local calls by inmates, arguing that the rates they and call recipients must pay for calls violate their constitutional right to rehabilitation, their statutory right to reasonable telephone access, and DOC's contractual obligations under a prior settlement and consent decree. Second, one of the prisoners challenges DOC officers' decision to deny him access to a computer programming book he ordered from outside the prison. He contends that DOC placed a content-specific restriction on the educational materials and publications prisoners are allowed, violating the Alaska Constitution's free speech provisions as well as prisoners' right to reformation. Each of these challenges reach the Supreme Court after inmates exhausted the administrative process from prison as set forth in Cleary v. Smith -- a previous class action lawsuit by inmates against DOC. Inmates appealed to the Superior Court where their prayers for relief were denied. The Cleary case began in 1981 as a class action brought against the state by Alaska prisoners challenging prison conditions. The plaintiffs formed three subclasses: pretrial detainees (subclass A), sentenced prisoners in state owned or operated correctional centers (subclass B), and prisoners held by the state in federal facilities (subclass C). Although the state and subclass C settled in 1983, litigation continued with the remaining subclasses until the parties entered a comprehensive settlement, which the superior court incorporated in a consent decree in 1990. The settlement agreement applied to all inmates, with some exceptions, who are or will in the future be incarcerated in correctional facilities owned or operated by the state and bound the Department of Corrections and any successor department, division, or agency of the state of Alaska which is statutorily responsible for the administration of the state's adult correctional facilities. It included elaborate provisions for future operation of Alaska prisons, enumerated rights of inmates, guaranteed the availability of specific rehabilitative programs and services, required the state to implement an inmate classification system, created population guidelines, and established caps to eliminate overcrowding. The agreement also established mechanisms to monitor ongoing compliance, including a provision calling for a designated superior court judge to have continuing jurisdiction over alleged violations. The Final Settlement Agreement and Order provided that individual inmates could raise compliance challenges as long as they first exhausted all administrative remedies. In 2000, DOC moved to terminate the Final Settlement Agreement pursuant to the Alaska Prison Litigation Reform Act ("APLRA"). At the time, the inmate plaintiffs immediately opposed, raising several challenges to the APLRA under the Alaska and United States Constitutions. Superior Court Judge Elaine M. Andrews issued a ruling in 2001, interpreting the APLRA to terminate only the prospective effect of the Final Settlement Agreement, not the Agreement itself, and concluding that, under this narrow reading, the statute was constitutional. Larson and Ebli first argue that DOC breached the Cleary Final Settlement Agreement by allowing Securus to raise local call rates by filing a petition with the Regulatory Commission of Alaska rather than by moving to modify the Final Settlement Agreement in superior court. In response, DOC argues that neither AS 33.30.231(a)'s guarantee of "reasonable access" to telephones nor the Alaska Constitution's free speech provision confers a "right to free telephone calls." The Supreme Court holds that the superior court made no factual findings on whether call rates impose unreasonable burdens on inmates and their families. It determined only that reasonable access under AS 33.30.231(a) is not the same as the right to free phone calls. In reaching that conclusion, the superior court appears to have construed Larson and Ebli's argument too narrowly. In claiming that current rates are unreasonable, they do not assert that the only reasonable alternative is free local calls. In fact, the inmates point to the Cleary Final Settlement Agreement's maximum of $0.50 per call as support for their argument that $1 is not permissible. But the superior court did not consider whether a reasonable rate could be greater than zero but lower than the current $1 -- with or without added taxes and fees. Without additional evidence and more detailed findings, the Supreme has no way to meaningfully review the superior court's decision about the inmates' statutory right to reasonable telephone access The Supreme Court therefore reverses the superior court's denial of Larson and Ebli's motion to enforce. The Supreme Court remands the case for the superior court to determine whether Securus' current rates for local telephone calls violate inmates' statutory and constitutional rights to reasonable telephone access and rehabilitation. In making its determination the court should take into account Alaska's unique geography and economy, as well as its statewide administration of correctional facilities. Antenor argues that DOC has violated his rights by imposing a de facto blanket prohibition on inmates ordering any computer-related educational literature. DOC responds that the superior court correctly relied on United States Supreme Court precedent holding that prison officials are entitled to broad deference on matters related to prison security. The Supreme Court concludes that denying Antenor access to the Arduino book based on security reasons did not violate the Alaska Constitution's free speech provision. The superior court appeared to conclude that even if Goose Creek had imposed a blanket ban on computer related books, it would be justified by security concerns. Similarly, even if there is in fact a ban on obtaining computer-related books from outside the facility, Antenor was not denied access to related materials within Goose Creek. He acknowledges that he participated in at least one electronics and robotics class aimed at providing the type of rehabilitation contemplated in AS 33.30.011(a)(3). DOC has some discretion over the rehabilitative programs it makes available to prisoners; the Court has held, for instance, that transferring a prisoner from one prison employment position to another did not violate the prisoner's right to rehabilitation. In that case, it emphasized that the prisoner was not denied all rehabilitative opportunities, merely transferred between positions. Antenor likewise has not been denied all rehabilitative opportunities, or even all rehabilitative opportunities in his area of interest. Denying him access to a specific book, therefore, does not violate his constitutional right to reformation. In sum, because the record does not provide enough evidence to meaningfully determine the reasonableness of the rates charged inmates for local telephone calls, the Supreme Court reversed the denial of Larson and Ebli's motion to enforce, and remanded for further proceedings consistent with its Opinion. Because it concludes that Goose Creek's restrictions on programming-related books are rationally related to a legitimate interest, and because they do not infringe on the right to rehabilitation, the Supreme Court affirmed the denial of Antenor's motion to enforce his claimed right to a particular text about computer programming. A full-text copy of the Alaska Supreme Court's April 17, 2020 Opinion is available at https://is.gd/3oqOJ2 from Leagle.com. Appearances: Junior Antenor, pro se, Keilan C. Ebli, pro se, Loren J. Larson, Jr., pro se, Wasilla, Appellants. Matthias Cicotte, Assistant Attorney General, Anchorage, and Kevin Clarkson, Attorney General, Juneau, for Appellee. ALDI: Settles Wage-and-Hour Class Action for $2 Million ------------------------------------------------------- Katie Clarey, writing for HRDive, reports that Aldi, a discount grocery store chain, will pay $2 million to settle wage and hour claims brought by a class of California workers (Gant v. Aldi, Inc. No. 2:19-cv-03109 (C.D. Calif. June 22, 2020)). The plaintiffs claimed Aldi violated California law by failing to pay proper minimum and overtime wages. They also alleged the store denied workers meal and rest breaks, in addition to other violations such as failure to pay timely wages at termination. The class comprised just over 2,000 Aldi workers. [GN] ALKAFAWEEN FOOD: Monther Seeks Proper Wages for Cashiers -------------------------------------------------------- ABDULLA MONTHER, Plaintiff, v. ALKAFAWEEN FOOD STORE, INC d/b/a Midway Food Market f/k/a S&M Grocery, Inc. f/k/a Alqurneh LLC; ZAQU, INC. d/b/a Midway Food Market f/k/a S&M Grocery, Inc. f/k/a Alqurneh LLC; MAJED M. ALKAFAWEEN; and MOHAMMED ISSA ALQURNEH, Defendants, Case No. 1:20-cv-22760-KMM (S.D. Fla., July 6, 2020) is an action brought by the Plaintiff and other similarly situated individuals to recover money damages for unpaid overtime wages under the Fair Labor Standards Act. According to the complaint, while employed by the Corporate Defendants, Plaintiff worked approximately an average of 70-84 hours per week without being compensated at the rate of not less than one- and one-half times the regular rate at which he was employed. Plaintiff was employed as a Cashier performing the same or similar duties as that of those other similarly situated Cashier(s) whom Plaintiff observed working in excess of 40 hours per week without overtime compensation. Plaintiff worked for the Corporate Defendants from approximately December 13, 2018 through June 11, 2020. Alkafaween Food Store, Inc. is a Miami-Dade County, Florida-based food retailer. Zaqu, Inc. is a food services provider based in Florida.[BN] The Plaintiff is represented by: Tanesha Blye, Esq. Aron Smukler, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: tblye@saenzanderson.com asmukler@saenzanderson.com msaenz@saenzanderson.com ALLERGAN INC: Faces Morrow Suit Over Defective BIOCELL Implants --------------------------------------------------------------- SHELLEY MORROW v. ALLERGAN INC., f/k/a INAMED CORPORATION, a Delaware Corporation and ALLERGAN, USA INC., a Delaware corporation, Case No. 2:20-cv-07992 (D.N.J., June 30, 2020), is brought on behalf of the Plaintiff and all other similarly situated alleging that the Defendants' BIOCELL textured implants are defective. The lawsuit arises from Allergan's July 24, 2019 announcement of a worldwide recall of BIOCELL after the U.S. Food and Drug Administration (FDA) called for the action following new information that Allergan's BIOCELL implants were tied to cases of breast implant-associated anaplastic large cell lymphoma ("BIA-ALCL") not seen with other textured implants. Breast implants are medical devices that are implanted under the breast tissue to increase breast size or replace breast tissue that has been removed. Tissue expanders are a type of inflatable breast implant which stretches skin and muscle to make room for a permanent implant in the future. Tissue expanders are often used in breast reconstruction surgeries. BIA-ALCL is a serious cancer and can be fatal, especially if not diagnosed early or promptly treated. The U.S. Food and Drug Administration determined the risk of developing BIA-ALCL was six times higher with Allergan's BIOCELL textured implants when compared with textured implants from other manufacturers, the lawsuit says. In Allergan's recall statement, the FDA stated there are 573 cases of BIA- ALCL worldwide. Of those 573 cases, 33 people have died as a result of BIA-ALCL. The products affected by the FDA's recall are as follows: Style Allergan Natrelle Saline-Filled Breast Implants; Allergan Natrelle Silicone-Filled Textured Breast Implants; Natrelle 410 Highly Cohesive Anatomically Shaped Silicone Filled Breast Implants; and Allergan tissue expanders that have BIOCELL texturing originally cleared as: Natrelle 133 Plus Tissue Expander (K143354) and Natrelle 133 Tissue Expander with Suture Tabs (K102806). On July 30, 2019, Allergan announced it has created a BIOCELL Replacement Warranty for all customers that currently have BIOCELL textured implants ("the Warranty"). The Warranty provides that Allergan will provide Allergan smooth implants to replace the BIOCELL textured implants, the lawsuit says. However, Allergan will not provide any surgical fee assistance or reimbursement for the surgery to remove the BIOCELL textured implants and replace them with Allergan smooth implants. The Warranty will run for 24 months, until July 24, 2021, and will apply only to revision surgeries on or after the date of the FDA's recall, July 24, 2019. As a result of Allergan's conduct, including refusal to pay for the removal of the recalled BIOCELL implants and the increased risk of developing BIA-ALCL, the Plaintiff contends she will be forced to expend substantial amounts of money for surgical costs associated with removal of the BIOCELL Recalled Implants and lost opportunity costs associated with post-surgery recovery time. The Morrow case has been consolidated in MDL 2921, RE: ALLERGAN BIOCELL TEXTURED BREAST IMPLANT PRODUCTS LIABILITY LITIGATION. The Plaintiff is a patient who had Allergan's BIOCELL breast implants implanted into her body. Evidence has emerged over time that these implants cause a form of cancer known as Breast- Implant Associated Anaplastic Large Cell Lymphoma (BIA-ALCL). Allergan manufactures and sells BIOCELL saline-filled and silicone-filled breast implants and tissue expanders "BIOCELL" or "BIOCELL textured implants").[BN] The Plaintiff is represented by: Virginia M. Buchanan, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 South Baylen Street (32502) P. O. Box 12308 Pensacola, FL 32591 Telephone: (850) 435-7023 Facsimile: (850) 436-6023 E-mail: vbuchanan@levinlaw.com ALLERGAN INC: Faces Ploeger Suit Over Defective BIOCELL Implants ---------------------------------------------------------------- ANN PLOEGER v. ALLERGAN PLC, now known as ABBVIE, INC.; ALLERGAN, INC., ALLERGAN USA, INC., and DOEs 1-100, Case No. 2:20-cv-07986 (D.N.J., June 30, 2020), is brought on behalf of the Plaintiff and all other similarly situated alleging that the Defendants' BIOCELL textured implants are defective. The lawsuit arises from Allergan's July 24, 2019 announcement of a worldwide recall of BIOCELL after the U.S. Food and Drug Administration (FDA) called for the action following new information that Allergan's BIOCELL implants were tied to cases of breast implant-associated anaplastic large cell lymphoma ("BIA-ALCL") not seen with other textured implants. Breast implants are medical devices that are implanted under the breast tissue to increase breast size or replace breast tissue that has been removed. Tissue expanders are a type of inflatable breast implant which stretches skin and muscle to make room for a permanent implant in the future. Tissue expanders are often used in breast reconstruction surgeries. BIA-ALCL is a serious cancer and can be fatal, especially if not diagnosed early or promptly treated. The FDA determined the risk of developing BIA-ALCL was six times higher with Allergan's BIOCELL textured implants when compared with textured implants from other manufacturers, the lawsuit says. On July 30, 2019, Allergan announced it has created a BIOCELL Replacement Warranty for all customers that currently have BIOCELL textured implants ("the Warranty"). The Warranty provides that Allergan will provide Allergan smooth implants to replace the BIOCELL textured implants, the lawsuit says. However, Allergan will not provide any surgical fee assistance or reimbursement for the surgery to remove the BIOCELL textured implants and replace them with Allergan smooth implants. The Warranty will run for 24 months, until July 24, 2021, and will apply only to revision surgeries on or after the date of the FDA's recall, July 24, 2019. In Allergan's recall statement, the FDA stated there are 573 cases of BIA- ALCL worldwide. Of those 573 cases, 33 people have died as a result of BIA-ALCL. The products affected by the FDA's recall are as follows: Style Allergan Natrelle Saline-Filled Breast Implants; Allergan Natrelle Silicone-Filled Textured Breast Implants; Natrelle 410 Highly Cohesive Anatomically Shaped Silicone Filled Breast Implants; and Allergan tissue expanders that have BIOCELL texturing originally cleared as: Natrelle 133 Plus Tissue Expander (K143354) and Natrelle 133 Tissue Expander with Suture Tabs (K102806). As a result of Allergan's conduct, including refusal to pay for the removal of the recalled BIOCELL implants and the increased risk of developing BIA-ALCL, the Plaintiff contends she will be forced to expend substantial amounts of money for surgical costs associated with removal of the BIOCELL Recalled Implants and lost opportunity costs associated with post-surgery recovery time. The Ploeger case has been consolidated in MDL 2921, RE: ALLERGAN BIOCELL TEXTURED BREAST IMPLANT PRODUCTS LIABILITY LITIGATION. The Plaintiff is a patient, who had Allergan's BIOCELL breast implants implanted into her body. Evidence has emerged over time that these implants cause a form of cancer known as Breast- Implant Associated Anaplastic Large Cell Lymphoma (BIA-ALCL). Allergan manufactures and sells BIOCELL saline-filled and silicone-filled breast implants and tissue expanders "BIOCELL" or "BIOCELL textured implants").[BN] The Plaintiff is represented by: Virginia M. Buchanan, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 South Baylen Street (32502) P. O. Box 12308 Pensacola, FL 32591 Telephone: (850) 435-7023 Facsimile: (850) 436-6023 E-mail: vbuchanan@levinlaw.com ANGLICARE: Class Action Mulled Over Newmarch House COVID Deaths --------------------------------------------------------------- Dominica Sanda, writing for Yahoo!News, reports that a class action against Anglicare is being considered after 19 residents died at its coronavirus-hit Newmarch House nursing home in Sydney. Family members have approached lawyers who allege Anglicare was negligent in its handling of the health crisis and breached its duty of care to residents. Lisa Flynn from Shine Lawyers said COVID-19 was brought into the nursing home near Penrith by a staff member who was sick and should not have come to work. Ms. Flynn alleges Anglicare was ill-equipped to handle the outbreak. "We will be seeking compensation on behalf of the families of the deceased," she said in a statement. "The reality is lives would have been saved if Newmarch House had the right protocols and medical care procedures in place and adhered to them from the start." Ms. Flynn said family members want to know why their relatives weren't immediately taken to hospital after testing positive to COVID-19. NSW Health announced the COVID-19 outbreak at the western Sydney facility was over in mid-June with 37 residents and 34 staff catching the virus and 19 residents dying. Anglicare has been contacted for comment. [GN] ANGLICARE: Shine Lawyers Explores Class Action Over Health Crisis ----------------------------------------------------------------- The Weekly Source reports that Shine Lawyers -- which specialises in personal injury compensation claims -- has announced it is exploring a potential class action against Anglicare after 19 residents at the home died during its 65-day outbreak in April, May and June. National Practice Leader Lisa Flynn said Shine will allege the Not For Profit was negligent in its handling of the health crisis and breached its duty of care to residents. "Anglicare was ill-equipped to handle the outbreak of coronavirus at the facility and we will be seeking compensation on behalf of the families of the deceased," Ms Flynn said. "Grieving relatives want to know why their loved ones weren't immediately taken to hospital after testing positive so they could receive the high-level clinical care they needed." "They also want to know why they were kept in the dark as coronavirus spread through the facility and why staff were either not qualified or not properly supported to make critical decisions." "The reality is lives would have been saved if Newmarch House had the right protocols and medical care procedures in place and adhered to them from the start." Is the action likely to go ahead? Class actions require seven people to join the claim to get the action off the ground. Shine tells us that they had already been contacted by several eligible individuals and are currently taking calls through their call centre from other direct family members who will be contacted by their lawyers this week. Anglicare CEO Grant Millard has publicly stated that in hindsight, he would have preferred for COVID positive residents to have been transferred to hospital rather than treated in the home under NSW Health's ‘Hospital in the Home' program. The ABC Four Corners program ‘Like the Plague' alleged however that NSW Health had feared the virus spreading into the community and even threatened residents with fines or jail time if they tried to leave. [GN] ANTOJITOS MEXICANOS: Fails to Pay Minimum Wage, Ceballos Claims --------------------------------------------------------------- ERIKA AXELY CEBALLOS MURALLES, individually and on behalf of all others similarly situated, Plaintiff v. ANTOJITOS MEXICANOS DELI INC. (D/B/A ANTOJITOS MEXICANOS); ANTOJITOS MEXICANOS DELI II CORP.; CARMEN REYES; and ROBERTO DOE, Defendants, Case 1:20-cv-02859 (E.D.N.Y., July 29, 2020) seeks to recover from the Defendants unpaid minimum and overtime wages under the Fair Labor Standards Act. The Plaintiff Ceballos was employed by the Defendants as cook. Antojitos Mexicanos Deli Inc. owns, operates, or controls a Mexican restaurant, located at Brooklyn, NY, under the name Antojitos Mexicanos. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 APPLIED DATA: Derosier Suit Moved From Cir. Court to S.D. Florida ----------------------------------------------------------------- The class action lawsuit captioned as RYAN DEROSIER, on behalf of himself and all others similarly situated v. APPLIED DATA FINANCE, LLC d/b/a PERSONIFY FINANCIAL, Case No. CACE-20-008496 (Filed May 22, 2020), was removed from the Florida Circuit Court, Broward County, to the U.S. District Court for the Southern District of Florida on June 30, 2020. The Southern District of Florida Court Clerk assigned Case No. 0:20-cv-61299-DPG to the proceeding. The Plaintiff alleges that the Defendant charged an interest rate and late fee that exceed the rates allowed under the Florida Consumer Finance Act. Applied Data operates as a financial services firm. The Company offers loans and financing solutions to consumers.[BN] The Plaintiff is represented by: Jordan A. Shaw, Esq. Kimberly Slaven, Esq. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 S.E. 6th Street, Suite 2150 Ft. Lauderdale, FL 33301 Telephone: 954-595-6060 Facsimile: 954-989-7781 E-mail: jshaw@zpllp.com kslaven@zpllp.com - and - Dennis Card, Jr., Esq. Darren R. Newhart, Esq. CONSUMER LAW ORGANIZATION 721 US Highway 1, Suite 201 North Palm Beach, FL 33408 Telephone: 561 822-3446 Facsimile: 305 574-0132 E-mail: dennis@cloorg.com darren@clorrg.com Defendant Applied Data is represented by: Peter A. Hernandez, Esq. Barbara Fernandez, Esq. HINSHAW & CULBERTSON LLP 2525 Ponce de Leon Blvd., Fourth Floor Coral Gables, FL 33134 Telephone: 305-358-7747 Facsimile: 305-577-1063 ARIZONA: Diaz Sues Board of Regents, Seeks Tuition Fee Refund ------------------------------------------------------------- Chloe Diaz, on behalf of herself and other individuals similarly situated, Plaintiff, v. Arizona Board of Regents, Defendant, Case No. 20-cv-01126 (D. Ariz., June 8, 2020), seeks disgorgement of all amounts wrongfully obtained for tuition, fees, on-campus housing, and meals, injunctive relief including enjoining Arizona State University from retaining the pro-rated, unused monies paid for tuition, fees, on-campus housing and meals, reasonable attorney's fees, costs and expenses, prejudgment and post-judgment interest on any amounts awarded and such other and further relief as may be just and proper, refunds of all tuition fees paid on a pro-rata basis, together with other damages resulting from breach of contract and unjust enrichment. Arizona Board of Regents is the governing board for Arizona's public universities including Arizona State University where Diaz was enrolled as a full-time law student at Sandra Day O'Connor College of Law during the Spring 2020 semester. Arizona State University decided to close campus, constructively evict students, and transition all classes to an online/remote format as a result of the Novel Coronavirus Disease. Diaz claims to be deprived the benefits of in-person instruction, access to campus facilities, student activities and other benefits and services in exchange for which they had already paid fees and tuition. Arizona State University refused to provide reimbursement for the tuition, fees and other costs. [BN] Plaintiff is represented by: David J. McGlothlin, Esq. KAZEROUNI LAW GROUP, APC 2633 E. Indian School Road, Ste. 460 Phoenix, AZ 85016 Phone: (800) 400-6808 Fax: (800) 520-5523 Email: david@kazlg.com ASPEN HOME IMPROVEMENTS: Eder Slams Illegal Telemarketing Calls --------------------------------------------------------------- Nancy Eder, individually and on behalf of herself and all others similarly situated, Plaintiffs, v. Aspen Home Improvements Inc., Defendant, Case No. 20-cv-01306 (M.D. Fla., June 8, 2020), seeks statutory damages and any other available legal or equitable remedies for violations of the Telephone Consumer Protection Act. Aspen Home Improvements sells energy-efficient replacement windows, doors, siding and roofing in the Pennsylvania, Maryland and West Virginia areas. It utilizes prerecorded messages to place calls to unsuspecting consumers on their cellular telephones for the purpose of selling its goods and services. At no point in time did Eder provide them with her express written consent to be contacted using an automated dialer. Eder has been registered on the National Do Not Call Registry since April 26, 2005. [BN] Plaintiff is represented by: Seth M. Lehrman, Esq. EDWARDS POTTINGER, LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Tel: (954) 524-2820 Facsimile: (954) 524-2822 Email: Seth@epllc.com - and - Ignacio Hiraldo IJH LAW 1200 Brickell Ave. Suite 1950 Miami, FL 33131 Telephone: (786) 496-4469 Email: IJHiraldo@IJHLaw.com BAYER AG: To Pay $10 Billion to Settle Roundup Cancer Lawsuits -------------------------------------------------------------- Alicia Green of CancerHealth reports that in 2019, German pharmaceutical company Bayer AG disputed allegations that its popular weed killer Roundup--used by farmers, homeowners and groundskeepers--was linked to an increased risk for cancer, liver disease, birth defects and celiac disease. Bayer, which faced tens of thousands of claims, continued to sell the product without a warning label. Now, the company has agreed to pay more than $10 billion to settle its lawsuits and set aside funds for any future cases, The New York Times reports. Bayer acquired Roundup, the world's most commonly used pesticide, when it bought Monsanto, the weed killer's original manufacturer, two years ago. At the time, there were already cancer concerns—in 2015, the International Agency for Research on Cancer, part of the World Health Organization, declared glyphosate, the key ingredient in Roundup, a probable carcinogen. Lawsuits have centered on non–Hodgkin lymphoma. In 2018, a jury awarded $289 million to a school groundskeeper after finding that the glyphosate in Roundup caused his illness. In 2019, a jury ruled that Monsanto's Roundup contributed to another man's non–Hodgkin lymphoma, calling it a "substantial factor." In a third case in 2019, the jury agreed that Monsanto had to pay $2 billion to a couple who said using Roundup for decades caused both their non–Hodgkin lymphoma. The Times refers to the current deal as "among the largest settlements ever in U.S. civil litigation," covering an estimated 95,000 cases and including $1.25 billion for any impending future lawsuits from Roundup customers who might develop non–Hodgkin lymphoma. Some money from the $1.25 billion will also be used to establish an independent expert panel that will work to determine whether glyphosate causes cancer as well as the minimum dosage or exposure level considered dangerous. If glyphosate is found to be a carcinogen, Bayer will not be able to dispute this evidence in any future cases. That includes all future class action lawsuits. Separate agreements have been made with 25 law firms whose clients will receive varying sums of money, ranging from $5,000 to $250,000. However, 30,000 claims from plaintiffs who have yet to join the current settlement are still pending. Despite the settlement, Bayer stands behind its glyphosate-based herbicides, especially Roundup, and hasn't admitted any liability or wrongdoing. According to CEO Werner Bauman, the company agreed to pay up because it was "financially reasonable" and would result in an end to current and future litigation. "Our company is grounded in the well-being of our customers," Bauman said in a statement. "As a science-based company committed to improving people's health, we have great sympathy for anyone who suffers from disease, and we understand their search for answers. At the same time, the extensive body of science indicates that Roundup does not cause cancer and, therefore, is not responsible for the illnesses alleged in this litigation." [GN] BAYER: July 23 Preliminary Approval Hearing on Roundup Settlement ------------------------------------------------------------------ Amanda Bronstad, writing for Law.com, reports that one of the more controversial and critical parts of Bayer's $10 billion-plus settlements of Roundup cases is a separate deal to resolve future claims that--because it comes in a class action--faces judicial scrutiny and potential objections that may unravel the agreement. The class action settlement, which includes a $1.1 billion fund, is a key part of Bayer's strategy to cap its subsidiary Monsanto's Roundup litigation while keeping its product on store shelves. But, unlike the settlements that resolved 75% of the estimated 125,000 claims over Roundup, the class action settlement is subject to the Federal Rule 23 of Civil Procedure as well as the class action guidelines in the U.S. District Court for the Northern District of California, where Judge Vince Chhabria has to approve the agreement over any objections. And there could be objections. Some lawyers already have criticized the deal's creation of a science panel that would give the final say on whether Roundup causes non-Hodgkin lymphoma, ending the debate in the courts. The settlement also includes $150 million in attorney fees to three firms that filed the class action last year. Chhabria has set a July 23 hearing on preliminary approval. In a conference call, Bill Dodero, Bayer's global head of litigation, said he was "confident" that the science panel in the class action settlement would find no link between Roundup and non-Hodgkin lymphoma. "We want the discussion about science," he said. "And that's what this whole settlement is meant to do: return the conversation to science. We think that's where the parties' debate is best served." The settlement, which resolves the claims of individuals who haven't even sued yet, gives finality to Bayer, which has stood by the safety of Roundup and has no plans to withdraw it from the market. "This is absolutely Bayer's best attempt at trying to buy some sort of a peace here and bring this at least as much closure as you can get with a product still on the market," said Amy Alderfer, of Cozen O'Connor, who is following the Roundup litigation. "If you're going to continue to sell this product, and continue to sell it without a warning on it, I think it's actually very interesting and creative to try to do this—to box this in in some way and put these parameters on this." Under the settlement, a notice program "unprecedented in scope and saturation," according to Elizabeth Cabraser, of Lieff Cabraser Heimann & Bernstein, lead plaintiffs counsel for the class action settlement, would reach out to a potential class of up to 125,000 in the United States and Mexico, most of whom are agricultural workers who regularly use Roundup. The class includes those diagnosed with cancer and those who have not. The settlement's fund includes between $100 million and $250 million toward diagnostic testing to what Cabraser referred to as a "medically underserved population" and at least $650 million for financial assistance grants ranging from a few thousand dollars to $35,000. It also includes $25 million to $75 million in research funds. "The class settlement for this group is an effort to provide a practical alternative in real time and to make Monsanto pay for it," said Cabraser. "It's not a compensatory damages fund. It's a fund that provides diagnostic services, needs-based payments, while class members are waiting for the science panel to make determinations." But the most controversial element is the science panel, made up of five experts selected by consent by both sides, which would determine general causation for all future lawsuits, rather than have judges and juries decide whether glyphosate causes non-Hodgkin lymphoma. After that process, estimated to take four years, Bayer would have a binding decision that could halt future lawsuits. "You're hoping, more than hoping, betting on the fact that this science panel will at the end of the day find that glyphosate doesn't cause cancer," said Alderfer. If the science panel finds a link, however, class members could file their lawsuit but only for compensatory damages, not for punitive damages or medical monitoring. Not everyone is on board with the idea. Robin Greenwald, of Weitz & Luxenberg, co-lead counsel in the multidistrict litigation who settled her firm's cases, said she had "serious concerns about that proposed class." "Seven courts found the science sufficiently reliable based on methodologically sound methods of evaluation to be admissible in a court to determine whether general causation is met," she said, including those that oversaw trials ending in three verdicts totaling nearly $2.4 billion (Bayer has appealed those awards). Potential objections are important to the survival of the deal, which includes a provision in which Bayer would back out if a certain percentage of class members, submitted under seal, opt out. Cabraser acknowledged the criticism but noted that the findings of other judges were not binding, and experts are expensive. Another provision of the settlement provides $150 million in attorney fees to lawyers including Cabraser and others at her San Francisco firm, as well as William Audet of San Francisco's Audet & Partners and James Dugan, of The Dugan Law Firm in New Orleans. The firms have not yet filed their motion for fees, which are in addition to, and not part of, the $1.1 billion settlement fund. But Cabraser said the fees, held in an escrow account, would include work needed over the next four years and paid over that period. "We negotiated that with Monsanto after we had reached agreement on the essential terms of the class on settlement, and we will explain to the court the work that will be required to be done over the life of the program," she said. [GN] BROADSTAFF LLC: Alexander Labor Suit Seeks Unpaid Overtime Pay -------------------------------------------------------------- Daniel Alexander, individually and on behalf of all others similarly situated, Plaintiff, v. BroadStaff, LLC and Crown Castle Fiber LLC, Defendants, Case No. 20-cv-01823 (S.D. Tex., May 26, 2020), seeks to recover unpaid overtime and other damages for violation of the Fair Labor Standards Act. BroadStaff is a specialized staffing firm that supplies talent to the Technology and Telecommunications Industries while Crown is a technology and telecommunications provider that services various industries across the United States. BroadStaff has entered into staffing contracts in Texas with Crown to provide workers where Alexander worked as a Construction Manager from approximately March 2016 until June 2018. He claims to be paid the same hourly rate for all hours worked, including those in excess of 40 hours in a single workweek and denied overtime for hours worked in excess of 40 in a workweek. [BN] Plaintiff is represented by: Andrew W. Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com BROOKDALE SENIOR: Frank Cruz Law Firm Reminds of Aug. 24 Deadline ----------------------------------------------------------------- The Law Offices of Frank R. Cruz on June 30 announced that a class action lawsuit has been filed on behalf of persons and entities that purchased or otherwise acquired Brookdale Senior Living Inc. ("Brookdale" or the "Company") (NYSE: BKD) common stock between August 10, 2016 and April 29, 2020, inclusive (the "Class Period"). Brookdale investors have until August 24, 2020 to file a lead plaintiff motion. On April 30, 2020, Nashville Business Journal reported that a proposed class action lawsuit had been filed against Brookdale, accusing the Company of, among other things, purposeful "chronically insufficient staffing" at its facilities in an effort to meet financial benchmarks since at least April 24, 2016. According to the lawsuit, the Company misinformed both residents and their families in promising to provide daily living services and basic care. The lawsuit also claims that the proposed class of plaintiffs "have not received the care and services they paid for." On this news, the Company's share price fell $0.56 per share, or over 15%, over two trading sessions, to close at $3.12 per share on May 1, 2020. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Brookdale's financial performance was sustained by, among other things, the Company's purposeful understaffing of its senior living communities; (ii) the foregoing conduct subjected Brookdale to an increased risk of litigation and, once revealed, was foreseeably likely to have a material negative impact on the Company's financial results and reputation; (iii) as a result, the Company's financial results were unsustainable; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. If you purchased Brookdale securities during the Class Period, you may move the Court no later than August 24, 2020 to ask the Court to appoint you as lead plaintiff. To be a member of the Class 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. If you purchased Brookdale securities, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Frank R. Cruz, of The Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles, California 90067 at 310-914-5007, by email to info@frankcruzlaw.com, or visit our website at www.frankcruzlaw.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 The Law Offices of Frank R. Cruz, Los Angeles Frank R. Cruz, 310-914-5007 fcruz@frankcruzlaw.com www.frankcruzlaw.com [GN] BROOKDALE SENIOR: Schall Law Firm Reminds of August 24 Deadline --------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on June 30 announced the filing of a class action lawsuit against Brookdale Senior Living Inc. ("Brookdale" or "the Company") (NYSE: BKD) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between August 10, 2016 and April 29, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before August 24, 2020. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Brookdale sustained its financial performance throughout techniques such as intentionally understaffing its senior living communities. These techniques created a larger risk of litigation and would impact its financial performance when revealed. The Company's financial performance was unsustainable. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Brookdale, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics Contacts The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] C&L MAINTENANCE: Fails to Pay Minimum & OT Wages, O'Malley Claims ----------------------------------------------------------------- The case, ALLEN O'MALLEY, on his own behalf and on behalf of those similarly situated, Plaintiff v. C&L MAINTENANCE, INC. d/b/a CLM MIDWEST, Defendant, Case No. 3:20-cv-00571 (N.D. Ind., July 6, 2020) arises from Defendant's alleged violation of the Fair Labor Standards Act. Plaintiff worked for Defendant as an hourly rate Service Technician. According to the complaint, Plaintiff log his hours of work through a time-tracking app as per Defendant's requirement to its Service Technicians. Additionally, Plaintiff worked through his lunch most days, yet Defendant automatically deducted a 30-minute lunch break from Plaintiff's time report for each day. As a result, Defendant failed to fully pay minimum wage and overtime wages to Plaintiff pursuant to the FLSA. C&L Maintenance, Inc. d/b/a CLM Midwest provides retail maintenance and repair services and construction management in the Midwest. [BN] The Plaintiff is represented by: Jason R. Ramsland, Esq. RAMSLAND LAW 17 S. 6th Street, Suite X Box 12 Lafayette, IN 47901 Tel: 765-267-1240 Email: Jason@rams.land CANADIAN HOCKEY: Class Action May Take Years to Get Resolved ------------------------------------------------------------ Ryan Dixon, writing for Sportsnet, reports that on June 18, a statement of claim was issued against the three leagues that comprise the Canadian Hockey League, the CHL itself and the 60 teams that compete under the CHL banner. The statement of claim was filed on behalf of the representative plaintiffs, Dan Carcillo and Garrett Taylor. Carcillo was a member of the Ontario Hockey League's Sarnia Sting in 2002-03 and Taylor played for the Alberta-based Lethbridge Hurricanes in the Western Hockey League in 2008-09. The statement of claim alleges disturbing acts related to hazing and bullying, including sexual, physical and mental abuse. None of the allegations have been proven in court. In the aftermath of the filing, three people who were also members of the 2002-03 Sting with Carcillo have spoken publicly to corroborate the claims. Dan Fritsche, Ryan Munce and David Pszenyczny have all told their stories of alleged abuse to Ken Campbell of The Hockey News or The Athletic's Aaron Portzline. A fourth person, Brad Hammett, has come forward and detailed a similar story of purported abuse to Rick Westhead of TSN. Hammett played for the Montana-based Billings Bighorns of the WHL in 1981-82. On June 26, the CHL released a statement indicating it would be forming an independent review panel to "thoroughly review the current policies and practices in our leagues that relate to hazing, abuse, harassment and bullying and the allegation that players do not feel comfortable reporting behaviours that contravene these policies." We are at the start of a civil action that figures to play out over the course of the coming months and years, especially given there are four leagues and 60 teams listed on the statement of claim. "You've got so many defendants in this lawsuit, it's going to be like herding cats," said Chris Blom, a civil litigation lawyer and partner with the Toronto-based firm Miller Thomson LLP (which is not involved in the case). Blom helped address a handful of things people should know or gain a greater understanding of related to this case. The various defendants will deliver what is known as a 'notice of intent to defend' to identify the lawyers acting for each of them. A case management judge will likely be appointed to deal with the procedural issues throughout the action. Once that happens, the next big step will be a motion for the certification of the action under a law known as the Class Proceedings Act of Ontario. The plaintiffs must convince the judge hearing the motion that they have what is known as a 'cause of action' or a right to make the claims they have made in the statement of claim. They must also convince the judge that the claims of the class members or the defences raise common issues, and that a class proceeding would be the preferable procedure for the resolution of those common issues. If the action is certified as a class action, each person who falls within the class--identified in the claim as "all former and current players who play or played in any of the Leagues (sic) while under the age of 18"--will automatically become part of the class. That's important to establish because, as other players not listed as plaintiffs on the statement have come forward to tell their stories in recent days--either publicly or to the plaintiffs' lawyers--people often ask if they will be joining the class. If they were under 18 and played in the CHL, they're automatically included once it's certified. Once a class action certification order is issued, it has to be published in the media so that all persons who fit the definition of the class are aware of the action. "Everybody who falls within the class defined in the order will be embraced by the claim," Blom explained. "But those who wish to opt out can opt out. They can bring their own claim or just not be part of it." While the plaintiffs will push toward certification as quickly as possible, it could take upwards of a year to determine that outcome--especially given all the parties involved on the defence side. "If you only had one plaintiff and one defendant in a class action, you could do it in six months," Blom said. COVID-19 may add some further delay. Though these cases can be settled between the parties at any time, do not expect that here. No individual defendants are listed in the statement of claim. Though it says "coaches and team officials were aware of the Abuse (sic) and participated in it," it's worth noting that no individual is being directly sued. The plaintiffs' accusations are aimed at the larger institutions of the teams and leagues--the broader major junior hockey culture, if you will--not individuals. There's a tendency to look at accusations levelled in actions arising from events that took place 18 years ago in the case of Carcillo and 12 years ago in the case of Taylor and be dismissive of them because of some sense that societal norms were different then. Blom explained the argument, for lack of a better way of putting it, that "things were different then" does not persuade, especially in jury trials. What is seen as abuse now, was likely seen as abuse then. The trial is likely to be heard by a judge alone, and not a jury, because of the size of the case, the number of parties and the complexities involved. If a judge ultimately finds liability on the part of the teams or leagues, the next issue will be monetary damages. "The big fight might be over things like, [Player X] was going to get to the NHL but he didn't because he was abused," says Blom. "That's a big difference from a claim that says he would have been a teacher. Judges look upon it as the loss of a chance [and] there's a whole series of cases that lay out how you look upon it as a loss of a chance." That fight, if it happens at all, is likely years away, and is just one of the many issues that will come into play over the long arc of this dispute. [GN] CASPER SLEEP: Glancy Prongay Reminds of August 18 Deadline ---------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming August 18, 2020 deadline to file a lead plaintiff motion in the class action filed on behalf of Casper Sleep Inc. ("Casper" or the "Company") (NYSE: CSPR) securities pursuant and/or traceable to the Company's initial public offering conducted on or around February 7, 2020 (the "IPO"). If you suffered a loss on your Casper 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 https://www.glancylaw.com/cases/casper-sleep-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. In February 2020, the Company completed its initial public offering ("IPO"), in which it sold 8.35 million shares of common stock for $12 per share. On April 21, 2020, Casper announced that it was decreasing the size of its global operations and sales team, as well as completely winding down its European operations, amounting to a loss of 21% of its workforce. The Company also stated that Gregory Macfarlane had resigned from his positions as Chief Financial Officer and Chief Operating Officer. On May 12, 2020, the Company announced its first quarter 2020 financial results, reporting a net loss of $34.5 million (a 98% increase year over year) and an adjusted EBITDA loss of $22.9 million (a 60% increase year over year). Since the IPO, Casper's share price has traded as low as $6.37 per share, or about 47% below the $12 IPO price. The complaint alleges that defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose: (1) that Casper's profit margins were actually declining, rather than growing; (2) that Casper was changing an important distribution partner, costing it 130 basis points of gross margin in the first quarter of 2020 alone; (3) that Casper was holding a glut of old and outdated mattress inventory that it was selling at steeply discounted clearance prices, further impairing the Company's profitability; (4) that Casper was suffering accelerating losses, further placing its ability to achieve positive cash flows and profitability out of reach; (5) that Casper's core operations were not profitable, but were causing the Company to suffer over $40 million in negative cash flows during the first quarter of 2020 alone and doubling its quarterly net loss year over year; (6) that as a result of the foregoing, Casper's ability to achieve profitability, implement its growth initiatives, and expand internationally had been misrepresented in the Offering Documents, as the Company needed to shutter its European operations, halt all international expansion, jettison over one fifth of its global corporate workforce, and significantly curtail new store openings in order to avoid an imminent cash and liquidity crisis, let alone achieve positive operating cash flows; and (7) that as a result of the foregoing, Casper's revenue growth rate was not sustainable and had not positioned the Company to achieve profitability. If you purchased or otherwise acquired Casper securities pursuant and/or traceable to the IPO, you may move the Court no later than August 18, 2020 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. [GN] CASPER SLEEP: Portnoy Law Firm Reminds of August 18 Deadline ------------------------------------------------------------ The Portnoy Law Firm advises investors that a class action lawsuit has been filed on behalf of Casper Sleep, Inc. ("Enphase" or the "Company") (CSPR) securities who purchased or otherwise acquired publicly traded Casper securities in or traceable to the Company's public offering conducted on or around February 7, 2020 (the "IPO"). Investors have until August 18, 2020 to file a lead plaintiff motion. The lawsuit alleges that the Company misled investors regarding the strength of Casper's global operations. Casper went public in February 2020, selling over 8 million shares at $12 a share. Just a few weeks later, in April 2020, the Company announced that Casper would decrease its global operations, including a dramatic 21% reduction to its global operations and sales team, and close its European operations. Casper also disclosed that Gregory Macfarlane had resigned from his positions as Chief Financial Officer and Chief Operating Officer. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims against caused by corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes. Lesley F. Portnoy, Esq. Admitted CA and NY Bar lesley@portnoylaw.com 310-692-8883 www.portnoylaw.com [GN] CEPHALON INC: $66M Settlement in Vista Suit Gets Final Approval --------------------------------------------------------------- In the case, VISTA HEALTHPLAN, INC., et al., Plaintiffs, v. CEPHALON, INC., et al., Defendants, Civil Action No. 2:06-cv-1833 (E.D. Pa.), Judge Mitchell S. Goldberg of the U.S. District Court for the Eastern District of Pennsylvania granted the End-Payor Plaintiffs' Motion for Final Approval of Class Action Settlements and Memorandum of Law in Support. The Court finds that the Settlements, which include cash payments totaling $65,877,600 to be paid by the Defendants in exchange for, inter alia, dismissal of the litigation between the End-Payor Plaintiffs and the Defendants with prejudice and releases of certain claims filed or that could have been filed against the Defendants by the End-Payor Plaintiffs and the Settlement Classes, are fair, reasonable, and adequate in all respects, and in the best interests of the Settlement Classes. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and solely for the purpose of effectuating the Settlements, the Court finally certified the Settlement Classes defined as follows: a. State Antitrust/Consumer Protection Class: All persons or entities in Arizona, California, District of Columbia, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin who purchased Provigil and/or its generic equivalent intended for consumption by themselves, their families or their members, employees, plan participants beneficiaries or insureds between June 24, 2006 and Aug. 8, 2019. b. State Unjust Enrichment Class: All persons or entities in Alabama, Arizona, California, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin who purchased Provigil and/or its generic equivalent modafinil, intended for consumption by themselves, their families or their members, employees, plan participants, beneficiaries or insureds between June 24, 2006 and Aug. 8, 2019. The following persons or entities are excluded from the Settlement Classes: (i) the Defendants and their respective subsidiaries, affiliates, and employees; (ii) all governmental entities (except for government funded employee benefit plans); (iii) insured individuals covered by plans imposing a flat dollar co-pay that was the same dollar amount for generic as for brand drug purchases; (iv) insured individuals who purchased only generic modafinil (not branded Provigil) pursuant to a fixed co-pay applicable to generic drugs; (v) United Healthcare Services, Inc., including its subsidiaries; and (vi) fully-insured health plans, i.e., plans that purchased insurance from another third-party payor covering 100% of the plan's reimbursement obligations to its members. In addition, the Settling Health Plans ("SHPs") identified in Schedule A to the Cephalon Settlement are excluded from the Cephalon Settlement. Vista Healthplan, Inc., now known as Coventry Health Care of Florida, Inc., District Counsel 37 Health & Security Plan, Pennsylvania Employees Benefit Trust Fund, Pennsylvania Turnpike Commission, and Shirley Panebianco, are appointed as the representatives of the Settlement Classes. Pursuant to Rules 23(c)(1)(B) and 23(g), the Court, having considered the factors provided in Rule 23(g)(1)(A), finally appointed Spector Roseman & Kodroff, P.C., Criden & Love, P.A., and Kessler Topaz Meltzer & Check, LLP as the Co-Lead Counsel for the Settlement Classes. Based upon the foregoing, which takes into account each of the factors specified in Rule 23(e)(2), the Court finally approved the Settlements and the Plan of Allocation. The Parties are directed to promptly consummate and administer the Settlements in accordance with the terms of the Settlements. The Claims asserted by the Plaintiffs in the Action are hereby dismissed with prejudice and, except as provided for in the Settlements and therein, without costs. The Court approved the Releases in each Settlement Agreement as binding and effective as to all members of the Settlement Classes and permanently barring and enjoining such members of the Settlement Classes from asserting any Released Claims as set forth in each Settlement Agreement. The 18 Class Members listed in Exhibit "A" have requested exclusion from the Class Settlement. Based on the Declaration of Eric Miller dated Dec. 13, 2019 and Supplemental Declaration of Eric Miller, the Court holds that these Class Members have properly excluded themselves (which includes one late-filed exclusion), and therefore they will not be governed by the Releases included in the Settlement Agreements or be subject in any way to the Order and Final Judgment. The Class Counsel are awarded an expense reimbursement in the amount of $2,663,468, together with a proportionate share of the interest thereon from the date the funds are deposited in the Settlement Escrow Accounts until payment of such reimbursement of costs and expenses, at the rate earned by the Settlement Funds. The expenses will be disbursed from the Settlement Funds in accordance with the terms of the Settlement Agreements and Plan of Allocation. For their prosecution of the litigation over the last 13 years, the Court awarded the Class Representatives the following incentive awards: (1) the Consumer Class Representative, Shirley Panebianco will receive $15,000 from the Settlement Fund; and (2) the Third-Party Class Representatives -- Vista Healthplan, District Council 37 Health & Security Plan, Pennsylvania Employees benefit Trust Fund, and Pennsylvania Turnpike Commission -- will each receive $50,000 from the Settlement Fund. The Court approved the release of claims as specified in the Settlements as binding and effective as to all the members of the Classes and permanently bars and enjoins such members of the Classes from asserting any Released Claims. The Court further directed that, for a period of five years, the Clerk of the Court will maintain the record of those members of the Classes who have excluded themselves from the Classes and that a copy of such records will be provided to the Defendants. Accordingly, the Clerk of Court is expressly directed to immediately enter this Judgment in the Action, which Judgment will be final and appealable. The Clerk of Court will mark the case closed. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/UbXlna from Leagle.com. CHINA XD PLASTICS: Sears Challenges Proposed Sale to Faith Dawn --------------------------------------------------------------- Aaron Sears, on behalf of himself and those similarly situated v. CHINA XD PLASTICS COMPANY LIMITED, JIE HAN, TAYLOR ZHANG, LINYUAN ZHAI, HUIYI CHEN, GUANBAO HUANG, and QINGWEI MA, Case No. 1:20-cv-05156 (S.D.N.Y., July 6, 2020), arises from the Defendants' efforts to sell the Company to Faith Dawn Limited and Faith Horizon Inc. The lawsuit is brought on behalf of the Plaintiff and all other public stockholders of China XD Plastics Company Limited, against China XD and the Company's Board of Directors, for violations of the Exchange Act and for breaches of fiduciary duty as a result of the Defendants' efforts to sell the Company to Faith Dawn Limited ("Parent") and Faith Horizon Inc. ("Merger Sub") (collectively with Parent, "Faith Dawn") as a result of an unfair process for an unfair price, and to enjoin the proposition to take the Company off the NASDAQ and become a privately owned company (the "Proposed Transaction"). Significantly, the Plaintiff notes, Engineering Plastics Company Limited, a corporation wholly owned by Defendant and Company Chairman and CEO, Jie Han, beneficially owns approximately 50.1%, of the Company's outstanding Common Stock. Through Engineering Plastics Company Limited, Han controls shares of Company's Class A Common Stock and Class B Common Stock representing approximately 70% of Company's total voting power. In addition Faith Dawn is also wholly owned by Han. The terms of the Proposed Transaction were memorialized in a June 15, 2020 filing with the Securities and Exchange Commission on Form 8-K attaching the definitive Agreement and Plan of Merger. Under the terms of the Merger Agreement, Faith Dawn and will acquire all of the outstanding shares of common stock of the Company not already beneficially owned by Faith Dawn. China XD public stockholders will receive, in exchange for each share of China XD common stock they own, $1.20 in cash per China XD share. Thereafter, on June 22, 2020, China XD filed a Preliminary Proxy Statement on Schedule PREM14A with the SEC in support of the Proposed Transaction. The Plaintiff contends that the Proposed Transaction is unfair and undervalued for a number of reasons. Significantly, the Preliminary Proxy describes an insufficient process in which the Board rushed through an inadequate "sales process" in which the only end goal was a sale to Faith Dawn and Han, with no market check for potentially interested third parties conducted at any point. Such a sales process, or lack thereof, clearly indicates that the only end-goal acceptable to the Defendants was an acquisition of China XD by Faith Dawn and Han, the Plaintiff adds. In approving the Proposed Transaction, the Individual Defendants have breached their fiduciary duties of loyalty, good faith, due care and disclosure by, inter alia, (i) agreeing to sell China XD without first taking steps to ensure that the Plaintiff and Class members would obtain adequate, fair and maximum consideration under the circumstances; and (ii) engineering the Proposed Transaction to benefit themselves and/or Faith Dawn without regard for China XD's public stockholders, the Plaintiff asserts. Accordingly, this action seeks to enjoin the Proposed Transaction and compel the Individual Defendants to properly exercise their fiduciary duties to China XD stockholders. According to the complaint, it is clear that the Proposed Transaction was engineered by Han to gain complete control over the Company by any means necessary, a goal which, as the Preliminary Proxy reveals, he has had since at least 2017. In violation of Federal Securities laws and in further violation of their fiduciary duties, the Defendants caused to be filed the materially deficient Preliminary Proxy on June 22, 2020 with the SEC in an effort to solicit stockholders to vote their China XD shares in favor of the Proposed Transaction. The Preliminary Proxy is materially deficient, deprives China XD's stockholders of the information they need to make an intelligent, informed and rational decision of whether to vote their shares in favor of the Proposed Transaction, and is thus in breach of the Defendants fiduciary duties. Absent judicial intervention, the Proposed Transaction will be consummated, resulting in irreparable injury to Plaintiff and the Class, says the complaint. This action seeks to enjoin the Proposed Transaction or, in the event the Proposed Transaction is consummated, to recover damages resulting from the breaches of fiduciary duties by the Defendants. The Plaintiff has been a China XD stockholder. China XD engages in the research, development, manufacture, and sale of modified plastics primarily for automotive applications in the People's Republic of China, and Dubai, the United Arab Emirates.[BN] The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Boulevard, First Floor Mineola, NY 11501 Phone: 516.741.4977 Facsimile: 516.741.0626 Email: esmith@brodskysmith.com CIEE INC: Zhao Suit Removed From Superior Court District of Maine ----------------------------------------------------------------- The case captioned Annie Zhao, individually and on behalf of all others similarly situated v. CIEE INC., COUNCIL ON INTERNATIONAL EDUCATIONAL EXCHANGE INC., Case No. PORSC-CV-20-00243, was removed from the Maine Superior Court, Cumberland County, to the U.S. District Court for the District of Maine on July 6, 2020. The District Court Clerk assigned Case No. 2:20-cv-00240-LEW to the proceeding. The nature of suit is stated as Other Contract for Contract Dispute. CIEE is a nonprofit study abroad and intercultural exchange organization that transforms lives and builds bridges between individuals and nations by sponsoring a wide variety of opportunities for the exchange of ideas and experiences.[BN] The Plaintiff is represented by: Alexandra A. Harriman, Esq. Gregory Paul Hansel, Esq. Randall B. Weill, Esq. Sigmund D. Schutz, Esq. PRETI, FLAHERTY One City Center P.O. BOX 9546 Portland, ME 04112-9546 Phone: (207) 791-3000 Fax: (207) 791-3111 Email: aharriman@preti.com ghansel@preti.com rweill@preti.com sschutz@preti.com The Defendants are represented by: Chad W. Higgins, Esq. BERNSTEIN SHUR 100 Middle Street, West Tower P.O. BOX 9729 Portland, ME 04104-5029 Phone: (207) 774-1200 Email: chiggins@bernsteinshur.com CLAYTON COUNTY, GA: Civil Rights Groups Suing Sheriff's Office -------------------------------------------------------------- Leon Stafford of the Atlanta Journal-Constitution reports that civil rights groups filed a federal lawsuit against the Clayton County Sheriff's Office, alleging the department is failing to protect people from COVID-19 in the south metro Atlanta community's jail. The legal action, filed as putative class action in U.S. District Court for the Northern District of Georgia, said Sheriff Victor Hill and his staff have not done enough to protect detainees at the Clayton County Jail. The lawsuit was filed on behalf of four people incarcerated at the jail. The groups said that according to the Georgia Department of Public Health, 45 people at the jail had tested positive for the coronavirus--including 13 members of jail staff--as of June 11. "People detained in jails are particularly vulnerable to COVID-19 because of the close spaces in which they are confined, the shared use of facilities without adequate sanitation or effective personal protective equipment, and the absence of adequate medical care to address or treat the spread of infection," said Kosha Tucker, staff attorney for the American Civil Liberties Union of Georgia, one of the group's filing the lawsuit. Alan Parker, a legal advisor for the Clayton Sheriff's Office, denied the jail faced a COVID-19 outbreak. "As the legal advisor for the Clayton County Sheriff's Office, I have reviewed the allegations in the lawsuit, and we will vigorously defend against this lawsuit in a court of law, not in the press," he said in a post to the Sheriff's Office Nixle webpage. The other organizations suing the Sheriff's Office are the Southern Center for Human Rights and the ACLU's national office. The Southern Center and the ACLU of Georgia had filed an earlier lawsuit in May against the sheriff's office for allegedly violating open records laws. The groups said the jail did not provide COVID-19 test numbers as requested. [GN] CLEARVIEW AI: Thornley Suit Moved From Cir. Ct. to N.D. Illinois ---------------------------------------------------------------- The class action lawsuit captioned as MELISSA THORNLEY, DEBORAH BENJAMIN-KOLLER, and JOSUE HERRERA, individually and on behalf of all others similarly situated v. CLEARVIEW AI, INC., Case No. 20-2916 (Filed March 19, 2020), was removed from the Illinois Circuit Court, Cook County, to the U.S. District Court for the Northern District of Illinois on June 30, 2020. The Northern District of Illinois Court Clerk assigned Case No. 1:20-cv-03843 to the proceeding. The Plaintiffs allege that Clearview has violated the Illinois Biometric Information Privacy Act by allegedly profiting from the biometric information and biometric identifiers of Illinois residents without their permission. Clearview AI is an American technology company that provides facial recognition software, which is used by private companies, law enforcement agencies, universities and individuals.[BN] The Plaintiff is represented by: Daniel M. Feeney, Esq. Zachary J. Freeman, Esq. MILLER SHAKMAN LEVINE & FELDMAN LLP 180 North LaSalle Street, Suite 3600 Chicago, IL 60601 E-mail: dfeeney@millershakman.com zfreeman@millershakman.com - and - David S. Golub, Esq. Steven L. Bloch, Esq. Ian W. Sloss, Esq. SILVER GOLUB & TEITELL LLP 184 Atlantic Street Stamford, CT 06901 E-mail: dgolub@sgtlaw.com sbloch@sgtlaw.com isloss@sgtlaw.com - and - Kevin M. Forde, Esq. Brian P. O'Meara, Esq. Kevin R. Malloy, Esq. FORDE & O'MEARA LLP 111 West Washington Street, Suite 1100 Chicago, IL 60602 E-mail: kforde@fordellp.com bomeara@fordellp.com kmalloy@fordellp.com The Defendant is represented by: David P. Saunders, Esq. Howard S. Suskin, Esq. JENNER & BLOCK LLP 353 North Clark Street Chicago, IL 60654 Telephone: (312) 222-9350 E-mail: hsuskin@jenner.com dsaunders@jenner.com CO-DIAGNOSTICS: Kirby McInerney Reminds of August 17 Deadline ------------------------------------------------------------- The law firm of Kirby McInerney LLP reminds investors that a class action lawsuit has been filed in the U.S. District Court for the District of Utah on behalf of those who acquired Co-Diagnostics, Inc. ("Co-Diagnostics" or the "Company") (NASDAQ: CODX) securities during the period from February 25, 2020 through May 15, 2020. Investors have until August 17, 2020 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that the Company made materially misleading statements that its Covid-19 tests were 100% accurate--a staggering claim that appeared to set Co-Diagnostics apart from other competitors developing Covid-19 tests. On May 14, 2020, news outlets reported that Co-Diagnostics was reticent to participate in U.S.-based testing to verify its accuracy claims, casting doubt on Co-Diagnostics' claims of 100% accuracy. On this news, shares of Co-Diagnostics fell $1.29, or 5.5%, to close at $22.13 per share on May 14, 2020. On May 14, 2020, after the markets closed, financial news services began reporting that the U.S. Food and Drug Administration announced publicly that no Covid-19 test is 100% accurate, undermining Co-Diagnostics' claims about its tests' perfect accuracy. On this news, shares of Co-Diagnostics fell $5.06, or 22.9%, to close at $17.07 per share on May 15, 2020. If you acquired Co-Diagnostics securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, and whistleblower litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Kirby McInerney LLP Thomas W. Elrod, Esq. (212) 371-6600 investigations@kmllp.com www.kmllp.com [GN] COCA-COLA: Faces Class Action Over Treatment of Cows at Fair Oaks ----------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that Coca-Cola's fairlife milk products wrongfully claim that the milk in them comes from cows that were treated humanely, a new class action lawsuit says. A group of plaintiffs filed the case June 25 in Chicago federal court, claiming they bought fairlife products partly because the defendant made representations about how cows were treated in a farm collective. "But despite making these explicit Animal Welfare Promises, they were false, deceptive and misleading," the lawsuit says. "Defendants did not live up to those promises: several undercover investigations revealed widespread abuse at farms that source fairlife products--including at Defendants' 'flagship farm' Fair Oaks." Undercover video shows livestock suffering abuse at the hands of farm management, the lawsuit says. Cows were tortured, kicked, beaten, burned, force-fed and confined to tiny spaces, it says. About a year ago, the farm was accused of animal rights violations because of the undercover footage. [GN] COCONUT JOE'S: Mackie Sues Over Wrongful Dismissal, Unpaid Wages ---------------------------------------------------------------- JUSTIN MACKIE, individually and on behalf of all others similarly situated, Plaintiff v. COCONUT JOE'S IOP LLC, CJ OFFERING LLC, JOE PETRO, and CAITLIN WEST, Defendants, Case No. 2:20-cv-02562-DCN (D.S.C., July 9, 2020) is a class action against the Defendants for violations of the Families First Coronavirus Response Act and the Fair Labor Standards Act (FLSA). According to the complaint, the Defendants terminated the Plaintiff in retaliation to him for leaving work to seek a medical diagnosis because he was experiencing COVID-19 related symptoms. In addition, the Defendants compensated the Plaintiff and all other similarly situated servers less than the required statutory minimum wages by taking the tip credit under the FLSA. The Plaintiff was employed at the Defendants' restaurant as a server from July 2016 to May 2020. Coconut Joe's IOP LLC is a restaurant business located at 1120 Ocean Blvd., Isle of Palms, South Carolina. CJ Offering LLC is a restaurant business located at 1120 Ocean Blvd., Isle of Palms, South Carolina. [BN] The Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW 652 Rutledge Ave, Suite A Charleston, SC 29403 Telephone: (843) 588-5587 E-mail: marybeth@mullaneylaw.net COLONY CAPITAL: Bragar Eagel Reminds of Class Action Lawsuit ------------------------------------------------------------ Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of Colony Capital, Inc. (: CLNY). Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. Colony Capital, Inc. (: CLNY) Class Period: August 9, 2019 to May 7, 2020 Lead Plaintiff Deadline: July 27, 2020 Colony is a leading global investment management firm with assets under management of $55 billion. The Company manages capital on behalf of its stockholders, as well as institutional and retail investors in private funds, and traded and non-traded real estate investment trusts. On November 8, 2019, Colony announced its financial results for the third quarter of 2019. Among other results, the Company reported a GAAP net loss of $555 million, or $1.15 per share, which "notably included reductions of goodwill, real estate and provision for loan losses totaling $540.3 million . . . of which $387.0 million was attributable to the reduction of goodwill primarily as a result of the pending sale of the Company's industrial investment management business and related real estate portfolio, and the decrease in management fees from Colony Credit Real Estate, Inc. resulting from impairments related to its portfolio bifurcation." On this news, Colony's stock price fell $0.48 per share, or 8.76%, to close at $5.00 per share on November 8, 2019. Then, on May 8, 2020, Colony issued a press release announcing its financial and operating results for the first quarter of 2020. In the press release, Colony reported that its portfolio companies had defaulted on $3.2 billion of debt secured by hotels and healthcare-related properties and that Colony had received a notice of acceleration covering $780 million of the defaulted debt. On this news, Colony's stock price fell $0.08 per share, or 3.81%, to close at $2.02 per share on May 8, 2020. The Complaint, filed on May 26, 2020, alleges that throughout the Class Period defendants made materially false and misleading statements regarding the Company's business, operational, and compliance policies. Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (i) Colony's sale of its industrial real estate portfolio and the bifurcation of Colony Credit Real Estate's portfolio were foreseeably likely to negatively impact Colony's financial and operating results; (ii) certain of Colony's remaining portfolio companies carried unsustainable levels of debt secured by hotels and healthcare-related properties and were thus at significant risk of default; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. For more information on the Colony Capital class action go to: https://bespc.com/CLNY Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York and California. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Contact: Bragar Eagel & Squire, P.C. Melissa Fortunato, Esq. Marion Passmore, Esq. Tel: (212) 355-4648 E-mail: investigations@bespc.com Web site: http://www.bespc.com/[GN] COLUMBIA GAS: Agrees to Pay $56M in New Gas Explosion Settlement ---------------------------------------------------------------- Mike Pescaro of NBC Boston reports that a week after a federal judge sentenced a Massachusetts utility to pay $53 million for its role in the Merrimack Valley gas explosions, Massachusetts' attorney general has reached an agreement with the company for an even greater sum. Columbia Gas agreed to a $56 million settlement and will not be allowed to operate in the Bay State again, Attorney General Maura Healey announced. Healey's office has been investigating the utility since the fires and explosions that rocked Lawrence, Andover and North Andover in September of 2018. Columbia Gas, the utility behind the deadly gas explosions that rocked Lawrence, Andover and North Andover more than a year and a half ago was sentenced Tuesday to pay a $53 dollar fine and serve three years probation. "The Merrimack Valley gas explosions were heartbreaking and disruptive for the lives of thousands of families and businesses--many of whom are still recovering," Healey said in a statement. "Today's first-of-its-kind agreement ensures that Columbia Gas never does business in Massachusetts again, invests millions of dollars in the Merrimack Valley, and helps low-income customers pay their gas bills." The company's assets will be transferred to Eversource, which agreed to acquire them for $1.1 billion earlier this year, on Nov. 1, Healey's office said. The agreement requires Eversource to analyze potential strategies to decarbonize its natural gas operations. "This significant result will lay the groundwork for a safer natural gas system in the region and bring the benefits of our clean energy economy to more residents," Healey said. The settlement also establishes an energy relief fund, which will wipe out nearly $15 million in debt from the gas bills of approximately 26,000 low-income customers, according to Healey's office. "Today's announcement builds on our commitment to the full recovery of the communities, residents and businesses of the Merrimack Valley who were severely impacted by the tragic 2018 gas explosions, and to improved pipeline safety throughout the Commonwealth," Gov. Charlie Baker said in a statement. Merrimack Valley Gas Explosion Settlement Payments Begin The first $70 million in settlement payments to people affected by a series of natural gas explosions in Massachusetts in 2018 was mailed July 3. The federal fine Columbia Gas was sentenced to last week is the largest ever imposed under the Pipeline Safety Act. Earlier this year, the company also settled a class action lawsuit for $143 million. The explosions on Sept. 13, 2018, left 18-year-old Leonel Rondon dead and 25 others injured. About 8,000 people were displaced after more than 100 homes burned. [GN] CONTEXTLOGIC INC: Sells No Prescription Contact Lenses, Britt Says ------------------------------------------------------------------ TIFFANY BRITT, individually and on behalf of all others similarly situated, Plaintiffs v. CONTEXTLOGIC, INC., Defendant, Case 3:20-cv-04333-DMR (N.D. Cal., June 29, 2020) is a class action on behalf of the Plaintiff and a class of persons who purchased contact lenses without a prescription from a licensed medical professional, from the Defendant's online and mobile application retail platform, Wish.com. According to the Plaintiff, the sale or distribution of contact lenses, even those that do not correct vision and are purely for cosmetic purposes ("plano contacts"), is prohibited by Federal and state law for persons and entities that are not licensed to sell, distribute, or facilitate the sale of contact lenses. Namely, it is prohibited for any person to offer contact lenses for sale without requiring the purchasers to present a valid prescription from a licensed medical professional. Defendant, through its online retail platforms, Wish.com, and its various mobile phone applications, has sold and continues to offer contact lenses for sale without being licensed to sell or distribute contact lenses, and without requiring or even warning potential purchasers that a valid prescription is required to purchase contact lenses. The Plaintiff was one such unsuspecting consumer, and purchased plano contact lenses from Wish.com without being prompted for a valid prescription prior to purchase. Indeed, the Defendant did not even advise consumers like the Plaintiff that they should seek to obtain a prescription for contact lenses prior to purchase. The Defendant, in its first party capacity, represents to consumers that it is prohibited for any merchant to sell contact lenses on its website. This representation made and published by the Defendant operates as a promise to the Plaintiff and Class members that Wish.com will protect consumers from the sale of contact lenses, among other prohibited items, on its platform. Wish.com, however, readily allows these "prohibited" contact lenses to be sold on its website in high quantities from invisible sellers, with complete indifference as to whether such sales violate state and federal regulations. ContextLogic, Inc., doing business as Wish, provides a social platform to discover, collect, and share products with friends. The Company helps merchants to reach customers, as well as enable users to personalize shopping and find the products. [BN] The Plaintiff is represented by: SCHNEIDER WALLACE COTTRELL KONECKY LLP Matthew S. Weiler, Esq. Ryan M. Hecht, Esq. 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: mweiler@schneiderwallace.com rhecht@schneiderwallace.com - and - Peter B. Schneider, Esq. William M. Hogg, Esq. 3700 Buffalo Speedway, Suite 960 Houston, TX 77098 Telephone: (713) 338-2560 Facsimile: (415) 421-7105 E-mail: pschneider@schneiderwallace.com whogg@schneiderwallace.com COOL CLOUDS: Faces Lara Suit Over Sale of Puff Bar E-Cigarettes --------------------------------------------------------------- RUTH LARA, Individually and as Guardian of her minor child J.S., on behalf of themselves and on behalf of those similarly situated v. COOL CLOUDS DISTRIBUTION, INC., UMAIS ABUBAKER, and SHAHID SHAIKH, Case No. 2:20-cv-08030 (D.N.J., June 30, 2020), seeks to enjoin the Defendants from offering, selling, delivering, or in any manner, providing or facilitating others to provide Puff Bar products unless and until Puff Bar obtains Premarket Approval or approved as a Modified Risk Tobacco Product under the Tobacco Control Act. According to the complaint, despite legislation banning fruit, mint, and dessert flavors in refillable cartridge-based e-cigarettes, the ban carved out an exemption for brands that are used once and thrown away. Puff Bar, a disposable e-cigarette that launched in 2019, has been the key beneficiary of the loophole. Puff bar is sleek, appealing, concealable, and exceptionally easy to use. Puff Bar is designed to deliver nicotine more efficiently than some earlier brands. Available in 25 different flavors, this e-cigarette is made for youth. The company built on its early success by adding a line of flavor pods called "Puff Krush," which are compatible with other e-cigarettes and further target the youth market. Even though e-cigarettes are unsafe for anyone under 26, Puff Bar heavily promotes and markets these products to young people, the Plaintiff contends. She alleges that Puff Bar preys on youth using themes that exploit young users' vulnerabilities to create and sustain nicotine addiction, all for financial gain, and without giving users any warnings about the serious risks of addiction and other serious injuries. Plaintiff J.S. was a target and victim of Puff Bar's conduct. As a result of Puff Bar's conduct, the Plaintiff and those similarly situated have been injured and seek redress. Puff Bar manufactures, designs, sells, markets, promotes and distributes Puff Bar disposable e-cigarettes and Puff Krush flavored tip add-on, among other things. Mr. Umais Abubaker is the Chief Executive Officer of Cool Clouds Distribution, Inc.[BN] The Plaintiff is represented by: Jeffrey L. Haberman, Esq. Scott P. Schlesginer, Esq. Jonathan R. Gdanski, Esq. SCHLESINGER LAW OFFICES, P.A. 1212 SE Third Avenue Ft. Lauderdale, FL 33316 Telephone: 954-467-8800 E-mail: jhaberman@schlesingerlaw.com scott@schlesingerlaw.com jgdanski@schlesingerlaw.com COSTCO WHOLESALE: Calif. Dist. Denies Venue Change in Rough Suit ---------------------------------------------------------------- In the case, MEGAN ROUGH, individually and on behalf of all similarly situated current and former employees of Defendants in the State of California, Plaintiff, v. COSTCO WHOLESALE CORPORATION, a Delaware Corporation; and DOES 1-50, inclusive, Defendants, Case No. 2:19-cv-01340-MCE-DB (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California denied the Defendant's Motion to Change Venue to the Central District of California under the "first-to-file rule" where the case Nevarez v. Costco Wholesale Corp., C.D. Cal. Case No. 2:19-cv-03454-SVW-Skx, is already pending. Plaintiff Megan Rough, individually and on behalf of all other similarly situated employees, filed a class action complaint against Costco in the Superior Court of California, County of Solano, for violations of the California Labor Code and the Industrial Welfare Commission Wage Orders. The Defendant subsequently removed the case to federal court pursuant to the Class Action Fairness Act (CAFA). The Plaintiff brings the present action on behalf of herself and all current and former non-exempt, hourly-paid employees who worked for the Defendant within California and who worked one or more closing shifts during the period from four years preceding the filing of the Complaint to final judgment. The Defendant employed the Plaintiff as a front-end associate in its warehouse store located in Woodland, California, from December 2017 to January 2018, and in another warehouse located in Vacaville, California, from March 2018 to April 2019. The Plaintiff alleges that she and other similarly situated employees continued to work after business hours at the Defendant's stores. More specifically, after the stores' doors were closed to customers and locked, the Defendant required the Plaintiff and the other similarly situated employees to clock out and then walk to a designated exit location. The employees then had to call and wait for a manager to meet them at the designated exit location. When the manager arrived, he or she would inspect the employees' bags for store merchandise. After checking the employees' bags, the manager would radio the stores' security guards to ensure the parking lot was safe before the exit doors were opened. According to the Plaintiff, employees were not relieved of their duties until several minutes after clocking out and were not compensated for the time they were on-duty and required to complete the exit security procedure. She defines two classes of similarly situated employees. First, the Plaintiff seeks to represent the Closing-Shift Class, which includes all current and former non-exempt employees who worked at the Defendant's warehouse stores and who worked one or more closing shifts at any time from four years prior to the filing of the Complaint to the present. Second, the Plaintiff seeks to represent a subclass of employees entitled the Waiting Time Penalties Subclass, which includes all members of the Closing-Shift Class whose employment with the Defendant ended at any time from three years prior to filing the Complaint to the present. The Complaint alleges the following claims under state law: (1) Failure to Pay Minimum and Regular Wages; (2) Failure to Pay All Overtime Wages; (3) Failure to Provide Accurate Wage Statements; (4) Failure to Timely Pay All Wages Due Upon Separation of Employment; and (5) Violation of California Business and Professions Code Sections 17200 et seq. Presently before the Court is the Defendant's Motion to Change Venue. The Nevarez action was filed well before the instant one, and the Plaintiff in that case pursues claims overlapping those brought in the Rought case. More specifically, the plaintiffs in Nevarez also sought to represent various classes of the Defendant's employees in pursuit of California wage and hour claims based on its bag-checking and closing-shift exit procedures. Given the similarity between that case and the case and between the relative classes of employees, the Defendant thus seeks to transfer the action so it may be heard in conjunction with Nevarez and the subsequently filed Mosley case. In the instance, Judge England holds that both the parties and the claims are substantially similar. That said, the court in Nevarez declined to certify a class and thereafter remanded the matter to state court on the basis that it consequently lacked jurisdiction under CAFA. In addition, the Mosley plaintiff has now voluntarily dismissed that action as well. Accordingly, there is very little to be gained by transferring the Rough action to a court that never reached the merits of the claims presented and no longer has any cases pending before it. The Defendant's Motion to Transfer is thus denied, Judge England ruled. A full-text copy of Judge England's April 21, 2020 Memorandum & Order is available at https://is.gd/FGsPFr from Leagle.com. CYTOMX THERAPEUTICS: Pomerantz LLP Reminds of July 20 Deadline -------------------------------------------------------------- Pomerantz LLP on June 29 disclosed that a class action lawsuit has been filed against CytomX Therapeutics Inc. ("CytomX" or the "Company") (CTMX) and certain of its officers. The class action, filed in United States District Court for the Northern District of California, and indexed under 20-cv-03432, is on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired CytomX securities between May 17, 2018, and May 13, 2020, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased CytomX securities during the class period, you have until July 20, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. CytomX was founded in 2008 and is headquartered in South San Francisco, California. CytomX operates as an oncology-focused biopharmaceutical company in the U.S. The Company develops a novel class of investigational antibody therapeutics based on its Probody technology platform for the treatment of cancer. CytomX's lead product candidates in the clinical stage include, among others, CX-072 and CX-2009. CytomX has been evaluating CX-072 in its "PROCLAIM" series clinical program for several years. For example, the PROCLAIM-CX-072-001 clinical trial was designed to assess the tolerability and preliminary antitumor activity of multiple doses of CX-072 as a monotherapy or as a combination therapy with ipilimumab (which Bristol-Myers Squibb Company markets under the brand name Yervoy) or vemurafenib (which Roche markets under the brand name Zelboraf) in patients with advanced, unresectable solid tumors or lymphoma. The Company also began conducting a Phase 2 clinical trial called PROCLAIM-CX-072-002, which was initiated in October 2019 and is an open-label, multi-center clinical trial evaluating CX-072 in combination with ipilimumab in patients with unresectable or metastatic melanoma. Likewise, CystomX had been evaluating CX-2009 under its own "PROCLAIM" brand clinical program. This program includes the PROCLAIM-CX-2009-001 clinical trial, which is a Phase 1/2 trial evaluating the tolerability and preliminary antitumor activity of CX-2009 as a monotherapy, which CytomX initiated in June 2017. This clinical program also proceeded in multiple parts-Parts A and A2, which are monotherapy dose escalation studies; and Part B, which is a Phase 2 expansion study of CX-2009 monotherapy at 7 mg/kg administered every three weeks in up to 40 patients with hormone receptor (ER, PR) positive, HER2 negative breast cancer, which Defendants announced in December 2019 based on the tolerability and activity data from Part A and A2 of the study. The complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about CytomX's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (i) CytomX had downplayed issues with CX-072's efficacy observed in the PROCLAIM-CX-072 clinical program; (ii) CytomX had similarly downplayed issues with CX-2009's efficacy and safety observed in the PROCLAIM-CX-2009 clinical program; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. On May 13, 2020, during after-market hours, CytomX made available abstracts for the Company's clinical presentations for CX-072 and CX-2009. Results from the PROCLAIM-CX-072 clinical program showed a response rate of 8.8%, compared to a response rate of 18.5% in patients receiving the combination of CX-072 and ipilimumab. Meanwhile, results from the PROCLAIM-CX-2009 clinical program showed "evidence" of clinical activity at doses at least 4 mg/kg 3x/week, but also suggested a significantly higher rate of serious or greater treatment-related toxicity to the eyes at dose equivalents at least 8 mg/kg 3x/week. Following the release of the foregoing data, CytomX's stock price fell $5.21 per share, or 36.08%, to close at $9.23 per share on May 14, 2020. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com [GN] DARKTRACE INC: $82.5K Settlement in Der-Hacopian Suit Has Prelim OK ------------------------------------------------------------------- In the case, NICHOLAS DER-HACOPIAN, Plaintiff, v. DARKTRACE, INC., Defendant, Case No. 18-cv-06726-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted the Plaintiff's unopposed motion for preliminary approval of class action settlement. The Plaintiff commenced the consumer class action against Defendant Darktrace alleging that it violated the Fair Credit Reporting Action ("FCRA"). As part of its employment application process, the Defendant requires consumer reports, known as background checks, to evaluate prospective employees. In July 2018, the Plaintiff applied for a job with the Defendant. At the Defendant's request, the Plaintiff agreed to its requirement that he authorize it, and a consumer reporting agency of its choosing, to perform a background check on him. The Plaintiff signed a document titled "Employee Authorization to Release Records." The Plaintiff alleges that the background check contained erroneous information, and the Defendant denied the Plaintiff employment based on the information in the report. As a result, the Plaintiff contends that he suffered financial and reputational harm. According to the Plaintiff, the Defendant violated the FCRA with these background checks by (1) including a release of future liability in the Authorization that it required employment applicants to sign authorizing a background check; and (2) using the background check to make an adverse employment decision without timely providing the prospective employee with a copy of the report and a summary of his or her rights under the FCRA. Section 1681b(b)(2) requires consumer report authorizations to consist solely of the disclosure that a consumer report may be obtained for employment purposes. And Section 1681b(b)(3) requires that in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action will provide to the consumer to whom the report relates a copy of the report and a written description of the consumer's rights under the FCRA. Based on those facts, the first amended complaint asserted two causes of action under Sections 1681(b)(2) and (b)(3) of the FCRA. The Plaintiff also sought to represent two classes of consumers based on each claim, defined as: a. All natural persons residing within the United States and its Territories regarding whom, beginning five years prior to the filing of the Complaint and continuing through the conclusion of the action, the Defendant procured or caused to be procured a consumer report for employment purposes using a written disclosure containing language substantially similar in form to the Employee Authorization to Release Records form provided to the Plaintiff; and b. All natural persons residing in the United States who (i) within five years prior to the filing of the Complaint, (ii) applied for employment with the Defendant, (iii) were the subject of a consumer report used by Defendant for employment purposes, (iv) were the subject of an adverse employment action by Defendant, and (iv) were not provided with a copy of the report and/or a written summary of their rights under the FCRA prior to the adverse action. The Plaintiff initially filed the action on Nov. 6, 2018, and amended it on Jan. 16, 2019. The parties reached a class settlement in principle in June 2019. With the assistance of Mr. Loeb, the parties entered into a settlement agreement on Nov. 21, 2019. The Plaintiff then filed the unopposed motion for preliminary settlement approval. On March 31, 2020, the Court requested supplemental briefing from the parties regarding the scope of the settlement release. It raised concerns that although the allegations were relatively narrow, the release of claims in the settlement agreement as then written was quite expansive. In response, the parties agreed to narrow the scope of the release of claims. They submitted a revised Settlement Agreement, and a revised Notice of Settlement The key terms of the parties' settlement are as follows: a. Class Definition: The Settlement Class is defined as: All applicants for employment with and employees of DarkTrace from whom DarkTrace obtained the individual's consent to procure a consumer report using a form document substantially similar to the authorization form signed by the Plaintiff; and procured or caused to be procured a consumer report, as defined by the FCRA, between Nov. 5, 2016 and the date the Final Judgment and Order approving this Settlement Agreement is entered by the Court. b. Settlement Benefits: The parties have agreed to both non- monetary and monetary relief. Moving forward, the Defendant will comply with the disclosure, authorization, and notice practices relating to obtaining consumer reports and the provision of consumer reports and summaries of rights referenced in Sections 1681b(b)(2)(A)(i) and 1681b(b)(3) of the FCRA. Additionally, the Defendant will pay each class member $300 in a settlement check mailed via regular mail to each class member. The checks will become void 60 days after the date of mailing. The payment is separate from any requested service award to the class representative; the class counsel's requested attorneys' fees; and the costs the Defendant will bear of serving notice to the class of the settlement and for administering the settlement payments. c. Cy Pres Distribution: Settlement checks that are undeliverable or not cashed within 60 days of mailing will be void and those funds will be donated to "a recipient to be agreed to by the parties." Following the hearing on the motion for preliminary approval, the parties submitted a supplemental declaration identifying the National Consumer Law Center ("NCLC") as the stipulated cy pres recipient. d. Class Notice: A third-party settlement administrator will mail the "Notice of Proposed Class Action Settlement and Hearing" to the class members by regular mail within 30 days of the Court's order preliminarily approving the settlement. The settlement administrator will make reasonable efforts to locate the class members whose notices are returned as undeliverable such as using the USPS National Change of Address database and commercially available address verification resources. e. Opt-Out Procedure: The deadline for a class member to submit a request for exclusion is 60 days after the date of the Notice mailing. Those wishing to do so may mail their request to the settlement administrator. f. Incentive Award: The Plaintiff as the class representative may apply for incentive award of no more than $15,000. g. Attorneys' Fees and Costs: The Class Counsel may file an application for attorneys' fees not to exceed $150,000. Because the parties reached settlement before Judge Gilliam considered the class certification in the case, he must determine whether provisional certification is appropriate. The Judge finds that it is appropriate under the circumstances. The total settlement amount of $82,500 constitutes approximately 30% of the $275,000 maximum statutory recovery for the approximately 275 class members. The settlement amount, given these risks, weighs in favor of granting preliminary approval. Having weighed the relevant factors, the Judge preliminarily finds that the settlement agreement is fair, reasonable, and adequate, and grants preliminary approval. The Judge also finds that the content of the proposed notices provides sufficient information about the case and thus conforms with due process requirements. A full-text copy of the District Court's April 17, 2020 Order is available at https://is.gd/Ljlddx from Leagle.com. DICK'S SPORTING: Underpays Employees, Carroll Claims ---------------------------------------------------- GALE CARROLL, on behalf of herself and the Class members, Plaintiffs v. DICK'S SPORTING GOODS, INC., Defendant, Case No. 1:20-at-00467 (E.D. Cal., July 2, 2020) is a class action complaint brought against Defendant for its alleged unlawful employment and business practices and policies in violations of the Fair Labor Standards Act and California Business and Professions Code. Plaintiff was employed by Defendant as a non-exempt cashier at Defendant's location in Fresno, California, from approximately November 2017 to June 2019. According to the complaint, Defendant regularly required Class member to work in excess of eight hours per day and/or 40 hours per week, but does not compensate them at an overtime rate for all of this work. The complaint asserts that Defendant failed to: -- pay Plaintiff and Class Members' minimum and overtime wages; -- record hours that Plaintiff and Class members worked off-the-clock -- provide timely and accurate itemized wage statements; and -- pay all wages due upon termination. Dick's Sporting Goods, Inc. owns, operates, and/or manages a chain of retail stores throughout the U.S. and California. [BN] The Plaintiff is represented by: Carolyn Hunt Cottrell, Esq. David C. Leimbach, Esq. Kristabel Sandoval, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Tel: (415) 421-7100 Fax: (415) 421-7105 Emails: ccottrell@schneiderwallace.com dleimback@schneiderwallace.com ksandoval@schneiderwallace.com DISCOVER BANK: Ward Plaintiffs Compelled to Arbitrate Claims ------------------------------------------------------------ In the case, Harold C. Ward, Carol Rogers, Michael Powell, Langdon Erwin, Antonio Bates, Clyde Smith, Tony McCallum, Benjamin Drakeford, Jon Rosier, Azilee Boykin, Bobby Wilson, Gene Moore, and Jeanette Vinson on behalf of themselves and all others similarly situated, Plaintiffs, v. Discover Bank, Defendant, Case No. 3:19-cv-02124-SAL (D. S.C.), Judge Sherri A. Lydon of the U.S. District Court for the District of South Carolina, Columbia Division, granted the Defendant's Motion to Compel Arbitration and to Dismiss. The Plaintiffs are 13 named South Carolina residents who have previously been sued by Defendant Discover in South Carolina state court. Bringing the action on behalf of themselves and all others similarly situated, the Plaintiffs allege that in the course of the foregoing state court litigation -- all of which Discover initiated to collect credit card debt -- Discover unlawfully included in its public filings Plaintiffs' personal information, including credit scores and partial social security numbers. They state causes of action under S.C. Code Ann. Section 39-1-90, for negligence, negligence per se, and invasion of privacy. On Aug. 28, 2019, Discover moved to dismiss the Complaint and to compel arbitration under the Federal Arbitration Act. It submits that the Plaintiffs' claims are subject to arbitration under the terms set forth in their respective Cardmember Agreements. In support of its motion, Discover submitted the declaration of Janusz Wantuch, the Director of Credit Risk Management for Discover Products Inc. Mr. Wantuch testified to the contents of each Plaintiff's Cardmember Agreement. The Court relies on Mr. Wantuch's testimony and the exhibits attached to his declaration to the extent the Plaintiffs have not submitted contradictory evidence or otherwise rebutted his assertions. First, the parties agreed that the Cardmember Agreements are to be governed by the laws of the State of Delaware and applicable federal laws. Each Plaintiff's Cardmember Agreement provides that use of the account or the associated credit card constitutes acceptance of the Cardmember Agreement. All the Plaintiffs used their Discover cards after receiving their Cardmember Agreement. In addition, each Cardmember Agreement contains an arbitration clause. With minimal variations that neither party claims are material, the arbitration clauses require arbitration of any claim "arising from or relating to" the Plaintiffs' accounts. Some of the Plaintiffs' Cardmember Agreements provide that claims challenging the validity or enforceability of the arbitration agreement, including the Class Action Waiver, however, are not to be arbitrated. The "Class Action Waiver" in each contract finally purports to prohibit litigating or arbitrating any claims as a representative or member of a class. Plaintiffs Powell, Erwin, Smith, and Boykin, unlike the nine other named Plaintiffs in the action, did not initially agree to arbitrate when they first became Discover cardholders. Their Cardmember Agreements do, however, contain the change of terms clause. Plaintiffs Powell, Erwin, Smith, and Boykin each received a notice of amendment to their Cardmember Agreements in 1999. The amendment added an arbitration clause to these Plaintiffs' respective Cardmember Agreements. Plaintiffs Powell, Erwin, Smith, and Boykin received instructions on how to opt-out of the arbitration amendment to their Cardholder Agreements, but none did so. All the Plaintiffs continued to use their accounts after receiving notice of the arbitration clause. Finally, the Plaintiffs' Cardmember Agreements state that arbitration is to be conducted either by the American Arbitration Association ("AAA") or JAMS in accordance with their respective rules and procedures. The rules applicable to arbitration before JAMS similarly state that jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought will be submitted to and ruled on by the Arbitrator. The Plaintiffs oppose compelled arbitration for the following reasons: (1) Discover's conduct does not "significantly relate" to its contracts with Plaintiffs such that the arbitration clauses do not cover the parties' present dispute; (2) Discover's conduct does not sufficiently involve interstate commerce, and the FAA accordingly does not apply; (3) with respect to Plaintiffs Powell, Erwin, Smith, and Boykin, the arbitration agreements are unenforceable because the arbitration clauses in their contracts were not contemplated by the Change in Terms clause and not supported by consideration; (4) the arbitration agreements are unconscionable; and (5) Discover waived its right to arbitrate by suing the Plaintiffs to collect debts rather than arbitrate these claims. Judge Lydon disagrees with these arguments. First, the parties agreed that questions of validity and enforceability are for a court to decide, i.e., whether, under general Delaware contract law, the parties agreed to arbitrate and whether any defenses to enforcement exist. By incorporating the AAA and JAMS rules, however, the parties agreed that disputes over interpretation of the scope of the arbitration clauses are to be determined by an arbitrator. Accordingly, the Court declines to rule on whether the parties' agreements purport to cover the dispute, finding the question properly reserved to arbitration. Second, the Court concludes that the transactions between the Plaintiffs and Discover relate to interstate commerce. This element requires that the contract between the parties "in fact involved interstate commerce" by implicating any part of the Congress' commerce-clause power. The Plaintiffs' argument is that Discover's alleged conduct described in the complaint does not relate to interstate commerce, therefore claims arising out of that conduct cannot be arbitrated. It misapprehends 9 U.S.C. Section 2. The statute contemplates only that the contract evidence a "transaction involving commerce," not that the "controversy arising thereafter" necessarily involve commerce. Because the underlying transactions in which the parties agreed to arbitrate relates to interstate commerce, the FAA applies. Third, although South Carolina choice of law rules will not give effect to choice of law clauses where application of foreign law violates public policy, the Court finds that the Plaintiffs have failed to establish any South Carolina public policy that disallows what is permitted by 5 Del. C. Section 952(a). The 1999 amendments to Plaintiffs Powell, Erwin, Smith, and Boykin's Cardmember Agreements are accordingly valid and enforceable under Delaware law, which the parties agreed would govern the Cardmember Agreements. And, assuming without deciding that the amendment must be supported by consideration, the parties' mutual obligation to submit to binding arbitration at the other's election is sufficient consideration to consummate a contract modification. The Court accordingly finds that Plaintiffs Powell, Erwin, Smith, and Boykin are bound by their Cardmember Agreements as amended and must submit their claims to arbitration. Fourth, the Plaintiffs' argument that the amendments are unconscionable is without merit in light of the foregoing standard. The Plaintiffs did have the ability to reject the arbitration terms: "Rejection of arbitration will not affect your other rights or responsibilities under your Cardmember Agreement." The contract provisions in the record do not appear so one sided or oppressive so as to make them unconscionable, and the Judge rejects this defense to enforcement. Fifth, the Plaintiffs do not provide any authority for the proposition that litigating one dispute effects a waiver of the contractual right to elect arbitration in a later dispute. In addition, the action was filed on June 20, 2019, in the Richland County Court of Common Pleas, and it was removed to the Court on July 29, 2019. Discover moved to compel arbitration and to dismiss the action on Aug. 28, 2019, two days after it answered Plaintiffs' Amended Complaint. The case does not present Discover's substantial utilization of the litigation machinery such that the Plaintiffs would be prejudiced in arbitration. Sixth, the parties to the action agreed to arbitrate their claims on an individual basis, and are properly compelled to do so. The parties explicitly agreed not to arbitrate any claims as a representative or member of a class. In addition, South Carolina courts have upheld this type of class action waiver. Finally, while the FAA provides that a court should stay proceedings while compelling arbitration of certain claims, the Fourth Circuit has instructed that when all of the issues presented in a lawsuit are arbitrable, dismissal is the proper remedy. Having found that the broad arbitration agreements at issue in this case encompass all claims against Discover, the case will be dismissed. For these reasons, Juge Lydon granted the Defendant's Motion to Compel Arbitration. The Plaintiffs' claims are compelled to arbitration on an individual basis, and the case is dismissed. A full-text copy of the District Court's April 21, 2020 Opinion & Order is available at https://is.gd/ks85FH from Leagle.com. DIVERSIFIED FINANCING: Collins Suit Transferred to N.D. Georgia --------------------------------------------------------------- The case captioned as Collins Asset Group, LLC v. Diversified Financing, LLC; Sonoqui, LLC; IRA Services Trust Company; Ferrum II, LLC; Provident Trust Group; Vantage Retirement Plans, LLC; Jeffrey Arnold; KATHERINE ARNOLD; RANDALL BAHJAT; JEFF BROWNE; TOM CHRISMAN; NEAL COLLINS; ERNESTO DIGIORDANO; David Ernest; DEBBIE EVANS; Evans Family Trust; William Fraser; SHERRIE GEORGE; FEI HAVENOR; Gerald Holmes; Marie Johnson; CATHY KAISER; JAMES KARG; JEANINE GORCHEN-KRASLEY; JAMES LAPPAS; VENETIA LAPPAS; Karen Lawrence; TRISH LAVECK; Richard Lester; ANG LI; HAROLD LIKEY; ARTHUR MARKS; PEGGY McCAULEY; John McCormick; MITCH McDONALD; TERRY McKNIGHT; JEFF MULLIS; Hanh Nguyen; Donna Peters; PIRRO PETI; Susan Pollinger; MARK POULSEN; WENDY PYNE; OLIVIA SAN MIGUEL; LUIS SAN MIGUEL; TERRI SALTZMAN; FRANK SCHENCK; JACKLINE SLEZAK; CARLISE STARGILL; JUDITH TALLETT; GREGORY TINDALL; BRAD VAN; DAWN VAUGHN; Karen Warren; Brian Wilson; LORY WILLIAMS; Yu Zhang; BILL ZOELLIN; John Does(s); Kimberly burks; Gertrude Collins; Traci Cougle; Diane Denton; Thomas Denton; Francis Early; David Evans; David Farwick; John Ferguson; Firenze Family Trust; Jay Sham Gabehart; Jeanine Hilliard Gorechan; Winston Harris; Scott Havenor; Jacqueline Hazey; Lian He; Daniel Hebert; Sharal Herbert; Amy Huang; John C Jenkins; Yanbo Jiang; Leonard Kleinpeter; Hongbin Li; Jin Li; Frank Lopinto; Keith Morales; Dan Nolan; Xio Yun Pan; Jill Ann Purkey; John Brady Sessums; Yiling Shi; Patricia Thaxton; Stephen Thaxton; Orvis Tully; Peina Wang; Deldeirdra Webb; Blake Wellerman; Hong Yu; Scott Farwick; Bob McCauley; Daniel Nola; individually and on behalf of all others similarly situated, Defendants; JUDITH TALLETT; Collins Asset Group, LLC; DAWN VAUGHN; Collins Asset Group, LLC; individually and on behalf of all others similarly situated, Counter Claimants, Case No. 7:20-cv-00942, was transferred from the U.S. District Court for the Southern District of New York to the U.S. District Court for the Northern District of Georgia on July 6, 2020. The Northern District of Georgia Court Clerk assigned Case No. 1:20-cv-02818-CC to the proceeding. The nature of suit is stated as Other Contract. Diversified Financial Services was founded in 1990. The Company's line of business includes providing various business services. Defendants TERRI SALTZMAN; DAWN VAUGHN; Kimberly Burks; Winston Harris; Jill Ann Purkey; Micaela Rogers; Orvis Tully; Deldeirdra Webb and Daniel Nola appear pro se.[BN] The Plaintiff is represented by: Andrew T. Hambelton, Esq. BLANK ROME LLC 1271 Avenue of the Americas New York, NY 10020 Phone: (212) 885-5345 Email: ahambelton@blankrome.com - and - Jonathan M. Robbin, Esq. J. ROBBIN LAW PLLC 200 Business Park Drive, Suite 103 Armonk, NY 10504 Phone: (914) 685-5016 Email: jonathan.robbin@jrobbinlaw.com The Defendants and Counter Claimants are represented by: Dayton Peter Haigney, III, Esq. 60 East 42nd Street, 47th Floor New York, NY 10165 Phone: (212) 557-5729 Fax: (212) 290-5729 - and - Michael J. Slocum, Esq. GREENBERG TRAURIG, LLP-NJ 500 Campus Drive, Suite 400 Florham Park, NJ 07932 Phone: (973) 360-7900 - and - Jason R. Doss, Esq. THE DOSS FIRM, LLC The Brumby Building 127 Church Street, Suite 220 Marietta, GA 30060 Phone: (770) 578-1314 Phone Fax: (770) 578-1302 Email: jasondoss@dossfirm.com - and - Collin Day Hatcher, Esq. Russell Donald King, Esq. KING, YAKLIN & WILKINS, LLP 192 Anderson Street, Suite 125 Marietta, GA 30060 Phone: (770) 424-9239 Email: chatcher@kingyaklin.com rking@kingyaklin.com ECOBEAR BIOHAZARD: Sarraf Sues Over Unsolicited Fax Ads ------------------------------------------------------- KEIVAN SARRAF, DDS, INC. d/b/a KAIROS DENTAL LAB, individually and on behalf of all others similarly situated, Plaintiff v. RAYMOND J. MAGNO d/b/a ECOBEAR and d/b/a ECOBEAR BIOHAZARD CLEANING COMPANY and EMILY KIL d/b/a ECOBEAR and ECOBEAR BIOHAZARD CLEANING COMPANY, Defendants, Case No. 2:20-cv-05708 (C.D. Cal., June 26, 2020) is a class action complaint brought against Defendants for their alleged violation of the Telephone Consumer Protection Act. According to the complaint, Plaintiff received an unsolicited fax ad in his fax machine number (714) 754-5452 on or about May 7, 2020. The fax, which constitutes material advertising the quality or commercial availability of an infectious disease cleaning services, was allegedly from Defendants who also have transmitted similar template facsimiles to at least 40 other persons as part of their plan to broadcast fax advertisements without obtaining their prior express invitation or permission to receive such fax advertisements. The complaint asserts that Defendants' unlawful transmission of fax advertisements have caused concrete and personalized injury to Plaintiff and the Class. Raymond J. Magno and Emily Kil own and operate Ecobear and Biohazard Cleaning Company. Ecobear and Ecobear Biohazard Cleaning Company provide biohazard cleaning services. [BN] The Plaintiff is represented by: Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Ave., Suite 2 Fort Lauderdale, FL 33301 Tel: 954-524-2820 Fax: 954-524-2822 Email: seth@epllc.com ELANCO ANIMAL: Faruqi & Faruqi Reminds of July 20 Deadline ---------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in Elanco Animal Health Incorporated ("Elanco" or the "Company") (NYSE: ELAN) of the July 20, 2020 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you invested in Elanco stock or options between January 10, 2020 and May 6, 2020 and would like to discuss your legal rights, click here: www.faruqilaw.com/ELAN. There is no cost or obligation to you. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com. CONTACT: FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Attn: Richard Gonnello, Esq. rgonnello@faruqilaw.com Telephone: (877) 247-4292 or (212) 983-9330 The lawsuit has been filed in the U.S. District Court for the Southern District of Indiana on behalf of all those who purchased Elanco securities between January 10, 2020 and May 6, 2020 (the "Class Period"). The case, Hunter v. Elanco Animal Health Incorporated et al., No. 1:20-cv-01460 was filed on May 20, 2020 and has been assigned to Judge Sarah Evans Barker. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose: (1) that, after consolidating its distributors from eight to four, the Company increased the amount of inventory, including companion animal products, held by each distributor; (2) that Elanco's distributors were not experiencing sufficient demand to sell through the inventory; (3) that, as a result, the Company's revenue was reasonably likely to decline; (4) that, as a result of the foregoing, Elanco would reduce its channel inventory with respect to companion animal products; and (5) 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. On May 7, 2020, Elanco announced its first quarter 2020 financial results in a press release, reporting revenue of $657.7 million and earnings per share of -$0.12. According to the Company, revenue declined "9 percent due to a reduction of approximately $60 million in channel inventory driven by factors resulting from the COVID-19 pandemic." Defendant Simmons attributed the disappointing results to "distributor performance," among other things, and stated that Elanco planned "to tighten [its] approach across many facets of [its] distributor relationships." On this news, the Company's stock price fell from $22.93 per share on May 6, 2020 to $19.88 per share on May 7, 2020: a $3.05 or 13.3% drop. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Elanco's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. To view the source version of this press release, please visit https://www.newsfilecorp.com/release/58729 [GN] ELLIS HOSPITAL: Nurse Sues Over Underpayment of Wages ----------------------------------------------------- John Cropley of The Daily Gazette reports that an Ellis Hospital nurse is bringing a federal lawsuit against Ellis, claiming it violated state and federal labor laws and underpaid her in the process. The allegations center on the number of hours worked per week, overtime not paid and lunch breaks denied. Her attorney is seeking class-action and collective-action status on behalf of hundreds of other Ellis employees that may be in a similar situation. The complaint was filed in U.S. District Court for the Northern District of New York in Albany. It seeks unpaid wages and overtime wages, interest, penalties, attorney fees and legal costs. Ellis declined to comment on the litigation but defended its compliance with labor regulations. "Speaking generally, Ellis Medicine respects and adheres to state and federal labor laws," it said in an emailed statement. John Nestico, the North Carolina attorney representing nurse Denise Davella, did not return a request for comment for this story. The court papers he filed make the following assertions and allegations: Ellis requires Davilla and similar employees to be on duty and available for work during their meal breaks, meaning they are not bona fide uninterrupted 30-minute breaks, as required by law. Ellis nonetheless deducts a 30-minute break from their shift, thus denying them wages due under state and federal labor rules for having worked or been on standby to work for those 30 minutes. Working through meal breaks boosts the employees' work week above 40 hours but Ellis does not pay these employees the required rate of 1.5 times their normal wage for hours worked in excess of 40 per work week. Ellis is aware these employees sometimes work more than 10 hours per workday but does not provide them the extra one hour of pay required when the workday exceeds 10 hours. The identity and total number of these similar employees will be readily available through Ellis' payroll records; Davella believes there are more than 500 such employees. Ellis did not maintain payroll records accurately showing the number of hours worked by Davella and the other employees, nor provide them with accurate itemized wage statements. Nestico is seeking a jury trial. In addition to money, the legal complaint seeks a declaration that Ellis' actions were illegal, and that Ellis broke the law willfully; an order preventing Ellis from retaliating against Davella or any other employee involved in the lawsuit; and designation of the case as a class action and collective action. [GN] EMERGENCY MEDICINE: Aguilar Seeks Unpaid Overtime Wages ------------------------------------------------------- Graciela Aguilar, on behalf of herself and all similarly situated individuals, Plaintiff, v. Emergency Medicine Specialists, LLP, Mark Ingram and Misty Ingram, Defendant, Case No. 20-cv-01368 (N.D. Tex., May 27, 2020), seeks all damages available including back wages, liquidated damages, legal fees, costs and post-judgment interest pursuant to the provisions of the Fair Labor Standards Act and the federal Portal-to-Portal Pay Act. Aguilar worked for Fastercare as an hourly paid nurse practitioner from approximately July 2017 to May 2020. She claims that she was misclassified as an independent contractor and W-2 employee thus denied overtime for every hour worked over 40 during all workweeks. [BN] Plaintiff is represented by: Allen R. Vaught, Esq. NILGES DRAHER VAUGHT PLLC 1910 Pacific Ave., Suite 9150 Dallas, TX 75201 Tel: (214) 251-4157 Fax: (214) 261-5159 Email: avaught@txlaborlaw.com EMSI HOLDING: Fails to Issue Advanced Closure Notice, Cook Says --------------------------------------------------------------- HAILEY COOK, individually and on behalf of all others similarly situated, Plaintiff v. EMSI HOLDING COMPANY, Defendant, Case No. 4:20-cv-02364 (S.D. Tex., July 6, 2020) is a class and collective action complaint brought against Defendant for its alleged willful violation of the Fair Labor Standards Act and the Worker Adjustment and Retraining Notification Act. Plaintiff was hired by Defendant as an hourly-paid and non-exempt employee to work in its facilities. The complaint asserts that Defendant failed to compensate Plaintiff and other employees a sufficient minimum wage and overtime wage for all hours worked during June and July 2020. Also, Defendant failed to notify Plaintiff and other employees and provide advance notice that the company was closing effective immediately. EMSI Holding Company provides medical records, exams, and inspection reports for insurance companies, law firms and clinical trials. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 Email: josh@sanfordlawfirm.com ENDO INT'L: Bernstein Liebhard Reminds of August 18 Deadline ------------------------------------------------------------ Bernstein Liebhard, a nationally acclaimed investor rights law firm, on June 30 disclosed that a securities class action has been filed on behalf of investors that purchased or acquired the securities of Endo International plc ("Endo" or the "Company") (NASDAQ: ENDP) between August 8, 2017 and May 1, 2020 (the "Class Period"). The lawsuit filed in the United States District Court for the District of New Jersey alleges violations of the Securities Exchange Act of 1934. If you purchased Endo securities, and/or would like to discuss your legal rights and options please visit Endo Shareholder Lawsuit or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (i) the full scope of Endo's and/or its subsidiaries' contributions to the opioid crisis, including, but not limited to, their opioid products' disproportionately negative impact on New York, one of the most populous states in the U.S., as well as the fraud that Defendants perpetrated on the New York insurance market; (ii) part of that contribution to the crisis included Endo publishing and disseminating false information to health care providers regarding the risks and benefits of opioids; (iii) that the foregoing, once revealed, was foreseeably likely to subject Endo and/or its subsidiaries to increased regulatory scrutiny and enforcement, as well as significant financial and/or reputational harm, particularly with respect to New York; and (iv) that, as a result, the Company's public statements were materially false and misleading at all relevant times. On June 10, 2020, New York Governor Andrew Cuomo ("Governor Cuomo") announced that the New York Department of Financial Services ("DFS") had filed administrative charges against Endo in connection with its role in the opioid crisis, alleging that Endo fraudulently misrepresented the safety and efficacy of its opioid drugs while minimizing the risk of addiction and other ill effects. That same day, DFS issued its own press release specifically announcing that it "has filed charges and initiated administrative proceedings against Endo . . . and its subsidiaries, [EHS], [EPI], and [PPCI]" in connection with "DFS' ongoing investigation into the entities that created and perpetuated the opioid crisis"; that "[t]he DFS' statement of charges alleges that, like other opioid Manufactures, Endo . . . [k]nowingly furthered a false narrative to legitimize opioids as appropriate for broad treatment of pain by downplaying their long-known addictive nature and risks"; and that Endo and its subsidiaries "[m]isrepresented the safety and efficacy of opioids, without legitimate scientific substantiation," and "[d]eployed a large sales force to target healthcare providers directly with these misrepresentations." On this news, Endo's Ordinary share price fell $0.66 per share, or 14.63%, to close at $3.85 per share on June 10, 2020. If you wish to serve as lead plaintiff, you must move the Court no later than August 18, 2020. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased Endo securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/endointernationalplc-endp-shareholder-class-action-stock-fraud-279/apply/ or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. The lawyer responsible for this advertisement in the State of Connecticut is Michael S. Bigin. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] ENPHASE ENERGY: Barbuto & Johansson Reminds of August 17 Deadline ----------------------------------------------------------------- Barbuto & Johansson, P.A. ("BARJO" or the "Firm") and Of Counsel, Neil Rothstein, Esq. (with over 30 years of Securities Class Action experience, including cases against ENRON and HALLIBURTON), remind investors that they have until August 17, 2020 to file lead plaintiff applications in the securities class action lawsuit filed against Enphase Energy, Inc. (NASDAQ:ENPH). Shareholders with losses exceeding $100,000 are encouraged to contact the Firm to discuss their options. On June 17, 2020, Prescience Point Capital Management ("Prescience Point"), a private investment manager that focuses on investigations of public companies, published a negative research report on Enphase Energy, Inc. supporting its short position. According to Prescience Point, its research suggests that at least 39%, or $205 million, of US revenue reported by the company is potentially fabricated, as is a significant portion of the company's international revenue. Eiad Asbahi, Founder and Portfolio Manager of Prescience Point said, "The explosive growth that Enphase has reported to investors over the last two years is nothing but a sham which has lined the pockets of those at the top of the company . . . We believe the evidence presented in our report will result in multiple government investigations, a major accounting restatement, shareholder lawsuits and a delisting of ENPH shares from the NASDAQ." On this news, the Company's share price fell nearly 26%. A lawsuit, Gregory A. Hurst v. Enphase Energy, Inc., et al., Case No.: 5:20-cv-04036, has now been filed in the U.S. District Court for the Northern District of California on behalf of shareholders who purchased the Company's common stock between February 26, 2019 and June 17, 2020, inclusive (the "Class Period"). The lawsuit alleges that Enphase and certain of its executives failed to disclose material information during the Class Period, violating federal securities laws. Specifically, the lawsuit alleges, in part, that the Defendants misrepresented and/or failed to disclose to investors that Enphase's revenues were inflated, that Enphase engaged in improper deferred revenue accounting practices, and the Company's reported base points expansion in gross margins were overstated. If you purchased shares of Enphase and would like to discuss the case and your options as a class member and serving as a lead plaintiff, you may, without obligation or cost, contact attorney Anthony Barbuto, at (888) 715-2520, or via email at anthony@barjolaw.com; and/or Neil Rothstein via email at neil@barjolaw.com. BARJO believes strongly that the choice of a qualified lead plaintiff can have a significant impact on the successful outcome of a case. Barbuto & Johansson, P.A. Anthony Barbuto, Esq. 1-888-715-2520 12773 Forest Hill Blvd., 101 Wellington, FL 33414 www.barjolaw.com [GN] ENPHASE ENERGY: Labaton Sucharow Announces Class Action Filing -------------------------------------------------------------- Labaton Sucharow LLP, a nationally ranked investor rights law firm, on June 30 announced the filing of a class-action lawsuit on behalf of purchasers of stock, options, and derivatives of Enphase Energy, Inc. (ENPH) between February 26, 2019 and June 17, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Enphase investors under the federal securities laws. The complaint alleges that Enphase misrepresented and/or failed to disclose to investors that: (1) its revenues, both U.S. and international, were inflated; (2) the Company engaged in improper deferred revenue accounting practices; (3) the Company's reported base points expansion in gross margins were overstated; and (4) as a result of the foregoing, defendants' public statements were materially false and misleading at all relevant times. In particular, on June 17, 2020, Prescience Point Capital issued negative analysis reporting that 39% or $205M of Enphase's revenue "fabricated" by "accounting gimmicks that artificially inflate revenue and profits." Prescience also claimed former Enphase employees in India believe the company is utilizing an offshore finance and accounting team to help executives perpetrate potential accounting violations. On this news, Enphase dropped as much as 15% on heavy volume. If you would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact David J. Schwartz, Esq. of Labaton Sucharow, at (800) 321-0476, or via email at dschwartz@labaton.com. About the Firm Labaton Sucharow LLP -- http://www.labaton.com-- is one of the world's leading complex litigation firms representing clients in securities, antitrust, corporate governance and shareholder rights, and consumer cybersecurity and data privacy litigation. Labaton Sucharow has been recognized for its excellence by the courts and peers, and it is consistently ranked in leading industry publications. Offices are located in New York, NY, Wilmington, DE, and Washington, D.C. CONTACT: David J. Schwartz (800) 321-0476 dschwartz@labaton.com or recover@labaton.com [GN] ENPHASE ENERGY: Levi & Korsinsky Reminds of August 17 Deadline -------------------------------------------------------------- Levi & Korsinsky, LLP on June 30 disclosed that class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. LOPE Shareholders Click Here: https://www.zlk.com/pslra-1/grand-canyon-education-inc-loss-form?prid=7660&wire=1 ENPH Shareholders Click Here: https://www.zlk.com/pslra-1/enphase-energy-inc-loss-submission-form?prid=7660&wire=1 BKD Shareholders Click Here: https://www.zlk.com/pslra-1/brookdale-senior-living-inc-loss-submission-form?prid=7660&wire=1 * ADDITIONAL INFORMATION BELOW * Grand Canyon Education, Inc. (LOPE) LOPE Lawsuit on behalf of: investors who purchased January 5, 2018 - January 27, 2020 Lead Plaintiff Deadline: July 13, 2020 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/grand-canyon-education-inc-loss-form?prid=7660&wire=1 According to a filed complaint, statements made by Defendants were false and/or misleading because, following Grand Canyon's spin-off of its educational assets as Grand Canyon University ("GCU"): (i) GCU would not be a proper non-profit organization as it would remain under the control of Grand Canyon, and (ii) Grand Canyon would not be a third-party service provider to GCU but rather would continue to effectively operate the entity, and (iii) Grand Canyon employees served as executives of GCU and (iv) GCU functioned as an off-balance-sheet entity to which Grand Canyon would be able to funnel expenses and costs in exchange for a disproportionate amount of revenue, thereby inflating Grand Canyon's financial results. Enphase Energy, Inc. (ENPH) ENPH Lawsuit on behalf of: investors who purchased February 26, 2019 - June 17, 2020 Lead Plaintiff Deadline: August 17, 2020 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/enphase-energy-inc-loss-submission-form?prid=7660&wire=1 According to the filed complaint, during the class period, Enphase Energy, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) its revenues, both U.S. and international, were inflated; (2) the Company engaged in improper deferred revenue accounting practices; (3) the Company's reported base points expansion in gross margins were overstated; and (4) as a result of the foregoing, Defendants' public statements were materially false and misleading at all relevant times. Brookdale Senior Living Inc. (BKD) BKD Lawsuit on behalf of: investors who purchased August 10, 2016 - April 29, 2020 Lead Plaintiff Deadline: August 24, 2020 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/brookdale-senior-living-inc-loss-submission-form?prid=7660&wire=1 According to the filed complaint, during the class period, Brookdale Senior Living Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) Brookdale's financial performance was sustained by, among other things, the Company's purposeful understaffing of its senior living communities; (ii) the foregoing conduct subjected Brookdale to an increased risk of litigation and, once revealed, was foreseeably likely to have a material negative impact on the Company's financial results and reputation; (iii) as a result, the Company's financial results were unsustainable; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 http://www.zlk.com[GN] EQT CORP: Court Denies EQPTC's Arbitration Bid in Heaster Suit -------------------------------------------------------------- In the case, ADAM HEASTER, Individually and For Others Similarly Situated, Plaintiff, v. EQT CORPORATION, Defendant, Civil Action No. 19-1463 (W.D. Pa.), Magistrate Judge Maureen P. Kelly of the U.S. District Court for the Western District of Pennsylvania granted Plaintiff Heaster's Motion to Strike Non-Party EQT Production Company's Improperly Filed Motion to Compel Arbitration and to Dismiss. The class action lawsuit was filed by Adam Heaster for recovery of allegedly unpaid and owing overtime wages under the Fair Labor Standards Act ("FLSA") and the Pennsylvania Minimum Wage Act ("PMWA"). Heaster contends that EQT Corp. is liable for overtime wages for the period October 2016 through April 2018 while he worked as a landman for EQT Corporation. EQT Production Co. ("EQTPC") has filed a Motion to Compel Arbitration and Motion to Dismiss contending that EQT has been incorrectly identified as a Defendant and that certain of Heaster's claims against Defendant EQT are subject to a "Pre-Assignment Acknowledgement and Arbitration Agreement" entered into between Heaster and Percheron Professional Services, LLC on March 22, 2018. EQTPC states that Heaster was employed by Percheron pursuant to a master land services agreement entered into by and between Percheron and EQTPC, and not between Percheron and EQT Corporation. Pending before the Court is Plaintiff Heaster's Motion to Strike. Plaintiff seeks to strike the Motion to Compel Arbitration on the basis that EQTPC is not a party to the action. EQT responds that the Motion to Compel Arbitration was filed by EQT. The Motion to Compel Arbitration plainly states that it is submitted by EQT Production Co., incorrectly captioned as EQT Corp." At this stage of the litigation, that issue has not yet been resolved and EQTPC is not yet a party. Alternatively, EQT argues that it is entitled to enforce the arbitration agreement as a third-party beneficiary under applicable federal and Pennsylvania law. Accordingly, if the Motion to Strike is granted, EQT asks the Court to hold the Motion to Compel Arbitration in abeyance to permit EQTPC to intervene in this action pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. It is apparent from Heaster's Amended Complaint, the Motion to Compel Arbitration, and the exhibits attached thereto, that at least a portion of Heaster's claims for unpaid overtime wages are subject to the arbitration agreement, and that certain defenses and rights to indemnification related to those claims cannot be adequately resolved in the absence of EQTPC. EQTPC has not filed a motion for permissive intervention pursuant to Rule 24(b) of the Federal Rules of Civil Procedure and is not yet a party. EQT does not direct the Court to any authority permitting a non-party to file a Motion to Compel Arbitration in the absence of an order granted a motion to intervene. Accordingly, Judge Kelly granted the Motion to Strike. EQT is granted leave In the case, ADAM HEASTER, Individually and For Others Similarly Situated, Plaintiff, v. EQT CORPORATION, Defendant, Civil Action No. 19-1463 (W.D. Pa.), Magistrate Judge Maureen P. Kelly of the U.S. District Court for the Western District of Pennsylvania granted Plaintiff Heaster's Motion to Strike Non-Party EQT Production Company's Improperly Filed Motion to Compel Arbitration and to Dismiss. The class action lawsuit was filed by Heaster for recovery of allegedly unpaid and owing overtime wages under the Fair Labor Standards Act ("FLSA") and the Pennsylvania Minimum Wage Act ("PMWA"). Heaster contends that EQT is liable for overtime wages for the period October 2016 through April 2018 while he worked as a landman for EQT Corporation. EQT Production Co. ("EQTPC") has filed a Motion to Compel Arbitration and Motion to Dismiss contending that EQT has been incorrectly identified as a Defendant and that certain of Heaster's claims against Defendant EQT are subject to a "Pre-Assignment Acknowledgement and Arbitration Agreement" entered into between Heaster and Percheron Professional Services, LLC on March 22, 2018. EQTPC states that Heaster was employed by Percheron pursuant to a master land services agreement entered into by and between Percheron and EQTPC, and not between Percheron and EQT Corporation. Pending now before the Court is Plaintiff Heaster's Motion to Strike. He seeks to strike the Motion to Compel Arbitration on the basis that EQTPC is not a party to the action. EQT responds that the Motion to Compel Arbitration was filed by EQT. The Motion to Compel Arbitration plainly states that it is submitted by EQT Production Co., incorrectly captioned as EQT Corp." At this stage of the litigation, that issue has not yet been resolved and EQTPC is not yet a party. Alternatively, EQT argues that it is entitled to enforce the arbitration agreement as a third-party beneficiary under applicable federal and Pennsylvania law. Accordingly, if the Motion to Strike is granted, EQT asks the Court to hold the Motion to Compel Arbitration in abeyance to permit EQTPC to intervene in this action pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. It is apparent from Heaster's Amended Complaint, the Motion to Compel Arbitration, and the exhibits attached thereto, that at least a portion of Heaster's claims for unpaid overtime wages are subject to the arbitration agreement, and that certain defenses and rights to indemnification related to those claims cannot be adequately resolved in the absence of EQTPC. EQTPC has not filed a motion for permissive intervention pursuant to Rule 24(b) of the Federal Rules of Civil Procedure and is not yet a party. EQT does not direct the Court to any authority permitting a non-party to file a Motion to Compel Arbitration in the absence of an order granted a motion to intervene. Accordingly, Judge Kelly granted the Motion to Strike. EQT is granted leave to refile its Motion to Compel Arbitration on its own behalf as a third-party beneficiary. Alternatively, in the interest of the efficient administration of justice and pursuant to Rule 24(b), the Judge granted leave to permit EQTPC to file a motion to intervene as a defendant in the action. A full-text copy of the Court's April 17, 2020 Memorandum Order is available at https://is.gd/c7oOyQ from Leagle.com. ERIE INSURANCE: Six Nashville Restaurants Launch Class Action ------------------------------------------------------------- Lieff Cabraser Heimann & Bernstein, LLP, The Higgins Firm, and the Law Office of Alexandra Foote have filed a federal nationwide class action lawsuit against Erie Insurance Exchange on behalf of six Nashville-area restaurants and bars accusing the insurance carrier of breach of contract in its failure to pay valid business interruption insurance claims. This is the first such federal class action filed in Nashville. The plaintiffs are six popular restaurants and bars in the Nashville area: Crow's Nest, Hillwood Pub, Joe's Place, Plaintiff Plantation Pub, Inc., Sidelines Grill Pleasant View, and Sidelines Grill Ashland City. Several, like Sidelines Grill, are family-owned and host live music. Others, like Hillwood Pub and Plantation Pub, are nightlife-oriented but also serve "pub style" food popular in local communities. In 2014, Hillwood Pub participated in and won the "Music City Hot Wings Festival." The plaintiffs are bringing claims on behalf of a proposed nationwide class of restaurants and bars. As set forth in the complaint, several months ago all six plaintiff establishments were forced to shut down at the order of both state and local governments who required the restaurants, their workers, and their customers to "shelter in place" and abide by strict "social distancing" guidelines. These compulsory shutdowns forced the restaurants to lay off employees and to lose income for several months while continuing to pay many regular expenses, causing severe financial losses, which the plaintiffs' restaurants and bars were unable to recoup even after they were permitted to re-open with limitations. As the complaint details, to protect their business from catastrophic situations like this one, the plaintiffs purchased insurance from Erie Insurance Exchange that included coverage for business interruption. The policies expressly provide coverage for "Lost Income" and the consequences of actions by "Civil Authority." Accordingly, the restaurants expected that their policies would help protect their businesses in the event that the government ever ordered them to stop or severely restrict operations in connection with a pandemic or any other covered cause of loss. When plaintiffs submitted their claims to Erie Insurance Exchange, the claims were summarily denied. The complaint alleges that these denials were part of a premeditated strategy by Erie to deny all claims related to the "shelter in place" orders and COVID-19. The complaint alleges these denials were untethered to the facts of the claims, which Erie did not adequately investigate, or to the specific coverage provided by the plaintiffs' business insurance policies. "These small businesses bought insurance to protect against business interruption," notes Lieff Cabraser partner Mark P. Chalos, who represents the plaintiffs in the lawsuit. "The last thing that small businesses need right now is their billionaire insurance company wrongfully denying claims." "We're proud to represent this group of locally-owned Nashville bars and restaurants, businesses that serve our community," notes The Higgins Firm's Jim Higgins, who also represents the plaintiffs in the suit. "Erie's systematic, blanket denial of their insurance claims is just wrong, and this lawsuit seeks to correct that wrong." "It has been a difficult time for many small businesses in Tennessee, especially restaurants and bars," said Doug Crow, owner and operator of the plaintiff businesses. "We are standing up to these insurance companies that are refusing to do what they promised to do." The class in the lawsuit is defined as "All persons or entities in the United States who own an interest in a business that served food or drink on the premises and was insured by Erie Insurance Exchange in March 2020, made (or attempted to make) a claim with Erie arising from loss of income (or extra expense or other losses related to business interruption) at that business related to COVID-19, and did not receive coverage for that claim." The lawsuit states claims for breach of contract and breach of the covenant of good faith and fair dealing, and seeks injunctive relief as well as damages. Contact: Mark P. Chalos Lieff Cabraser Heimann & Bernstein, LLP 222 2nd Avenue South Nashville, TN 37201 Telephone: 315-313-9000 E-mail: mchalos@lchb.com Jim Higgins The Higgins Firm 525 4th Ave South Nashville, TN 37210 Telephone: 615-353-0930 [GN] EVERGREEN HOSPITAL: Waived Right to Arbitration, Says Wash. S.C. ---------------------------------------------------------------- Christina Gallo of Carlton Fields, in an article for JD Supra titled "Washington Supreme Court Finds Hospital Waived Its Right to Arbitration When It Chose to Litigate for Nine Months", wrote that the Supreme Court of Washington recently affirmed the denial of Evergreen Hospital Medical Center's motion to compel arbitration on the grounds that Evergreen waived its right to compel arbitration of claims arising under a collective bargaining agreement between Evergreen and the Washington State Nurses Association governing nurse employment. A member employee brought this putative class action against her employer, Evergreen, alleging that Evergreen failed to give required rest and meal breaks. After nine months of litigation and the addition of a second named plaintiff, Evergreen moved to compel arbitration. The trial court denied the motion, and the court of appeals affirmed. Evergreen petitioned to the Supreme Court of Washington, which granted review. The court analyzed three factors to determine whether Evergreen waived its right to arbitration: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that right; and (3) prejudice. As to the first factor, the court found there was no dispute that Evergreen believed it had an existing right to arbitrate. As to the second factor, the court found that through its conduct, Evergreen chose to litigate for approximately nine months rather than arbitrate, and thus behaved inconsistently with a party seeking to arbitrate. The court noted that the parties engaged in discovery and litigation for approximately nine months without seeking mediation or awaiting a decision from the court in another case and that Evergreen did not move to compel until the third iteration of the complaint even though the complaint had almost identical claims throughout. As to the third factor, the court found that granting the motion to compel arbitration this late in litigation would cause severe prejudice to the plaintiffs, who had already incurred more than $140,000 in legal fees (from discovery, sending the notice of the class action to all the nurses, and securing expert witnesses), and would improperly allow Evergreen to relitigate class certification on which it lost. Thus, the Supreme Court affirmed the court of appeals on the ground that Evergreen waived the right to compel arbitration, and remanded to the superior court for further proceedings consistent with the Supreme Court's opinion. Lee v. Evergreen Hospital Medical Center, No. 97201-0 (Wash. June 4, 2020). [GN] EXETER FINANCE: Tenth Circuit Appeal Filed in Rivera TCPA Suit -------------------------------------------------------------- Plaintiff Edgar Rivera filed an appeal from a court ruling in the lawsuit entitled Rivera v. Exeter Finance Corp., Case No. 1:15-CV-01057-PAB-MEH, in the U.S. District Court for the District of Colorado, Denver. As previously reported in the Class Action Reporter, the Plaintiff filed the instant class action lawsuit alleging a violation of the Telephone Consumer Protection Act (TCPA). The Plaintiff contends that he and others similarly situated received debt collection telephone calls on their cell phones when, in fact, those calls were intended not for them but for the prior subscriber of their cell telephone number. The Defendant contends that the Plaintiff's ability to prevail depends on the definition of an "automatic telephone dialing system" (or ATDS) under the TCPA, and on whether the statute supports liability for calls to reassigned telephone numbers. The Defendant further contends that both these issues were addressed by the Federal Communication Commission's (FCC) latest Declaratory Ruling and Order (Ruling), and that the Ruling has been appealed to the United States Court of Appeals for the D.C. Circuit. The appellate case is captioned as Rivera v. Exeter Finance Corp., Case No. 19-704, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiff-Petitioner EDGAR RIVERA, on behalf of himself and all others similarly situated, is represented by: David McDevitt, Esq. THOMPSON CONSUMER LAW GROUP 5235 East Southern Avenue, Suite D106-618 Mesa, AZ 85206 Telephone: 602-845-5969 E-mail: dmcdevitt@consumerlawinfo.com Defendant-Respondent EXETER FINANCE CORP. is represented by: John Robert Chiles, Esq. BURR & FORMAN LLP 350 East Las Olas Boulevard, Suite 1420 Ft. Lauderdale, FL 33301 Telephone: 954-414-6203 E-mail: jchiles@burr.com - and - Brent D. Hitson, Esq. BURR & FORMAN LLP P.O. Box 830719 Birmingham, AL 35283-0719 Telephone: 205/251-3000 E-mail: bhitson@burr.com - and - Austin Evans Smith, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2000 South Colorado Blvd., Tower 3, Suite 900 Denver, CO 80222 Telephone: 303-764-6800 E-mail: austin.smith@ogletree.com FAM LLC: Cruz Sues in S.D. New York Alleging Violation of ADA ------------------------------------------------------------- A class action lawsuit has been filed against Fam, LLC. The case is styled as Shael Cruz, on behalf of himself and all others similarly situated v. Fam, LLC, Case No. 1:20-cv-05144 (S.D.N.Y., July 6, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. FAM LLC designs, manufactures, and distributes apparels. The Company offers activewear, yoga apparel, sport bras, shape wear, cover-ups, denim, outerwear, knit tops, and footwear and fitness accessories.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal FCA US: Pistorio Claims Infotainment System Defective ----------------------------------------------------- EDWARD PISTORIO and PAUL MURDOCK on behalf of themselves and all others similarly situated; Plaintiffs, v. FCA US LLC, Defendant, Case No. 2:20-cv-11838-SFC-RSW (E.D. Mich., July 7, 2020) is an action brought by the Plaintiffs for themselves and on behalf of all persons in the United States who purchased or leased any 2017-2019 Chrysler Pacifica or Chrysler 300 vehicles equipped with FCA US LLC's defective "UConnect" infotainment system designed, manufactured, marketed, distributed, sold, warranted, and/or serviced by FCA US LLC. The case arises from FCA's failure to disclose material facts regarding a safety defect in the Class Vehicles sold to consumers and FCA's failure to fulfill its warranty obligations with respect to that defect. According to the complaint, FCA manufactured, marketed, distributed, and sold the Class Vehicles without disclosing that the Class Vehicles' UConnect infotainment system was defective. Specifically, the Uconnect system is designed and/or manufactured with screens, including their operating software and routing modules, that suffer from freezing, loss of back up camera functionality, loss of navigation system functionality, black screens, repeated unintentional reboots, and general lack of operation. The UConnect Defect results in the need for frequent software updates and expensive replacements of screens and related components. FCA knew about the deficiencies of the UConnect well before Plaintiffs purchased their Class Vehicles. The Uconnect Defect is material to consumers because it poses a serious safety concern. As attested by Class Members in scores of complaints to the National Highway Traffic Safety Administration, and other online forums, the UConnect Defect can result in a loss of backup camera, loss of navigation, black screens, and inadvertent reboots among other failure modes. The failure of the backup camera and navigation system puts lives at risk. A faulty backup camera leaves drivers unable to see small children or wheelchair-using adults behind their vehicles. A malfunctioning navigation system requires drivers to rely on their phones for navigation, which increases distraction and the risk of an accident and may violate handsfree laws. FCA US LLC designs, manufactures, markets, distributes, services, repairs, sells, and leases passenger vehicles, including the Class Vehicles across the U.S.[BN] The Plaintiffs are represented by: E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Emily E. Hughes, Esq. Dennis A. Lienhardt, Esq. William Kalas, Esq. THE MILLER LAW FIRM, P.C 950 West University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com ssa@millerlawpc.com eeh@millerlawpc.com dal@millerlawpc.com wk@millerlawpc.com - and - Laurence Deutsch, Esq. Jeffrey L. Osterwise, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: ldeutsch@bm.net josterwise@bm.net - and - Steven R. Weinmann, Esq. Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Trisha K. Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 E-mail: Steven.Weinmann@capstonelawyers.com Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Trisha.Monesi@capstonelawyers.com - and - Joshua H. Haffner, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2625 Los Angeles, CA 90071 Telephone: (213) 514-5681 E-mail: jhh@haffnerlawyers.com gl@haffnerlawyers.com FERRARA CANDY: Artificial Victory in Class Action vs. Candymaker ---------------------------------------------------------------- Business Insurance reports that lawyers representing a class action against the makers of SweeTarts candy over ingredient claims got a sweet deal. Such is as the heart of a decision issued by the 9th U.S. Circuit Court of Appeals in San Francisco in which plaintiffs in a lawsuit against the Ferrara Candy Co. over the company's claim that its product contains "no artificial flavors" when in fact it contained "dl-malic" acid, according to court documents. In the recent proceeding, the one plaintiff in the class objected to final approval of the settlement - $272,000 - arguing that the money went to legal fees and that "the purported injunctive relief had no settlement value" to plaintiffs, adding that "valueless injunctive relief" could not justify "class counsel's disproportionate fee." As part of the settlement, the plaintiffs would now be able to "make a learned judgment" about purchasing SweeTARTS products in the future, according to documents. The court, meanwhile, determined that the settlement, including the attorney's fees award, was "fair, reasonable, and adequate," affirming a district court ruling that noted "weaknesses" in the case. [GN] FIGURE 8: Daniell Sues Over Unpaid Wages & Unlawful Retaliation --------------------------------------------------------------- JOSEFF DANIELL, individually and on behalf of all others similarly situated, Plaintiff v. FIGURE 8 COMMUNICATIONS, INC., Defendant, Case No. 3:20-cv-00125-KRG (W.D. Pa., July 2, 2020) is a collective and class action complaint brought against Defendant for its alleged violations of the Fair Labor Standards Act of 1938, the Pennsylvania Minimum Wage Act of 1968, and the Pennsylvania Wage Payment and Collection Law. Plaintiff worked for Defendant as a Lineman from January 2019 to April 2019. Plaintiff claims that Defendant underreported the piece rate of its Linemen to suppress Plaintiffs' wages, applied the underreported piece rate to decrease Plaintiffs' "regular rate" of pay, and frequently forced Plaintiffs to work in excess of 40 hours per week. As a result, Defendant willfully refused to pay Plaintiffs their correct piece rate, "regular rate" of pay, and overtime for the time they worked in excess of 40 hours per week from their date of hire through the filing date of this complaint. Moreover, Defendant terminated Plaintiff in April 2019 after his insistent complaints to correct Defendant's wage and hour violations. Figure 8 Communications, Inc. provides construction installation and maintenance services to telecommunication companies throughout the Northeastern United States, including the Commonwealth of Pennsylvania. [BN] The Plaintiff is represented by: Derrek W. Cummings, Esq. Larry A. Weisberg, Esq. Steve T. Mahan, Esq. WEISBERG CUMMINGS, P.C. 2704 Commerce Drive, Suite B Harrisburg, PA 17110-9380 Tel: (717) 238-5707 Fax: (717) 233-8133 Emails: dcummings@weisbergcummings.com lweisberg@weisbergcummings.com smahan@weisbergcummings.com FINJAN HOLDINGS: Faces Barnes Suit over Proposed Merger ------------------------------------------------------- LUCAS BARNES, individually and on behalf of all others similarly situated, Plaintiff v. FINJAN HOLDINGS, INC.; ERIC BENHAMOU; DANIEL CHINN; GLENN DANIEL; HARRY KELLOGG; ALEX ROGERS; MICHAEL SOUTHWORTH; GARY MOORE; and JOHN GREENE, Defendants, Case 3:20-cv-04289 (N.D. Cal., June 29, 2020) alleges violation of the Securities and Exchange Act of 1934. The Plaintiff brings this stockholder class action on behalf of himself and all other public stockholders of Finjan Holdings, Inc., against Finjan and the Company's Board of Directors for violations of the Securities and Exchange Act of 1934 and breaches of fiduciary duty as a result of the Defendants' efforts to sell the Company to CFIP Goldfish Holdings LLC ("Parent"), and CFIP Goldfish Merger Sub Inc. as a result of an unfair process for an unfair price, and to enjoin an upcoming tender offer on a proposed all-cash transaction valued at approximately $43.9 million. The terms of the Proposed Transaction were memorialized in a June 10, 2020, filing with the Securities and Exchange Commission ("SEC") on Form 8-K attaching the definitive Agreement and Plan of Merger. Under the terms of the Merger Agreement, Finjan will become an indirect wholly-owned subsidiary of Fortress, and Finjan stockholders will receive only $1.55 in cash for each share of Finjan common stock they own. Following successful completion of the tender offer, Fortress will acquire all remaining shares not tendered in the offer through a merger at the same price as in the tender offer. As a result of the Proposed Transaction, Plaintiff and other Finjan stockholders will be frozen out of any future ownership interest in the Company. Thereafter, on June 24, 2020, Finjan filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in support of the Proposed Transaction. The Proposed Transaction is unfair and undervalued for a number of reasons. Significantly, the Recommendation Statement describes an insufficient process in which the Board created an inadequate "transaction committee" that was ineffectual and sidelined from the start. In approving the Proposed Transaction, the Individual Defendants have breached their fiduciary duties of loyalty, good faith, due care and disclosure by, inter alia, (i) agreeing to sell Finjan without first taking steps to ensure that the Plaintiff and Class members, would obtain adequate, fair and maximum consideration under the circumstances; and (ii) engineering the Proposed Transaction to benefit themselves and/or Fortress without regard for Finjan public stockholders. Finjan Holdings, Inc. is an online security and technology company which owns a portfolio of patents, related to software that proactively detects malicious code and thereby protects end-users from identity and data theft, spyware, malware, phishing, trojans and other online threats. [BN] The Plaintiff is represented by: Evan J. Smith, Esq. Ryan P. Cardona, Esq. BRODSKY & SMITH, LLC 9595 Wilshire Boulevard, Suite 900 Beverly Hills, CA 90212 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 E-mail: esmith@brodskysmith.com rcardona@brodskysmith.com FLORIDA ORTHOPEDIC: Faces $99M Class Action Over Data Breach ------------------------------------------------------------ Jackie Callaway of ABC Action News reports that one of Florida's largest orthopedic providers is facing a class-action lawsuit after hackers stole personal information from potentially thousands of patients. Attorney John Yanchunis of Morgan & Morgan filed the lawsuit against the Florida Orthopedic Institute, seeking at least $99 million on behalf of patients and former patients citing a "failure to properly secure and safeguard protected health information," according to the complaint filed June 30. "If you retain this information and you lose it, you are responsible for the repercussions of its loss," Yanchunis told ABC Action News. The case filed in Hillsborough County seeks long-term identity theft protection for patients, payment for victims who suffer losses as a result of the breach and a court order to force the medical group to strengthen its cybersecurity methods going forward. ABC Action News confirmed several patients received a letter from Florida Orthopedic Institute dated June 19, alerting them about the data breach. But that notice reports the medical group learned of the ransom-ware attack on or around April 9. "I was a little bit shocked that it took so long to let us know," said Andrea Carbone, a paralegal at Morgan & Morgan and one of the complainants in the lawsuit. Carbone said she received a letter about the data breach, which includes an offer for the institute to pay for identity theft monitoring service. Carbone said when she signed up, she found out it only covers one year, which she said she believes is too short of a time period. ABC Action News asked the Florida Orthopedic Institute for an interview about the lawsuit and the timing on its notification to patients on the data breach. The company declined the interview request but emailed a statement, saying: "Florida Orthopedic Institute ("FOI") discovered an incident that involved the personal information of our patients. While FOI is not aware of the misuse of any information impacted by this incident, we are in the process of directly notifying the individuals potentially affected by this incident and are providing them with resources to assist in protecting their personal information. We encourage anyone with questions about this incident to visit our website, www.floridaortho.com." Victims of any data breach can take the following steps to protect themselves: Place a freeze on your credit through these credit reporting companies: Experian, Equifax and Transunion. Sign up for a credit monitoring service. Check your credit report at least once a year. [GN] FROST-ARNETT COMPANY: Hau FDCPA Suit Removed to W.D. Wisconsin -------------------------------------------------------------- The case captioned Phillip Hau, individually and on behalf of all others similarly situated v. Frost-Arnett Company, Case No. 2020CV000395, was removed from the Circuit Court of the State of Wisconsin, Rock County, to the U.S. District Court for the Western District of Wisconsin on July 6, 2020. The District Court Clerk assigned Case No. 3:20-cv-00622-wmc to the proceeding. The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Frost-Arnett Company operates as a account receivable management company. The Company offers collections, recovery on delinquent accounts, early-out, return on investment- enhancing, insurance follow-up, pre-registration, and extended business office services.[BN] The Plaintiff is represented by: Andrew T. Thomasson, Esq. Francis R. Greene, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081 Phone: (973) 379-7500 Fax: (973) 532-5868 Email: andrew@sternthomasson.com francis@sternthomasson.com The Defendant is represented by: Patrick Frasor Moran, Esq. GORDON & REES LLP 1 North Franklin, Suite 800 Chicago, IL 60606 Phone: (312) 980-6774 Fax: (312) 565-6511 Email: pmoran@gordonrees.com GENERAL MOTORS: Class Action Over Takata Airbags Won't Proceed -------------------------------------------------------------- CarComplaints.com reports that a nationwide class-action lawsuit filed against General Motors will not be allowed to proceed after a judge found the plaintiffs "lacked standing." The class-action lawsuit pertains to faulty Takata airbags that were installed in a number of different, older model GM vehicles. The faulty Takata airbag inflator, which is prone to exploding due to the use of ammonium nitrate as a propellant, has led to the recall of millions of vehicles worldwide. Plaintiffs in this lawsuit say GM should have known about the defective Takata inflator before installing the airbags in its vehicles and accuses the automaker of concealing the problem and failing to inform owners of the risks the airbag posed. GM, for its part, says the lawsuit is without merit and has been actively fighting it in court. A judge previously dismissed a claim that GM violated the Racketeer Influenced and Corrupt Organizations (RICO) Act during its handling of the Takata airbag recall. The judge then dismissed the nationwide class action suit entirely this week on the grounds that plaintiffs cannot represent GM owners in states where it did not break laws pertaining to breach of implied warranty. A number of claims are being allowed to pass through the courts, however, including "certain statewide consumer protection and breach of implied warranty claims," according to CarComplaints.com, along with claims for fraud, negligence and unjust enrichment. These claims are only being brought forth in certain states, including but not limited to Alabama, California, Georgia, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Pennsylvania, Texas, Virginia and West Virginia. The National Highway Traffic Safety Administration previously found a total of 16 people in the United States had been killed by the exploding Takata airbag inflators, while another 250 had been injured. The inflators explode with too much force when exposed to certain conditions, which can send shrapnel flying into the cabin and severely injure the driver and passengers. [GN] GLOBAL QUALITY: Default Judgment in Styles Suit Denied as Moot -------------------------------------------------------------- In the case, VIVIAN STYLES, RAMON GOMEZ, FOR THEMSELVES AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. GLOBAL QUALITY, INC., ONE LINK LIMO, INC., and LANDMARK WORLDWIDE GROUP, INC., Defendants, Docket No. 155621/2017, Motion Seq. No. 003 (N.Y. Sup.), Judge Kathryn E. Freed of the New York County Supreme Court denied as moot the Plaintiffs motion for a default judgment against the Defendants. The case is a class action, commenced pursuant to New York Labor Law Section 663 and 198 and 12 New York Codes, Rules, and Regulations Section 142-2.2, to recover unpaid overtime compensation owed to Plaintiffs Styles, Gomez, and the others similarly situated who are or were employed by the Defendants. The Plaintiffs move, pursuant to CPLR 3215, for a default judgment against the Defendants. The captioned action was commenced by the filing of a summons and complaint on June 20, 2017. The Plaintiff thereafter served the Defendants with process. The latter thereafter joined issue by their answer filed Sept. 20, 2017. By order to show cause filed May 11, 2018, Phillips Nizer LLP moved to be relieved as the counsel for Defendants on the ground that it had not been paid for its legal services in the matter. Phillips Nizer's motion was granted by order entered June 19, 2018. The said order directed the Defendants to obtain new counsel within 30 days of entry and required them to appear for a preliminary conference on Oct. 23, 2018. Although the Plaintiffs' attorney appeared for the preliminary conference on Oct. 23, 2018, neither the Defendants nor anyone on their behalf attended. In an order issued that day and entered Oct. 25, 2018, the Court noted that the Defendants had defaulted in appearing and that the Plaintiffs' counsel intended to file a motion for default. The Court further directed all parties to appear for a compliance conference on March 26, 2019. On March 26, 2019, the Defendants again failed to appear for the scheduled discovery conference. In an order issued that day, the Court directed that the Defendants appear for a conference on July 16, 2019 and that, if they did not, the Court will consider imposing appropriate sanctions, including striking of pleadings, the granting of a default and/or the dismissal of the case, in accordance with 22 NYCRR Section 202.27. The order further directed the Plaintiffs' attorney to serve the Defendants with a copy of the order by certified mail, return receipt requested, and to provide proof of such service at the July 16, 2019 conference. Such proof of service has been provided to the Court. On July 16, 2019, the Defendants again failed to appear for the scheduled discovery conference despite the warning set forth in the March 27, 2019 order. By order entered July 17, 2019, the Court granted a default judgment against the Defendants due to their failure to appear and referred the case for an inquest on damages. It further directed plaintiffs to serve the order on all the parties and directed the Clerk of the Court to enter judgment against the Defendants upon proof of service of the order upon the Defendants. The July 17, 2019 order was served on all parties by first class and certified mail. On Jan. 10, 2020, the Plaintiffs filed the instant motion seeking a default judgment against the Defendants pursuant to CPLR 3215. The motion is denied as moot, however, since the relief sought has already been granted by the Court in its order entered July 17, 2019. Therefore, in light of the foregoing, Judge Freed denied as moot the Plaintiffs' motion. The matter is referred to a Special Referee for the purpose of conducting an inquest as to damages to be awarded to the Plaintiffs. A full-text copy of the District Court's April 21, 2020 Decision + Order is available at https://is.gd/cDvetz from Leagle.com. GLYNN COUNTY, GA: Underpays Detention Officers, Austin et al. Say ----------------------------------------------------------------- LANGSTON AUSTIN, and ERNEST FULLER III, on behalf of themselves and all others similarly situated, Plaintiffs v. GLYNN COUNTY, GEORGIA, Defendant, Case No. 2:20-cv-00073-LGW-BWC (S.D. Ga., July 6, 2020) is a collective action complaint brought against Defendant for their alleged willful violation of the Fair Labor Standards Act by failing to pay Plaintiffs and similarly situated employees overtime wages for all eligible hours worked. Plaintiffs were hired by Defendant as non-exempt Detention Officers -- Plaintiff Austin is currently employed and has been for at least 3 years, while Plaintiff Fuller was employed for approximately 20 months and ended on July 3, 2020. According to the complaint, Defendant totaled Plaintiffs' and other Detention Officers' hours every two weeks for payroll purposes and paid them for hours worked in the preceding two-week period every two weeks. The complaint asserts that Defendant underpaid Plaintiffs and other Detention Officers overtime wage by incorrectly and illegally calculating all of their applicable overtime. Glynn County, Georgia is a municipal corporation and political subdivision of the State of Georgia organized and existing under the Constitution of the State of Georgia. [BN] The Plaintiffs are represented by: Andrew Lampros, Esq. HALL & LAMPROS, LLP 400 Galleria Pkwy SE Suite 1150 Atlanta, GA 30339 Tel: (404) 876-8100 Fax: (404) 876-3477 Email: alampros@hallandlampros.com - and – Joseph Padgett, Esq. RODEN LAW 1111 Glynco Parkway, Suite 30-B Brunswick, GA 31525 Tel: (912) 303-5850 Email: jpadgett@rodenlaw.com - and – Thomas Withers, Esq. GILLEN, WITHERS & LAKE, LLC 8 East Liberty Street Savannah, GA 31401 Tel: (912) 447-8400 Fax: (912) 629-6347 Email: twithers@gwllawfirm.com GPB CAPITAL: Faces Class Action Over Investment Scheme ------------------------------------------------------ Mitch Mitchell, writing for Fort Worth Star-Telegram, reports that lawyers are cautioning victims of an investment scheme that allegedly bilked more than 2,000 people out of $1.8 billion to take action. Anyone who invested with GPB Capital poured money into a Ponzi scheme, said Joseph Peiffer, managing partner of Peiffer Wolf Carr Kane & Conway. "If you invested in this, you are going to lose your money," Peiffer said. A class-action complaint was filed on June 30 in federal court in Austin to help victims go after GPB Capital and its affiliate organizations. Lawyers with Peiffer have also filed nearly three dozen arbitration claims in an attempt to recover money for the clients, Peiffer said. Officials with GPB Capital and partner Ascendant Capital did not immediately respond to a request for comment. The lawsuit describes a basic Ponzi scheme, where the old investors are paid with proceeds obtained from new investors. Investors were promised an 8% return, the lawsuit says. Loretta DeHay, 62, of Austin, said she lost $100,000 of her family's savings that she and her late husband took decades to build. "This is a nightmare for me," she said. "I was assured that this was a safe investment that would generate retirement income for me that I could rely on," DeHay said. "My brokerage firm sold me on GPB's automotive division. I trusted my broker, and he recommended what turned out to be a Ponzi scheme. Now, I'm fighting to hold GPB, the brokerage firm, and anyone else who profited off of this accountable." According to the lawsuit, GBP and Austin-based Ascendant Capital built an intricate network of interlinked organizations to rope in the new investors needed to keep the companies afloat. At its height, sales commissions reached $800,000 a month, the lawsuit said. And plan administrators siphoned off investor funds in other ways, so much so that the 8% return promised to investors was impossible, the lawsuit said. Auditors and the fund administrator papered over those broken promises, the lawsuit said, at times issuing documents and audits that were false and misleading — all while receiving handsome fees for their efforts. Many of the retirees who fell victim to this scheme are concentrated in Texas, Florida and Arizona, according to a news release from their attorneys. Among its assortment of funds, the GPB Automotive portfolio is comprised of auto dealerships attractive to investors, the lawsuit states. GPB Capital's Prime Automotive Group was "run into the ground" and is now in jeopardy of losing its association to leading auto manufacturers, the lawsuit says. [GN] GSK CONSUMER: Faces Class Action Over Benefiber 100% Natural Claim ------------------------------------------------------------------ John O'Brien, writing for Legal Newsline, reports that prebiotic powders sold by GSK Consumer Health aren't so natural, a class action lawsuit says. Susan Swetz filed her case June 19 against the company's Benefiber products, which, she says, contain wheat dextrin. As a synthetic ingredient, its inclusion in Benefiber dooms the representation that it is 100% natural. The case says the National Advertising Division has determined the claim is misleading. "The complex chemical process used to create the wheat dextrin in the Products is not superfluous. Rather it is integral to conferring the benefits that consumers desire including its high fiber content, viscosity, solubility, and sweetness," the lawsuit says. [GN] H&R BLOCK: HRB Tax Appeals Ruling in Olosoni Suit to 9th Circuit ---------------------------------------------------------------- Defendants HRB Tax Group, Inc., and HRB Digital LLC filed an appeal from a court ruling in the lawsuit titled Pelanatita Olosoni, et al. v. HRB Tax Group, Inc., et al., Case No. 3:19-cv-03610-SK, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, on May 17, 2019, a putative class action complaint was filed against H&R Block, Inc., HRB Tax Group, Inc. and HRB Digital LLC in the Superior Court of the State of California, County of San Francisco (Case No. CGC-19576093) styled Olosoni and Snarr v. H&R Block, Inc., et al. The case was removed to the United States District Court for the Northern District of California on June 21, 2019 (Case No. 3:19-cv-03610-SK). The Plaintiffs filed a first amended complaint on August 9, 2019, dropping H&R Block, Inc. from the case. In their amended complaint, the Plaintiffs seek to represent classes of all persons, between May 17, 2015 and the present, who (1) paid to file one or more federal tax returns through H&R Block(TM)'s internet-based filing system, (2) were eligible to file those tax returns for free through the H&R Block Free File offer of the IRS Free File Program, and (3) resided in and were citizens of California at the time of the payments. The Plaintiffs generally allege unlawful, unfair, fraudulent and deceptive business practices and acts in connection with the IRS Free File Program in violation of the California Consumers Legal Remedies Act, California Civil Code Sections 1750, et seq., California False Advertising Law, California Business and Professions Code Sections 17500, et seq., and California Unfair Competition Law, California Business and Professions Code Sections 17200 et seq. The plaintiffs seek declaratory and injunctive relief, restitution, compensatory damages, punitive damages, interest, attorneys' fees and costs. The appellate case is captioned as PELANATITA OLOSONI; DEREK SNARR, on behalf of themselves, the general public, and those similarly situated, Plaintiffs-Appellees v. HRB TAX GROUP, INC.; HRB DIGITAL LLC, Defendants-Appellants, and H&R BLOCK, INC., Defendant, Case No. 19-17441, in the United States Court of Appeals for the Ninth Circuit.[BN] HALLIBURTON CO: Tenth Circuit Appeal Filed in LeBlanc FLSA Suit --------------------------------------------------------------- Defendant Halliburton Energy Services, Inc., filed an appeal from a court ruling in the lawsuit styled LeBlanc, et al. v. Halliburton Energy Services, Inc., Case No. 2:17-CV-00718-KG-GJF, in the U.S. District Court for the District of New Mexico, Las Cruces. As previously reported in the Class Action Reporter, on July 10, 2017, Brent LeBlanc filed a Class and Collective Action Complaint in which he alleged the Defendant failed to pay him and similarly situated workers overtime in violation of the Fair Labor Standards Act, and the New Mexico Minimum Wage Act. The Defendant filed an Answer to the Complaint on Aug. 28, 2017. The appellate case is captioned as LeBlanc, et al. v. Halliburton Energy Services, Inc., Case No. 19-2202, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiffs-Appellees BRENT LEBLANC, individually and on behalf of all others similarly situated, JEREMY O. FISHER, TODD GUFFY, MARSHALL E. HATCHER, JESSE MARKER and THOMAS RUSSELL are represented by: Richard Jennings Burch, Esq. David Moulton, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713-877-8788 E-mail: rburch@brucknerburch.com - and - Andrew Wells Dunlap, Esq. Michael Andrew Josephson, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 E-mail: adunlap@mybackwages.com mjosephson@mybackwages.com Defendant-Appellant HALLIBURTON ENERGY SERVICES, INC., is represented by: Paige T. Bennett, Esq. Mark D. Temple, Esq. REED SMITH, LLP 811 Main Street, Suite 1700 Houston, TX 77002 Telephone: (713) 469-3800 E-mail: pbennett@reedsmith.com mtemple@reedsmith.com - and - Jeffrey L. Lowry, Esq. Charles J. Vigil, Esq. RODEY DICKASON SLOAN AKIN & ROBB, P.A. 201 Third Street NW, Suite 2200 Albuquerque, NM 87102 Telephone: 505/765-5900 E-mail: jllowry@rodey.com cvigil@rodey.com HAMILTON, ONTARIO: $250 Red Hill Valley Parkway Suit Moving Slowly ------------------------------------------------------------------ Don Mitchell of Global News (Canada) reports that a lawyer from one of two firms involved in a multi-million-dollar lawsuit alleging improper design and maintenance of the Red Hill Valley Parkway (RHVP) says the representative plaintiffs have asked a judge to certify their class action against the City of Hamilton. Robert Hooper, from the firm Grosso Hooper, says the families of crash victims Corinne Klassen and Michael Sholer filed documents before a justice and have asked for their $250-million class action to go forward. However, Hooper says due to the COVID-19 pandemic the case is not moving as quickly as he and his clients had hoped. "We will hopefully meet with Justice (Gerald E.) Taylor either by video conference or in person in the next month or six weeks to set a timetable for the ultimate hearing of certification, which we are guessing right now will be some sometime in the spring of 2021," said Hooper. Two Hamilton law firms, Grosso Hooper and Scarfone Hawkins, are representing drivers who've crashed on the RHVP since its opening in 2007. The two families at the forefront of the claim are relatives of Klassen, a London homemaker who was left disabled by a crash on the highway in 2007, and Sholer, who died in a 2017 crash on the RHVP. The suit draws much of its evidence from a 2013 Tradewind Scientific report, which analyzed friction levels on the parkway and suggested some safety issues with the roadway. The audit recommended "remedial actions" and an investigation of the asphalt after friction values were discovered to be "below or well below" U.K. safety standards, which were used as a benchmark in the study. The report came to light in 2018 when the new director of engineering services for the City of Hamilton came across the Tradewind study and its recommendations for "further examination of the pavement surface, composition and wear performance" and "more investigatory work." The lawsuit alleges three failures by the city tied to the construction of the roadway and two connected to failing to disclose the third-party report to the public. The motion by Hooper's clients to certify the suit comes a week before the resumption of the Red Hill Valley Parkway Inquiry (RHVPI)--commissioned by the city in February of 2019 to answer questions about the Tradewind report. Although the legal action and inquiry are "apples and oranges" and not dependant on each other, according to Hooper, he and his clients still have some interest in its potential findings. He expects that with delays tied to the ongoing pandemic, RHVPI Justice Herman Wilton-Siegel will likely not start the inquiry this fall as first anticipated. "I think the public statements so far from his counsel, Rob Centa, have indicated that that process hasn't gone quite as fast as they hoped for various reasons, including the pandemic." In a release at rhvpi.ca, commissioner Wilton-Siegel said the inquiry is still in the "document collection and research phase" and has yet to interview persons of interest connected to the case. The post says the coronavirus pandemic "resulted in some delay" due to physical distancing and issues connecting with some participants and non-participants tied to the investigation. In February, Wilton-Siegel excluded the two law firms' clients from the probe, saying it was in the best interest of the inquiry to draw from a more "broad-based" coalition of concerned citizens sharing personal experiences connected to crashes on the parkway. The RHVPI virtual public hearing took place on Tuesday, July 7 at 10 a.m. In a statement about the inquiry, city representatives noted that judicial inquiries "are a way for governments to examine issues and problems outside the regular legislative process," and can help communities with an "independent, neutral examination of public issues. Public inquiries can also help shape public policy and make recommendations that will serve the public in future." [GN] HANIL DEVELOPMENT: Denial of Bid to Intervene in Hahn Upheld ------------------------------------------------------------ In the case, HARRY HAHN et al., Plaintiffs and Respondents, v. HANIL DEVELOPMENT, INC., et al., Defendants and Respondents; MYUNG JA KANG et al., Objectors and Appellants, Case No. B291568 (Cal. App.), the Court of Appeals of California, Second District, Division Three, upheld the trial court's order denying the Objectors' motion to intervene. Each of the class members purchased a membership in Aroma Spa & Sports, LLC, a spa and fitness center located in the Koreatown neighborhood of Los Angeles. The class members paid initiation fees ranging between $10,000 and $30,000 in exchange for either a 10-year or lifetime membership at Aroma. The complaint asserted the memberships violated the Health Studio Services Act (Civil Code section 1812.80 et seq.) and the Unfair Competition Law (Business and Professions Code section 17200 et seq.). Representative Plaintiffs Hahn and Hong initiated the class action on Aug. 30, 2011, and filed the operative complaint on May 11, 2012 against Defendants Hanil Development and Aroma. The court certified a class of all individuals and/or families who purchased lifetime memberships and 10-year memberships at Aroma Spa Resort during the period of November 2000 to present. The cause was extensively litigated but the parties ultimately negotiated a settlement shortly before the trial was to take place. The court granted the Representative Plaintiffs' motion for preliminary approval of the settlement on April 10, 2015, and set July 10, 2015 as the deadline for class members to object to or reject the terms of the settlement. More than 100 of the 301 class members objected to the settlement. On July 16, 2015, a group of 10 class members filed a motion asserting that one of the Representative Plaintiffs promised them a greater recovery than was provided by the settlement. The class members requested that the court retroactively extends the date to opt out of the class action so they could then opt out of the class. The court denied the motion. Meanwhile, the Representative Plaintiffs filed a motion for final approval of the settlement. The same 10 class members submitted a written opposition to the motion. After hearing argument, the court requested and received supplemental briefing from the 10 class members and the parties. On Oct. 2, 2015, the court granted the motion for final approval of the class action settlement and dismissed the action pursuant to the terms of the settlement agreement. The objectors appealed from the judgment. Guided by the Supreme Court's decision in Eggert v. Pac. States S. & L. Co., holding that the unnamed class members may not appeal from a judgment or settlement in a class action unless they are parties to the action, the division dismissed the appeal. The remittitur issued on March 15, 2018. On May 16, 2018, the objectors filed a motion for mandatory or permissive intervention under Code of Civil Procedure section 387. Although they acknowledged that a motion for intervention must be timely, they argued there is no way that they could have known that they needed to intervene before Jan. 29, 2018, when the Supreme Court issued its opinion in Hernandez. The Representative Plaintiffs and the Defendants opposed the motion. They argued the motion was untimely because the objectors knew by April 10, 2015, when the court granted preliminary approval of the class settlement, that their interests in the litigation were not aligned with or adequately represented by the Representative Plaintiffs. Further, Hernandez did not change the legal landscape -- it only reaffirmed Eggert. The Representative Plaintiffs and the Defendants also argued they would be prejudiced if the motion were granted because payments made to the class members and the counsel under the terms of the settlement could not be retrieved. Indeed, 41 of the 94 objectors received and cashed their settlement payment checks. The Representative Plaintiffs emphasized that intervention at this late date would create "a logistical accounting nightmare for all parties." The court denied the motion on June 8, 2018. The objectors filed a timely notice of appeal. The Objectors contend the trial court abused its discretion in finding their motion for intervention untimely under the totality of the circumstances of the case. According to them, few would have foreseen the overturning of decades old precedent by Hernandez in favor of a 75-year old Eggert that has been consistently ignored. Viewing the objectors' proposed intervention, the Appellate Court holds that the trial court did not abuse its discretion when it denied the motion as untimely. Although no statutory time limit is placed on motions to intervene, it is significant that the objectors took no steps to intervene in the litigation until May 16, 2018, several years after the class action settlement had been reached. But on July 16, 2015, many of them had moved to extend the date to opt out of the class action retroactively because they were displeased with the settlement and believed it to be unfair. Thus, their own actions reflect that these objectors knew no later than July 2015 that their interests in the litigation were not being adequately represented. Moreover, all the objectors should reasonably have suspected their interests were not adequately represented even earlier -- i.e., by February 2015 when the parties filed a notice of class settlement, or by April 2015 when the court granted preliminary approval of the proposed settlement. In addition, allowing the objectors to intervene at this late stage would have upended the settlement reached by the Representative Plaintiffs and the Defendants in 2015 -- an untenable result. As noted by the class administrator, settlement checks were mailed to class members nearly two years ago, in April 2018. And 41 of the 94 objectors involved in th appeal received, and cashed, their settlement checks prior to the hearing on their motion to intervene in the litigation. These issues notwithstanding, the objectors' attempt to justify the delay of approximately three years between the court's preliminary approval of the settlement and their motion for intervention by pointing to the Supreme Court's recent Hernandez decision. They argue their motion was timely because, they contend, prior to Hernandez, the class members had standing to appeal without having to intervene in the litigation and it would therefore be inequitable to apply Hernandez retroactively. The objectors also argue that if Hernandez does apply to the case, then the settlement notice violates due process because it failed to inform class members that they must intervene in the class action to have standing to appeal. The Appellate Court finds no merit in these arguments. First, the objectors incorrectly argue that Hernandez effected a change in the law. In January 2018, the Supreme Court issued its opinion in Hernandez, affirming the appellate court's determination that the unnamed class members may not appeal a class judgment, settlement, or attorney fees award unless they intervene in the action. Specifically, Hernandez confirmed that the standing rule announced in Eggert remains the rule in California and requires that a class member wishing to challenge a judgment pursuant to settlement on appeal must have become a party of record in the trial court, either by formally intervening in the class action or by filing a motion to vacate the judgment. And before Hernandez, Eggert was binding Supreme Court precedent. Thus, the objectors failed to comply with the Eggert rule at their own peril. Second, Hernandez expressly addressed, and rejected, the objectors' argument that the Eggert rule should not apply to class action settlements. Following Eggert and requiring intervention does not discourage the unnamed class members from filing a meritorious appeal. Rather, it continues a manageable process under a bright-line rule that promotes judicial economy by providing clear notice of a timely intent to challenge the class representative's settlement action. Formal intervention also enables the trial court to review the motion to intervene in a timely manner. Equally unpersuasive is the objectors' argument that Hernandez should not be applied retroactively to this case because retroactive application would be unfair. The main problem with the argument against retroactive application of Hernandez is that Hernandez does not establish a new rule of law. Rather, Hernandez merely reaffirmed and directly applied a well-established rule of law. Hernandez did not expand or modify Eggert, such that Hernandez could reasonably be construed to constitute a new application of an old rule. The rule requiring that one must be a party of record to have standing to appeal has been the rule in California for over 75 years, since Eggert. And because Hernandez did not announce new law, it simply becomes part of the body of case law of the state, and under ordinary principles of stare decisis applies in all cases not yet final. Finally, the Judge rejects the objectors' contention that the May 26, 2015 notice regarding the proposed settlement violated their due process rights. Procedural due process requires that affected parties be provided with the right to be heard at a meaningful time and in a meaningful manner. To satisfy due process, the notice provided to the class members regarding a settlement must fairly apprise the class members of the terms of the proposed compromise and of the options open to dissenting class members. Under the California Rules of Court governing class actions, notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for them to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement. In the case, the Appellate Court finds that there is no indication that the settlement notice failed to disclose the process for objecting to the settlement, or that it omitted any other relevant information that was required by the court to be included in the notice. The objectors do not argue otherwise. Instead, the objectors claim that the settlement notice violated their right to due process by failing to inform them that they must become a party of record to have standing to appeal from the judgment to be entered. This argument suggests that a settlement notice or settlement agreement must advise class members that if they wish to appeal, they must also intervene. The objectors provide no authority for such a proposition, and we decline to adopt such a rule. In short, the objectors' motion for intervention was untimely. The Appellaete Court therefore affirmed the order denying intervention. The Representative Plaintiffs and the Defendants will recover their costs on appeal. A full-text copy of the Appellate Court's April 21, 2020 Opinion is available at https://is.gd/I1GMJr from Leagle.com. Moon & Dorsett, Dana M. Dorsett and Jeremy Cook -- dm@danamoon.com -- for Objectors and Appellants. Engstrom, Lipscomb & Lack and Steven J. Lipscomb -- slipscomb@elllaw.com -- Law Offices of Henry H. Bahk and Henry H. Bahk; Stalwart Law Group, Paul A. Traina -- paul@stalwartlaw.com -- and Ian P. Samson -- ian@stalwartlaw.com -- for Plaintiffs and Respondents. Lee, Hong, Degerman, Kang & Waimey, Douglas Smith -- dsmith@lhlaw.com -- Yvonne Dalton -- yvonne.dalton@lhlaw.com -- and Matthew J. Soroky -- msoroky@lewitthackman.com -- for Defendants and Respondents. HARLEY-DAVIDSON MOTOR: Bouas Stayed Pending Resolution of Garcia ---------------------------------------------------------------- Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois granted the Defendant's Motion to Stay the case, KENNETH BOUAS, Plaintiff, v. HARLEY-DAVIDSON MOTOR COMPANY GROUP, LLC, Defendant, Case No. 3:19-cv-1367-NJR (S.D. Ill), pending resolution of Garcia v. Harley-Davidson Motor Co., No. 3:19-cv-02054. The case is one of three duplicative class actions filed against Harley-Davidson currently pending in federal courts in California, Arizona, and Illinois. Harley-Davidson asks the Court to stay all proceedings and deadlines in the action pending resolution of a previously filed, substantially-related class action currently pending in the Northern District of California, i.e., Garcia. According to Harley-Davidson, discovery in Garcia is well underway, with expert discovery relating to class certification set to begin in June and Garcia's motion for class certification due in October. Bouas has not filed a response and thus the motion is unopposed. The first-to-file rule provides that a district court may, for purposes of judicial administration, dismiss or stay a suit when it is duplicative of a parallel action that is already pending in another federal court. While the Seventh Circuit Court of Appeals does not rigidly adhere to the first-to-file rule, the decision to invoke the rule is part of the district court's inherent power to administer their dockets so as to conserve scarce judicial resources by avoiding duplicative litigation. The Seventh Circuit has further stated that staying a case, rather than dismissing it, may be appropriate pending the outcome of an earlier-filed lawsuit addressing the same issues. Having considered the Defendant's motion, and in light of the Plaintiffs' lack of opposition, Judge Rosenstengel granted the Motion to Stay. All proceedings and deadlines in the case are stayed pending resolution of Garcia. A full-text copy of the District Court's April 17, 2020 Order is available at https://is.gd/s1LU1v from Leagle.com. HARVEY WEINSTEIN: Accusers to Get $19 Million in Settlement ----------------------------------------------------------- Bradley Lamb of Upnews Info reports that the New York Lawyer General's workplace has requested a virtually $19 million settlement for gals who ended up sexually assaulted and raped at the arms of disgraced Hollywood govt Harvey Weinstein. "Harvey Weinstein and The Weinstein Company failed their female employees. After all the harassment, threats, and discrimination, their victims are finally receiving some justice," New York Lawyer Normal Letitia James explained. In accordance to the Normal Attorney's workplace, the fund will be for "women who experienced a hostile work environment, sexual harassment, and gender-based discrimination while working at The Weinstein Company, as well as sexual abuse by Harvey Weinstein." Weinstein was convicted on a single rely of prison intercourse act for forcibly executing oral intercourse on a girl in 2006 and a single rely of 3rd-diploma rape for a 2013 assault on yet another girl. He obtained 23 a long time for his crimes and its most likely that he will shell out the relaxation of his daily life powering bars. [GN] HARVEY WEINSTEIN: To Settle Sexual Misconduct Class Suit for $19MM ------------------------------------------------------------------ Ashley Cullins, writing for The Hollywood Reporter, reports that an $18.875 million settlement fund will be created as part of a deal to resolve a class action complaint against Harvey Weinstein and The Weinstein Co. The settlement resolves a 2017 class action from women alleging Weinstein "engaged in a pattern of sexual harassment and abuse" as well as a 2018 lawsuit from the New York Attorney General's Office that alleged he created a hostile work environment and the conduct was aided and abetted by the company in violation of the state's human rights laws. New York Attorney General Letitia James praised the settlement on Twitter, writing, "After all the harassment, threats, and discrimination, these survivors are finally receiving some semblance of justice. I thank them for bravely sharing their stories." Defendants still deny all allegations, but the parties agree its in everyone's interest to resolve the claims. The accusers will forever release the defendants, who include TWC board members, execs and Bob Weinstein, from claims arising from the alleged sexual misconduct, and James' office will be barred from prosecuting any related action. The insurance companies will pay out a total of more than $46.7 million as part of the global settlement. From that, the $18.8 million settlement fund will be created and each class member can submit a form describing her experience and its effects. Tier 1 claimants will receive a payment between $7,500 and $150,000. Tier 2 claimants will receive between $7,500 and $750,000, and those claims require an interview with a special master who is assigned to evaluate them. Separately, $5.4 million will be paid to an individual plaintiffs' settlement fund, which goes to a group of women who negotiated a separate settlement. Those women include Weinstein's former assistant Sandeep Rehal and actress Paz de la Huerta, each of whom will receive $500,000. The proposed settlement includes a $12 million payment to defense lawyers at Seyfarth Shaw, plus additional attorneys' fees in an amount to be determined for the plaintiffs' lawyers. Further, "The Defendants expressly release any member of the Settlement Class from any confidentiality, non-disclosure, or non-disparagement agreement arising out of or related to any Sexual Misconduct Claims." Weinstein's lawyer Imran Ansari on June 30 sent The Hollywood Reporter a statement. "With closure in sight on one front, Mr. Weinstein remains intently focused in defending himself on all remaining legal matters, including the appeal of his criminal conviction, civil lawsuits, and the charges filed against him in LA. He continues to pursue all legal recourse available to him and remains steadfast in the defense of those matters." The settlement excludes several accusers including Ashley Judd, Rose McGowan, Alexandra Canosa, Wedil David and Dominique Huett. If any of the latter three parties votes to accept the plan, they would receive $150,000 from a separate $1.5 million segregated defense fund. Attorneys Douglas Wigdor and Kevin Mintzer, who represent six women accusing Weinstein of sexual misconduct, on June 30 issued a lengthy statement decrying the deal. "The proposed settlement is a complete sellout of the Weinstein survivors and we are surprised that the Attorney General could somehow boast about a proposal that fails on so many different levels," it reads, in part. "While we do not begrudge any survivor who truly wants to participate in this deal, as we understand the proposed agreement, it is deeply unfair for many reasons." The claim forms, details about what the special master will be evaluating and a press release from the attorneys at FeganScott and Hagens Berman are included in the document that's posted below. A New York federal judge will decide whether to grant preliminary approval of the settlement. Here's the full statement from Wigdor and Mintzer: "The proposed settlement is a complete sellout of the Weinstein survivors and we are surprised that the Attorney General could somehow boast about a proposal that fails on so many different levels. While we do not begrudge any survivor who truly wants to participate in this deal, as we understand the proposed agreement, it is deeply unfair for many reasons. First, Harvey Weinstein accepts no responsibility for his actions. Second, Harvey Weinstein isn't paying any money toward the settlement despite now having been found guilty in Manhattan criminal court. Third, the director defendants, who we allege had knowledge of Weinstein's behavior, will be receiving millions of dollars to reimburse their defense costs. Fourth, if this settlement were approved by the courts, survivors who do not wish to participate in settlement but would prefer instead to hold Harvey Weinstein accountable, will be unable to pursue the multi-billion dollar insurance companies and the directors because they will receive legal releases. And Fifth, the class action lawyers will be seeking millions of dollars in fees for an objectively unsuccessful result. We are completely astounded that the Attorney General is taking a victory lap for this unfair and inequitable proposal, and on behalf of our clients, we will be vigorously objecting in court." [GN] HOME DEPOT: Mendiola Sues Over Inadequate COBRA Health Plan Notice ------------------------------------------------------------------ TRAVIS MENDIOLA, individually and on behalf of all others similarly situated, Plaintiff v. HOME DEPOT U.S.A., INC. and THE ADMINISTRATIVE COMMITTEE HOME DEPOT U.S.A., INC., Defendants, Case No. 8:20-cv-01561 (M.D. Fla., July 9, 2020) is a class action against the Defendants for violations of the Employee Retirement Income Security Act of 1974. According to the complaint, the Defendants failed to provide the Plaintiff and all others similarly situated members of the Home Depot Welfare Benefits Plan with adequate notice, as prescribed by the Consolidated Omnibus Budget Reconciliation Act (COBRA), about their right to continue their health coverage upon the occurrence of a qualifying event as defined by the statute. Rather than including all information required by law, written in a manner calculated to be understood by the average plan participant, Home Depot's COBRA notification process instead offers only part of the legally required information in haphazard and piece-meal fashion. In addition, the Defendants failed to correctly identify the plan and the plan administrator in violation of Sec. 2590.606-4(b)(4)(i) of the Code of Federal Regulations. As a result of receiving the defective COBRA enrollment notice, the Plaintiff and Class members failed to understand the notice and, thus, they could not make an informed decision about their health insurance and lost health coverage. Home Depot U.S.A., Inc. is a home improvement retailer in the United States, with principal place of business located in Cobb County, Georgia. [BN] The Plaintiff is represented by: Luis A. Cabassa, Esq. Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: lcabassa@wfclaw.com bhill@wfclaw.com gnichols@wfclaw.com - and – Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 257-0572 E-mail: MEdelman@forthepeople.com HOMESERVE USA: Leone Suit Seeks to Certify Class ------------------------------------------------ In the class action lawsuit styled as MARK and AMANDA LEONE, on behalf of themselves and all others similarly situated v. HOMESERVE USA CORP.; HOMESERVE USA REPAIR MANAGEMENT CORP.; HOMESERVE USA ENERGY SERVICES, LLC; and SOUTH JERSEY GAS, Case No. 1:19-cv-20505-PSD-TR (D.N.J.), the Plaintiffs will move the Court on July 17, 2020, for an order granting their motion for class certification. HomeServe USA is the North American arm of HomeServe plc, a London Stock Exchange-listed company with operations in the U.S., Canada, UK, France, and Spain.[CC] The Plaintiff is represented by: Stephen P. DeNittis, Esq. Joseph A. Osefchen, Esq. Shane T. Prince, Esq. DeNITTIS OSEFCHEN & PRINCE, P.C. 525 Route 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 Facsimile: (856) 797-9978 E-mail: sdenittis@denittislaw.com The Defendants are represented by: Scott Casher, Esq. Konrad R. Krebs, Esq. WHITE & WILLIAMS, LLP Liberty View 457 Haddonfield Road, Suite 400 Cherry Hill, NJ 08002-2220 - and - Christopher Gibson, Esq. Trevor J. Cooney, Esq. ARCHER & GREINER One Centennial Square PO Box 3000 Haddonfield, NJ 08033-0968 IDEANOMICS INC: Glancy Prongay Reminds of August 27 Deadline ------------------------------------------------------------ Glancy Prongay & Murray LLP ("GPM"), a national investors rights law firm, on June 29 disclosed that a class action lawsuit has been filed on behalf of investors who purchased Ideanomics, Inc. ("Ideanomics" or the "Company") (NASDAQ: IDEX) common stock between March 20, 2020 and June 25, 2020, inclusive (the "Class Period"). Ideanomics investors have until August 27, 2020 to file a lead plaintiff motion. If you suffered a loss on your Ideanomics 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 https://www.glancylaw.com/cases/ideanomics-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 June 25, 2020, Hindenburg Research issued a series of tweets stating that Ideanomics "is an egregious & obvious fraud." Hindenburg claimed that it found evidence that Ideanomics "doctored photos in its PR to suggest it owns/operates" a facility. Hindenburg further stated that it had an investigator who visited Ideanomics' "supposed MEG sales center," and that the "facility is actually operated by almost 100 sales groups," that had never heard of Ideanomics. Additionally, Hindenburg claimed that its investigator called five of Ideanomics' purported electric vehicle customers, and that none were aware of Ideanomics, nor could they confirm doing business with Ideanomics. The same day, J Capital Research published a report, corroborating Hindenburg's allegations. Specifically, J Capital "called all the 'buyers' named in [the Company's] press releases in June. Not a single one had made a purchase. One of them thanked us for alerting them to 'fake news.'" On this news, the Company's share price fell $0.65, or more than 21%, to close at $2.44 per share on June 25, 2020, thereby injuring investors. Then, on June 26, 2020, the Company issued a press release, seeking to "clarify the status" of its purported hub in Qingdao, China. Therein, Ideanomics walked back certain of its prior statements regarding the MEG Center, stating its as launching three phases of its MEG Center that will eventually total one million square feet. The first phase occupies only 215,000 square feet. On this news, the Company's share price fell $0.98, or 40%, to close at $1.46 per share on June 26, 2020, thereby injuring investors further. 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 Ideanomics' MEG Center in Qingdao was not "a one million square foot EV expo center"; (2) that the Company had been using doctored or altered photographs of the purported MEG Center in Qingdao; (3) that the Company's electric vehicle business in China was not performing nearly as strong as Ideanomics had represented; and (4) that, as a result, the Company's public statements were materially false and misleading at all relevant times. If you purchased Ideanomics common stock during the Class Period, you may move the Court no later than August 27, 2020 to ask the Court to appoint you as lead plaintiff. To be a member of the Class 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. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, 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 and Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 www.glancylaw.com shareholders@glancylaw.com [GN] IDEANOMICS INC: Kessler Topaz Reminds of August 27 Deadline ----------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP alerts investors that a securities fraud class action lawsuit has been filed against Ideanomics, Inc. (NASDAQ: IDEX) ("Ideanomics") on behalf of those who purchased or otherwise acquired Ideanomics common stock between March 20, 2020 and June 25, 2020, inclusive (the "Class Period"). Investors who purchased or otherwise acquired Ideanomics common stock during the Class Period may, no later than August 27, 2020, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please click https://www.ktmc.com/ideanomics-inc-class-action?utm_source=PR&utm_medium=link&utm_campaign=ideanomics. According to the complaint, Ideanomics is a global company focused on facilitating the adoption of commercial electric vehicles ("EV") and developing next generation financial services and Fintech products. The Class Period commences on March 20, 2020, when Ideanomics issued a press release in which it announced "that the Qingdao-MEG Sales Center, branded as Mobile Energy Group Center, is scheduled to start sales operations by May 1." Throughout the Class Period, Ideanomics continued to laud its EV expo center, claiming the MEG Center is "the largest auto trading market in Qingdao," China. However, the truth was eventually revealed. According to the complaint, on June 25, 2020, analyst Hindenburg Research issued a series of tweets in which it called Ideanomics "an egregious & obvious fraud." Hindenburg asserted that it found evidence that Ideanomics had doctored photos for use in its press releases to suggest that it owns or operates a vehicle sales center in Qingdao, China, when it in fact does not. Hindenburg further asserted that it had an investigator go to Ideanomics' purported MEG Center in Qingdao, China, where the investigator was unable to find any trace of Ideanomics or its purported MEG Center. Also, on June 25, 2020, analyst J Capital Research issued a report on Ideanomics entitled "Champion of Promotes". J Capital Research wrote, in part, that "Ideanomics . . . is a zero. The company changes its name and promotional story so frequently that it's hard to keep up. One thing remains a constant, despite all the press releases, buzzwords and hype: shareholders get wiped out." J Capital Research continued, in a tweet, that "[w]e called all the 'buyers' named in [Ideanomics'] press releases in June. Not a single one had made a purchase. One of them thanked us for alerting them to 'fake news.'" Following this news, Ideanomics' stock price fell from its June 24, 2020 close of $3.09 to a June 25, 2020 close of $2.44 per share, a one day drop of $0.65 or approximately 21%. Then, on June 26, 2020, Ideanomics issued a press release in which it sought to "clarify the status" of its purported EV hub in Qingdao, China. In this release, Ideanomics walked back certain of its prior statements regarding the MEG Center in Qingdao, stating that it was launching three phases of its MEG Center that will eventually total one million square feet. The first phase, according to Ideanomics, occupies only 215,000 square feet. Following this news, the stock price continued to fall on June 26, 2020, dropping to a close of $1.46 per share. This represents a two day drop of approximately 53%. The complaint alleges that throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (i) Ideanomics' MEG Center in Qingdao was not "a one million square foot EV expo center"; (ii) Ideanomics had been using doctored or altered photographs of the purported MEG Center in Qingdao; (iii) Ideanomics' EV business in China was not performing nearly as strong as Ideanomics had represented; and (iv) as a result, Ideanomics' public statements were materially false and misleading at all relevant times. Ideanomics investors who wish to discuss this securities fraud class action lawsuit and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (844) 877-9500 (toll free) or at info@ktmc.com. Ideanomics investors may, no later than August 27, 2020, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. For more information about Kessler Topaz Meltzer & Check, please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. Adrienne Bell, Esq. 280 King of Prussia Road Radnor, PA 19087 (844) 877-9500 (toll free) (610) 667-7706 info@ktmc.com [GN] IDEANOMICS INC: Kirby McInerney Reminds of August 27 Deadline ------------------------------------------------------------- The law firm of Kirby McInerney LLP on June 30 disclosed that a class action lawsuit has been filed in the U.S. District Court for the Southern District of New York on behalf of those who acquired Ideanomics, Inc. ("Ideanomics" or the "Company") (NASDAQ: IDEX) securities during the period from March 20, 2020 through June 25, 2020. Investors have until August 27, 2020 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that the Company failed to disclose that: (i) Ideanomics' MEG Center in Qingdao was not "a one million square foot EV expo center;" (ii) the Company had been using doctored or altered photographs of the purported Mobile Energy Global ("MEG") Center in Qingdao; and (iii) the Company's electric vehicle business in China was not performing nearly as strong as Ideanomics had represented. On June 25, 2020, analyst Hindenburg Research issued a series of tweets in which it called Ideanomics "an egregious & obvious fraud" and asserted that it found evidence that Ideanomics had doctored photos for use in its press releases to suggest that the Company owns or operates a vehicle sales center in Qingdao, China, when it in fact does not. On the same day, analyst J Capital Research tweeted that, "[w]e called all the 'buyers' named in [Ideanomics'] press releases in June. Not a single one had made a purchase. One of them thanked us for alerting them to 'fake news.'" On this news, Ideanomics' share price fell $0.65, or 21.0%, to close at $2.44 per share on June 25, 2020. On June 26, 2020, Ideanomics walked back certain of its prior statements regarding the MEG Center in Qingdao, stating that it was launching three phases of its MEG Center in Qingdao to eventually total one million square feet but that the first stage was only 215,000 square feet. On this news, Ideanomics' share price fell $0.98, or 40.2%, to close at $1.46 per share on June 26, 2020. If you acquired Ideanomics securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP -- http://www.kmllp.com-- is a New York-based plaintiffs' law firm concentrating in securities, antitrust, and whistleblower litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: www.kmllp.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Kirby McInerney LLP Thomas W. Elrod, Esq. (212) 371-6600 investigations@kmllp.com [GN] IDEANOMICS INC: Portnoy Law Firm Investigates Securities Claims --------------------------------------------------------------- The Portnoy Law Firm advises Ideanomics, Inc. (NASDAQ: IDEX) investors that the firm has initiated an investigation into possible securities fraud, and may file a class action on behalf of investors. Investors are encouraged to contact attorney Lesley F. Portnoy, by phone 310-692-8883 or email: lesley@portnoylaw.com, to discuss their legal rights, or click here to join the case via www.portnoylaw.com. The Portnoy Law Firm can provide a complimentary case evaluation and discuss investors' options for pursuing claims to recover their losses. On June 25, 2020, analyst Hindenburg Research issued a series of tweets announcing Hindenburg's conclusion that Ideanomics, Inc. "is an egregious & obvious fraud." Hindenburg asserted that it found evidence that Ideanomics "doctored photos in its PR to suggest it owns/operates" a facility, and that this "strikes us as a clear effort by the company to manipulate the photographs in order to drive its stock price up." Also on June 25, 2020, analyst J Capital Research issued a report on Ideanomics entitled "Champion of Promotes." J Capital wrote, in part, that "Ideanomics . . . is a zero. The company changes its name and promotional story so frequently that it's hard to keep up. One thing remains a constant, despite all the press releases, buzzwords and hype: shareholders get wiped out." J Capital continued, in a tweet, that "[w]e called all the 'buyers' named in [Ideanomics'] press releases in June. Not a single one had made a purchase. One of them thanked us for alerting them to 'fake news.'" On this announcement, Ideanomics shares fell approximately 21% in one day, down to $2.44 per share from their June 24, 2020 close of $3.09 per share. Shares continued to plummet on June 26, 2020, closing at just $1.46 per share, a drop of approximately 53%. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims against caused by corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes. Lesley F. Portnoy, Esq. Admitted CA and NY Bar lesley@portnoylaw.com 310-692-8883 www.portnoylaw.com [GN] INVESTORS BANCORP: Dismissal of Counts I & II in Elburn Suit Denied ------------------------------------------------------------------- In the case, ROBERT ELBURN, derivatively on behalf of INVESTORS BANCORP, INC., and individually and on behalf of himself and all other similarly situated stockholders of INVESTORS BANCORP, INC., Plaintiff, v. ROBERT C. ALBANESE, DENNIS M. BONE, DOREEN R. BYRNES, DOMENICK A. CAMA, PETER H. CARLIN, WILLIAM V. COSGROVE, KEVIN CUMMINGS, JAMES J. GARIBALDI, MICHELE N. SIEKERKA, PAUL N. STATHOULOPOULOS and JAMES H. WARD III, Defendants, and INVESTORS BANCORP, INC., a Delaware corporation, Nominal Defendant, C.A. No. 2019-0774-JRS (Del. Ch.), Judge Joseph R. Slights, III of the Court of Chancery of Delaware denied (i) the Defendants' Motion to Dismiss Counts I and II of the Complaint, and (ii) the Plaintiff's Motion for Partial Summary Judgment as to Count III of the Complaint. In 2015, the stockholders of nominal defendant, Investors Bancorp, Inc. ("Investors Bancorp" or the "Company"), voted to approve an equity incentive plan ("EIP") adopted by the Company's board of directors (the "Board"). After the stockholders approved the EIP, the Board awarded itself substantial restricted stock awards ("RSAs") and stock options under its terms (the "2015 Awards"). Kevin Cummings, a Board member and Company CEO, and Domenick Cama, also a Board member and Company President and COO, were the EIP's two largest beneficiaries. Plaintiff, Robert Elburn, brought a derivative action in 2016 alleging the Board breached its fiduciary duties by approving the 2015 Awards. The Defendants moved to dismiss that complaint and the Delaware Chancery Court granted the motion. The Delaware Supreme Court reversed and remanded for further proceedings. Shortly before trial, the parties reached a settlement. Under the Settlement, the EIP awards to Cummings and Cama were rescinded and the awards to the non-executive members of the Board were substantially reduced. In April 2019, two months before the Settlement was presented to the Court for approval, Investors Bancorp filed its Proxy Statement for the Company's 2019 Annual Stockholders Meeting during which, among other business, the stockholders were to vote on the reelection of four current members of the Board. The Proxy informed the stockholders that the Board intended to consider the issuance of new awards to Cummings and Cama under the previously approved EIP. True to its disclosure, a month later, the Company's Compensation Committee recommended, and the Board approved, Replacement Awards for Cummings and Cama that were similar in scope to the awards that were rescinded in the Settlement. The Court approved the Settlement in June 2019, and the Replacement Awards were granted on July 22, 2019. Elburn filed his complaint in the action two months later. The Plaintiff did not make a pre-suit demand on the Board and alleges any such demand would have been futile. He filed his Verified Stockholder Derivative and Class Action Complaint on Sept. 26, 2019. Count I alleges a derivative breach of fiduciary duty claim against each of the Defendants for improperly issuing or accepting the Replacement Awards; Count II alleges a derivative unjust enrichment claim against each of the Defendants; and Count III alleges a direct breach of fiduciary duty claim brought on behalf of a purported class of Investors Bancorp stockholders against each of the Defendants for approving and issuing materially misleading disclosures before the 2019 Annual Meeting. The Plaintiff seeks an order rescinding the Replacement Awards; rescinding the 2019 stockholder vote on the incumbent Board slate; and directing that a new vote on the elections of Albanese, Cama, Garibaldi and Ward be held following amended disclosures regarding the Replacement Awards. The Complaint repeats the themes of excessive compensation Elburn advanced in the 2016 Action. This time, however, Elburn alleges the Defendants breached their fiduciary duties by issuing the Replacement Awards in a quid pro quo arrangement between Cummings and Cama, on the one hand, and the nonemployee Board members on the other. Elburn alleges the arrangement was part of the legerdemain that allowed the Defendants in the 2016 Action to settle the claims against them by appearing to agree to substantial concessions when, in fact, Cummings and Cama gave up very little. The theory, as pled in the Complaint, is that Cummings and Cama agreed to forfeit all of their share of the 2015 Awards in the Settlement so that the nonemployee directors could pocket more of their own awards, but only after the nonemployee directors secretly committed to issue the Replacement Awards after the Settlement was consummated. The Replacement Awards, therefore, were not the product of an exercise of impartial business judgment by the Board, but rather the spoils of a devious plan to nullify the effects of the Settlement and harm the Company's stockholders yet again. The Defendants moved to dismiss Counts I and II of the Complaint on Oct. 10, 2019. The Defendants have moved to dismiss the Complaint under Court of Chancery Rules 12(b)(6) and 23.1 for failure to state viable claims and failure to plead demand futility with particularity, respectively. Since Rule 23.1 sets the higher pleading bar, the Defendants' showcase argument is that the Complaint fails to satisfy the heightened pleading standards embedded in that rule. The Plaintiff moved for partial summary judgment with respect to Count III (the disclosure claim) on Dec. 16, 2019. The matter was submitted for decision on Feb. 7, 2020. When briefing Rule 23.1 motions, parties often dwell on the rather hackneyed question of whether the court should review the demand futility allegations under Aronson or Rales. Not so in the case. Instead, the parties debate the more fundamental question of what is required to plead a fact "with particularity" under Rule 23.1. As elemental as the question might seem, courts have had little occasion to articulate an answer. Indeed, it appears our courts interpret the "particularized facts" rule much as National Football League officials interpret the league's so-called "catch" rule. NFL officials say they know a "catch" when they see a "catch." And it appears the judges simply know "particularized facts" when they see "particularized facts." The Defendants maintain the Court should construe the "with particularity" language in Rule 23.1 just as it construes the same language in Rule 9(b). That is, it should require the Plaintiff to support his demand futility allegations with the so-called "newspaper facts" -- who, what, when, where and how -- just as the Court requires of the Plaintiffs who attempt to plead fraud. The Plaintiff counters that the Court has never required that degree of particularity in the Rule 23.1 context, and for good reason. According to the Plaintiff, unlike a plaintiff alleging fraud, who was likely a witness to (if not the recipient of) the fraudulent overture, the derivative stockholder plaintiff rarely, if ever, is witness to, or has direct knowledge of, the breaches of fiduciary duty he alleges in his complaint. To require the derivative plaintiff to support his pleading of demand futility with "newspaper facts," the Plaintiff says, would be to impose a nigh impossible task. Judge Slights holds that contrary to the Defendants' characterization, nothing in the Court's Rule 9(b), or the cases interpreting the rule, say that newspaper facts must be pled in every fraud case, come what may. Instead, courts have interpreted the "with particularity" standard as requiring only that a plaintiff allege the circumstances of the fraud with detail sufficient to apprise the defendant of the basis for the claim. The Judge sees no reason to depart from, or enhance, that standard when applying the "with particularity" language in Rule 23.1. While newspaper facts often will be necessary to meet this standard in the fraud context, the lack of this "specificity" when pleading either fraud or demand futility is not, de jure, "fatal" to the claim. The Plaintiff alleges that an explicit quid pro quo agreement was reached between Cummings, Cama and the nonemployee directors at some point during Settlement negotiations but prior to the approval of the Replacement Awards. While he has not identified the specific discussions that comprised the agreement, he has described the agreement with detail sufficient to apprise the defendant of the basis for the claim. Thus, the alleged breach of fiduciary duty that flows from the quid pro quo has been pled with sufficient particularity to raise a reasonable doubt that the Board could act impartially in response to a litigation demand. The Defendants' Motion to Dismiss Counts I and II of the Complaint must be denied. The Plaintiff's Motion for Partial Summary Judgment as to Count III of the Complaint must also be denied. The Judge is satisfied the question of materiality relating to the failure to supplement is more nuanced than the Plaintiff makes out. While the Board had completed its "process" and approved the Replacement Awards before the Annual Meeting, the Replacement Awards were still conditioned on the Court's approval of the Settlement, and therefore not final as of the time of the stockholder vote. Moreover, the stockholders had already approved the EIP from which the Replacement Awards were to be drawn. The approval suggests, at least, that the stockholders understood and approved of the EIP, the manner in which awards under the EIP would be made and the purpose of such awards. Thus, while the stockholder approval of the EIP did not leave the Board unaccountable for the awards it chose to make under that plan, as the Supreme Court has made clear, the fact of the stockholder approval makes the materiality inquiry more challenging than the Plaintiff's summary judgment argument allows. Finally, the Judge notes that the cases the Plaintiff cites where the Court has ordered new director elections involved far more serious malfeasance than the disclosure violations the Plaintiff has alleged. For these reasons, it the Judge's view, "desirable to inquire more thoroughly into" the facts relating to the materiality of the failure to supplement. A full-text copy of the District Court's April 21, 2020 Memorandum Opinion is available at https://is.gd/1KgXgq from Leagle.com. David A. Jenkins, Esquire -- daj@skjlaw.com -- Neal C. Belgam Esquire -- ncb@skjlaw.com -- and Jennifer M. Rutter Esquire,of Smith Katzenstein & Jenkins LLP, Wilmington, Delaware and Steven J. Purcell, Esquire,Douglas E. Julie, Esquire,Robert H. Lefkowitz Esquire,and Kaitlyn T. Devenyns Esquire,of Purcell Julie & Lefkowitz LLP, New York, New York, Attorneys for Plaintiff Robert Elburn. Kenneth J. Nachbar, Esquire -- knachbar@mnat.com -- Megan Ward Cascio, Esquire -- mcascio@mnat.com -- Zi-Xiang Shen Esquire,and Miranda N. Gilbert Esquire,of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Attorneys for Defendants Robert C. Albanese, Dennis M. Bone, Doreen R. Byrnes, Domenick A. Cama, Peter H. Carlin, William V. Cosgrove, Kevin Cummings, James J. Garibaldi, Michele N. Siekerka, Paul N. Stathoulopoulos and James H. Ward III. Susan M. Hannigan, -- hannigan@rlf.com -- Esquire of Richards, Layton & Finger, P.A., Wilmington, Delaware, Attorney for Nominal Defendant Investors Bancorp, Inc. J2 GLOBAL: Faces Garcia Suit Over Inflated Share Price ------------------------------------------------------- JEFFREY GARCIA, Individually and on behalf of all others similarly situated, Plaintiff, v. J2 GLOBAL, INC., VIVEK SHAH, NEHEMIA ZUCKER, and R. SCOTT TURICCHI, Defendants, Case No. 2:20-cv-06096 (C.D. Cal., July 8, 2020) is a class action brought by the Plaintiff on behalf of persons or entities who purchased or otherwise acquired publicly traded J2 Global securities between October 5, 2015 and June 29, 2020, inclusive, seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. According to the complaint, Defendants, individually and in concert, directly or indirectly, disseminated or approved the false statements from 2015-2020 they filed with Securities and Exchange Commission, which they knew or deliberately disregarded were misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. Defendants violated Section 10(b) of the 1934 Act and Rule 10b-5 in that they: 1) employed devices, schemes and artifices to defraud; 2) made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or 3) engaged in acts, practices and a course of business that operated as a fraud or deceit upon plaintiff and others similarly situated in connection with their purchases of J2 Global securities during the Class Period. As a result of the foregoing, the market price of J2 Global securities was artificially inflated during the Class Period. In ignorance of the falsity of Defendants' statements, Plaintiff and the other members of the Class relied on the statements described above and/or the integrity of the market price of J2 Global securities during the Class Period in purchasing J2 Global securities at prices that were artificially inflated as a result of Defendants’ false and misleading statements. Throughout the Class Period, the Individual Defendants exercised their power and authority to cause J2 Global to engage in the wrongful acts complained of herein. The Individual Defendants therefore, were "controlling persons" of J2 Global within the meaning of Section 20(a) of the Exchange Act. In this capacity, they participated in the unlawful conduct alleged which artificially inflated the market price of J2 Global securities. J2 Global Inc. is a California-headquartered company that purports to provide Internet services worldwide. The Company operates through three segments: Fax and Martech; Voice, Backup, Security, and Consumer Privacy and Protection; and Digital Media.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com JANI-KING INT'L: Mujo Appeals Judgment in Labor Suit to 2nd Cir. ---------------------------------------------------------------- Plaintiffs Simon Mujo and Indrit Muharremi filed an appeal from the District Court's Order and Judgment in the lawsuit titled Mujo v. Jani-King International, Inc., Case No. 16-cv-1990, in the U.S. District Court for the District of Connecticut (New Haven). As previously reported in the Class Action Reporter, the lawsuit alleges that Jani-King has taken and continues to take unlawful deductions from the compensation paid to the Plaintiffs in violation of Section 31-71 e of the Connecticut Minimum Wage Act. The Hon. Judge Victor A. Bolden entered an order on Jan. 9, 2019, granting the Plaintiffs' motion with respect to class certification of "all individuals who have performed cleaning work for Jani-King in Connecticut since December 5, 2010." The Plaintiffs argue that class action is superior to individual cases because common practices affect the class members and some individuals may only have a small recovery that limits their ability to vindicate their rights on an individual basis; and a class action would eliminate the risk that the common question of law would be decided differently in each lawsuit. The Defendants respond by arguing that resolution of the class issues is not susceptible to common evidence nor do the facts lend themselves to class-wide proof. Rather, according to the Defendants, individualized factual considerations are better suited to satisfy any claims. The District Court disagrees with the Defendants, holding that the class action is the superior method for adjudication of the controversy, because (1) class members may fear reprisal and would not be inclined to pursue individual claims; (2) the cost of individual litigation is prohibitive, and (3) a class action would eliminate the risk that the question of law common to the class will be decided differently in each lawsuit. Current class members may also still work for Jani-King, raising the possibility of retaliation for the filing of individual claims. Moreover, the individual claims are too small to bring absent the class action; they are the small claims that are "the very core of the class action mechanism." Finally, a class would eliminate the risk that individual lawsuits would have different outcomes for common questions of law and fact that predominate the class members. The District Court, therefore, holds that the Plaintiffs meet rule 23(b)(3)'s superiority. The appellate case is captioned as Mujo v. Jani-King International, Inc., Case No. 20-111, in the United States Court of Appeals for the Second Circuit. Plaintiffs-Appellants Simon Mujo, on behalf of themselves and all others similarly situated; and Indrit Muharremi, on behalf of themselves and all others similarly situated, are represented by: Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street Boston, MA 02116 Telephone: (617) 994-5800 E-mail: sliss@llrlaw.com Defendants-Appellees Jani-King International, Inc., Jani-King, Inc., and Jani-King, Inc., are represented by: Peter J. Murphy, Esq. SHIPMAN & GOODWIN LLP 1 Constitution Plaza Hartford, CT 06103 Telephone: (860) 251-5950 E-mail: pjmurphy@goodwin.com - and - Aaron Daniel Van Oort, Esq. FAEGRE BAKER DANIELS LLP 2200 Wells Fargo Center 90 South 7th Street Minneapolis, MN 55402 Telephone: (612) 766-8138 E-mail: aaron.vanoort@faegredrinker.com JAY'S LANDSCAPING: McCammon Disallowed as Party in Fitchhorn Suit ----------------------------------------------------------------- In the case, JOSHUA FITCHHORN, et al., Plaintiffs, v. JAY'S LANDSCAPING AND CUSTOM LAWN SERVICE, INC., et al., Defendants, Civil Act. No. 1:19-cv-92-TFM-N (S.D. Ala.), Judge Terry F. Moorer of the U.S. District Court for the Southern District of Alabama, Southern Division, granted the Defendants' request to disallow the addition of Rickey McCammon as a party Plaintiff to the action. On April 17, 2020, the Plaintiff filed a document on behalf of Rickey McCammon entitled "Notice of Filing Consent to Join Collective Action," attached to which is a "FLSA Consent Form" that is signed by Mr. McCammon and dated Jan. 29, 2019. Subsequently, the Defendants filed their Motion to Disallow Joinder of New Plaintiff or Alternative Motion for Amendment of the Scheduling Order. The Defendants request the Court to strike or otherwise disallow the addition of Rickey McCammon as a party Plaintiff to the action or, in the alternative, to substantially amend the scheduling order to provide sufficient time to address Mr. McCammon's claims. Judge Moorer finds that Mr. McCammon's notice does not comply with Fed. R. Civ. P. 24 because it is neither styled as a motion nor states the grounds for his intervention. Additionally, the Plaintiff failed to file a motion to conditionally certify class or facilitate class notice to authorize a Fair Labor Standards Act ("FLSA") collective action pursuant to 29 U.S.C. Section 216(b), which would be the only other vehicle to add McCammon as a Plaintiff. The Eleventh Circuit has established a two-tiered procedure for determining whether to certify an opt-in class pursuant to 29 U.S.C. Section 216(b). The Court previously noted in its Preliminary Scheduling Order for FLSA Cases that the deadline for amendment of pleadings and joinder of parties will also apply to motions for conditional certification of the collective action. The Rule 16(b) Scheduling Order provided a deadline of Feb. 14, 2020, for amending pleadings and joinder of parties. No explanation as to the late filing is provided nor is it a proper motion. Finally, there is no explanation as to the delay in time from Jan. 29, 2019, the date the "FLSA Consent Form" was signed, to date, April 20, 2020 -- 15 months later -- especially as the complaint was filed on Feb. 26, 2019. As such, the "Notice of Filing Consent to Join Collective action" is inadequate to add Mr. McCammon to the FLSA collective action. Therefore, the Judge declines to add him as a party based upon the current filing. As a result, Judge Moorer granted the Defendants' motion to the extent the Court disallows the addition of Rickey McCammon as a Plaintiff based upon the current notice. The Judge otherwise denied as moot the Defendants' motion. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/MWBLf7 from Leagle.com. KAPPO MASA: Mendez et al. Seek Unpaid Wages, Invalid Tip Credit --------------------------------------------------------------- The case, IVAN HERRERA MENDEZ and VALENTIN VIVAR, individually and on behalf of all others similarly situated v. 976 MADISON RESTAURANT LLC d/b/a KAPPO MASA; TAKAYAMA MANAGEMENT LLC d/b/a BAR MASA; TAKAYAMA, INC. d/b/a MASA; ARTBLOCK LLC d/b/a KAPPO MASA; MASAYOSHI TAKAYAMA; and LAWRENCE GAGOSIAN, Defendants, Case No. 1:20-cv-05273 (S.D.N.Y., July 9, 2020), arises from the Defendants' failure and refusal to pay the Plaintiffs and all others similarly situated restaurant workers the proper minimum wage and the proper overtime premium at the rate of one and one half times the regular rate for work in excess of 40 hours per workweek due to invalid tip credit allowance in violations of the Fair Labor Standards Act and the New York Labor Law. Moreover, the Defendants failed to provide proper wage statements and wage notices to the Plaintiffs and Class members. 976 Madison Restaurant LLC, d/b/a Kappo Masa, is a restaurant operator located at 980 Madison Avenue, New York, New York. Takayama Management LLC, d/b/a Bar Masa, is a restaurant operator located at Suite 401, 10 Columbus Circle, New York, New York. Takayama, Inc., d/b/a Masa, is a restaurant operator located at 301 W 57th Street, Suite 15F, New York, New York. Artblock LLC, d/b/a Kappo Masa, is a restaurant operator located at 28 Liberty Street, New York, New York. [BN] The Plaintiffs are represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, Eighth Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 KARIZMA LOUNGE: Conteras Sues Over Unpaid Wages & Discrimination ---------------------------------------------------------------- NATHALIE JOHANA CONTERAS, individually and on behalf of others similarly situated, Plaintiff v. KARIZMA LOUNGE CORP. and MOHAMMED BASHIR, Defendants, Case No. 1:20-cv-05167 (S.D.N.Y., July 6, 2020) is a collective and class action complaint brought against Defendants pursuant to the New York Labor Law and the New York Commissioner of Labor's Wage Order. Plaintiff was employed by Defendants as a waitress from July 21, 2016 until July 28, 2018. According to the complaint, Plaintiff regularly worked more than 40 hours a week throughout her employment with Defendants, and his main source of compensation came from tips because Defendants did not pay Plaintiff any extra monies for her overtime hours. The complaint asserts that Defendant: -- failed to compensate Plaintiff for all hours worked at the statutory minimum wage; -- failed to pay Plaintiff overtime compensation for his work in excess of 40 hours per week; -- misappropriated Plaintiff's tips; -- failed to pay Plaintiff spread-of-hours payments; and -- failed to provide Plaintiff with a wage notice and pay stubs. Moreover, Defendants constantly belittle and bully female employees if they made a mistake at work. Mohammed Bashir owns Karizma Lounge Corp. and has the authority to hire and fire employees, supervise their work schedules, set their rates of pay, and maintain payroll records. Karizma Lounge Corp. is a hookah-themed lounge. [BN] The Plaintiff is represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Tel: (212) 571-0700 Fax: (212) 505-2001 Email: https://www.fishertaubenfeld.com KICHO CORP: Class in Chen Class Suit Conditionally Certified ------------------------------------------------------------ In the case, ZHONGLE CHEN, on behalf of himself and on behalf of others similarly situated, Plaintiff, v. KICHO CORPORATION d/b/a Kicho Japanese Fusion, LIAN HUA CORP. d/b/a Kicho Japanese Fusion, and JIN CHUN CHEN, Defendants, Case No. 18 CV 7413 (PMH) (LMS) (S.D. N.Y.), Magistrate Judge Lisa Margaret Smith of the U.S. District Court for the Southern District of New York granted in part and denied in part the Plaintiff's motion for conditional certification of a collective action. Plaintiff Chen, on behalf of himself and others similarly situated, commenced the action alleging violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") against Defendants Kicho Corp., doing business as Kicho Japanese Fusion, Lian Hua Corp., doing business as Kicho Japanese Fusion, and Jin Chun Chen. As to the FLSA, the Plaintiff alleges that he and all others similarly situated were not paid overtime wages for any hours worked over 40 hours in a workweek, and therefore they are entitled to recover from the Defendants unpaid overtime wages, liquidated damages, prejudment and post-judgment interest, and attorneys' fees and costs. Defendants Kicho Corp. and Lian Corp. are separate corporations which each do business under the name Kicho Japanese Fusion, a restaurant located in Bedford Hills, New York. The Plaintiff alleges that Defendant Kicho Corp. holds the liquor license for Kicho Japanese Fusion and Defendant Lian Corp. holds the license to operate a food service establishment for Kicho Japanese Fusion and the bank account used to pay Kicho Japanese Fusion's employees. He alleges that there was never any written sale of assets, sale of stock, sale of privilege to operate Kicho Japanese Fusion, assignment of lease, sublease, or other written agreement between Defendant Kicho Corp. and Defendant Lian Corp. nor was there any payment of money from Defendant Lian Corp. to Defendant Kicho Corp. Defenant Jin Chun is the sole owner of Defendants Kicho Corp. and Lian Corp. and the manager of Kicho Japanese Fusion. The Plaintiff alleges that Defendants Kicho Corp. and Lian Corp. are alter egos of Defendant Jin Chun. On April 15, 2018, the Plaintiff was hired as a sushi chef at Kicho Japanese Fusion. In addition to his duties as a sushi chef, the Plaintiff served as a driver shuttling fellow restaurant employees back and forth from Flushing, New York, to Bedford Hills, New York. He asserts that all the Defendants' employees were paid in cash. In his Second Amended Complaint, the Plaintiff alleges that he was not paid overtime pay for his overtime hours, was not informed of his hourly rate, was not informed of deductions from his wages or credits toward the minimum wage, was not given a wage statement reflecting the necessary information and written in his native Chinese, was not paid at least the New York minimum wage rate, and was not paid the New York spread-of-hours premium for shifts lasting over 10 hours. The Plaintiff alleges that the Defendants willfully and intentionally committed these FLSA and NYLL violations. He raises seven state law claims under the NYLL on behalf of himself (and a Rule 23 class which has not been pursued) and one FLSA claim for the Defendants' failure to pay overtime wages on behalf of the FLSA Collective. The Plaintiff now moves the Court to grant conditional certification of a collective action on behalf of all current and former non-exempt and non-managerial employees employed by the Defendants at any time from Aug. 15, 2015, to the present, and to approve the proposed notice of the action to be provided to those current and former employees. Magistrate Judge Smith granted in part and denied in part the Plaintiff's motion for conditional collective action certification. The Judge granted conditional collective action certification for all non-managerial, non-exempt employees, who worked as cook or wait staff at Kicho Japanese Fusion on or after Aug. 15, 2015, finding that the Plaintiff has made the factual showing required to infer that these employees were subject to a common policy or plan that violated the law. The Judge directed the Plaintiff to revise the notice and consent form, consistent with the Decision and Order, to confer with the Defendants in order to agree on a final version of each form, and to submit final versions (as well as any translations) for the Court's approval no later than 14 days after the entry of the order. The Defendants are directed to provide the Plaintiff's counsel with the names, addresses, telephone numbers, social media handles, and dates of employment for all potential plaintiffs by the same date. The Judge directed the Defendants to post the notice and consent forms, in English, Chinese, and Spanish, in conspicuous locations at Kicho Japanese Fusion, located at 352 Bedford Rd., Bedford Hills, NY 10507. Such notice is to remain posted throughout the opt-in period. The Plaintiff must file the returned consent forms under seal within five days of receipt. The Court will not toll the statute of limitations at this time. A full-text copy of the District Court's April 17, 2020 Decision & Order is available at https://is.gd/Cm4JLY from Leagle.com. KING COUNTY, WA: 9th Cir. Appeal Filed in Moore Civil Rights Suit ----------------------------------------------------------------- Plaintiffs Eva Moore and Brooke Shaw filed an appeal from a court ruling issued in the lawsuit titled Eva Moore, et al. v. Mitzi Johanknecht, et al., Case No. 2:16-cv-01123-TSZ, in the U.S. District Court for the Western District of Washington, Seattle. Mitzi Johanknecht is sued in her official capacity as King County Sheriff. As previously reported in the Class Action Reporter, the case is a class action challenging the constitutionality of a Washington statute that allows tenants to be evicted from their homes without a court hearing. The Plaintiffs seek declaratory and injunctive relief against the Sheriff of King County, whose office enforces the challenged statute by executing the eviction orders. Because the Plaintiffs' action challenges the constitutionality of a state statute, the District Court invited the State of Washington to intervene to defend the statute. Before the State entered an appearance, though, the District Court granted the Sheriff's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The appellate case is captioned as Eva Moore, et al. v. Mitzi Johanknecht, et al., Case No. 20-35028, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Appellants EVA MOORE and BROOKE SHAW, individually and on behalf of all others similarly situated, are represented by: Elizabeth A. Adams, Esq. Toby J. Marshall, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 E-mail: eadams@terrellmarshall.com tmarshall@tmdlegal.com - and - Rory Benjamin O'Sullivan, Esq. UNIVERSITY OF WASHINGTON HUB 306, Box 352236 Seattle, WA 98195 Telephone: (206) 356-9852 E-mail: roryo@kcba.org Defendant-Appellee MITZI JOHANKNECHT, in her official capacity as King County Sheriff, is represented by: David J. Hackett, Esq. KING COUNTY PROSECUTING ATTORNEY'S OFFICE 500 Fourth Avenue Seattle, WA 98104 Telephone: (206) 477-9483 E-mail: david.hackett@kingcounty.gov KINGOLD JEWELRY: Rosen Law Firm Files Securities Class Action ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on June 30 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Kingold Jewelry, Inc. (NASDAQ: KGJI) between March 15, 2018 and June 28, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Kingold investors under the federal securities laws. To join the Kingold class action, go to http://www.rosenlegal.com/cases-register-1891.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Kingold used fake gold as collateral to fraudulently secure loans; (2) consequently, the Company would face creditor lawsuits and be delisted from the Shanghai Gold Exchange; and (3) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than August 31, 2020. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1891.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contacts: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] KINGOLD JEWELRY: Tysor Balks at 24% Decline in Share Price ---------------------------------------------------------- JOSEPH OREN TYSOR, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. KINGOLD JEWELRY, INC., ZHIHONG JIA, and BIN LIU, Defendants, Case No. 2:20-cv-03050-JMA-AYS (E.D.N.Y., July 8, 2020) is a class action on behalf of persons or entities who purchased or otherwise acquired Kingold securities between March 15, 2018, and June 28, 2020, inclusive, seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. According to the complaint, Defendants disseminate statements during the Class Period that were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Kingold used fake gold as collateral to fraudulently secure loans; (ii) consequently, the Company would face creditor lawsuits and be delisted from the Shanghai Gold Exchange; and (iii) as a result, Defendants' statements about its business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. Additionally, on June 29, 2020, before the market opened, Caixin Global published an article entitled "Cover Story: The Mystery of $2 Billion of Loans Backed by Fake Gold." The article stated, among other things, that Kingold had used gold bars that were actually gilded copper as collateral in loans and was now facing lawsuits as a result, and that Kingold had been delisted from the Shanhai Gold Exchange. On this news, shares of Kingold stock fell $0.27 per share, or over 24%, to close at $0.85 per share on June 29, 2020. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Plaintiff acquired Kingold securities at artificially inflated prices during the Class Period and was damaged upon the revelation of the alleged corrective disclosures. Kingold Jewelry, Inc. purports to design, manufacture, and sell 24-karat gold jewelry and Chinese ornaments in the People's Republic of China.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile: (212) 697-7296 E-mail: peretz@bgandg.com KIRKLAND LAKE: Rosen Law Firm Reminds of August 28 Deadline ----------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on June 30 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Kirkland Lake Gold Ltd. (NYSE: KL) between January 8, 2018 and November 25, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Kirkland Lake Gold investors under the federal securities laws. To join the Kirkland Lake Gold class action, go to http://www.rosenlegal.com/cases-register-1892.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Kirkland lacked adequate internal controls over financial reporting, especially as it relates to its projections of risks, reserve grade, and all-in sustaining costs; (2) as a result of the known, but undisclosed, impending acquisition of Detour Gold Corporation, the Company's projections relating to its risks, reserve grade, and all-in sustaining costs were false and misleading; (3) the Company's financial statements and projections were not fairly presented in conformity with International Financial Reporting Standards; and (4) based on the foregoing, defendants lacked a reasonable basis for their positive statements about the Company's business, operations, and prospects and/or lacked a reasonable basis and omitted material facts. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than August 28, 2020. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1892.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. Contacts Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] KPMG: May Face Class Action Claims Over Miller Energy Audit Failure ------------------------------------------------------------------- Holly Barker, writing for Bloomberg Law, reports that KPMG will likely have to defend class allegations in a federal Tennessee court that its audit failures helped Miller Energy Resources Inc. overstate the value of certain oil and gas assets on financial statements in violation of federal securities laws. Magistrate Judge Debra C. Poplin recommended on June 29 that the U.S. District Court for the Eastern District of Tennessee grant would-be class plaintiffs' motion for class certification and appointment of representatives and counsel. The lawsuit alleges, among other things, that KPMG issued audit reports containing unqualified opinions on Miller Energy's financial statements and disregarded significant gaps in internal controls. [GN] L'OREAL USA: Amended Summary Judgment in Carter Suit Granted ------------------------------------------------------------ In the case, ANGELA CARTER, ELLA VALRIE, and DORA BLACKMON, individually and on behalf of others similarly situated, Plaintiffs, v. L'OREAL USA, INC., and SOFT SHEEN-CARSON, LLC, Defendants, Civil Act. No. 2:16-cv-508-TFM-B (S.D. Ala.), Judge Terry F. Moorer of the U.S. District Court for the Southern District of Alabama, Northern Division, (1) granted in part and denied in part the Plaintiffs' Motion to Strike the Nov. 29, 2018 Declaration of Barbara Mitchell; (2) granted the Defendants' Amended Motion for Summary Judgment; and (3) denied the Plaintiffs' Amended Motion for Class Certification and denied as moot their Amended Motion to Appoint Class Counsel. Carter filed the action on Sept. 30, 2016, on behalf of herself and similarly situated individuals, raising various claims against the Defendants. Cases brought by Blackmon and Valrie were eventually were consolidated with Carter's. In the second amended complaint filed on Jan. 9, 2017, the Plaintiffs assert various claims against Defendants in relation to the Amla Legend Rejuvenating Ritual Relaxer Kit, a hair-relaxer kit marketed primarily to African American women and sold nationally through various retailers under the Soft Sheen-Carson Optimum Salon Haircare brand. The relaxer kit has five components-scalp protector, relaxer base, neutralizing shampoo, conditioner, and oil moisturizer -- which consumers are instructed to apply in order and in a single session to achieve the desired result. The Plaintiffs assert that the product is promoted as an easy no-mix, no-lye relaxer kit that ensures an easier relaxing process for unified results and superior respect for hair fiber integrity, and the line of Amla Legend products, of which the relaxer kit is a part, and the amla oil for which they are named, are variously promoted as a secret ritual for hair rejuvenation with intense moisture that will rejuvenate every strand, leaving you with thicker-looking, healthier hair, and with unique properties that prevent breakage, restore shine, manageability and smoothness. The Plaintiffs allege that, contrary to those assertions, the relaxer kit causes significant hair loss and skin and scalp irritation, including burns and blistering, due to an inherent design or manufacturing defect. The Plaintiffs aver that, despite the "no-lye" representations on the relaxer-kit packaging, the relaxer kit actually contained sodium hydroxide and the instructions for applying the product, and for pre-testing the product on a strand of hair are inadequate. Plaintiffs assert that the product contains caustic and/or dangerous ingredients that can lead to the injuries stated and is unfit for its intended use. Further, the Plaintiffs assert the Defendants failed to disclose material information to consumers regarding the dangers of the product and, instead, made material misrepresentations as to the characteristics, ingredients, safety, and value of the product. Finally, the Plaintiffs state that they would not have purchased the relaxer kit if the Defendants had adequately disclosed the dangers associated with it. Accordingly, in their operative Second Amended Complaint, the Plaintiffs asserted six claims against the Defendants: (1) violation of the Magnuson-Moss Warranty Act (Count II); (2) breach of express warranty (Count III); (3) breach of implied warranty (Count IV); (4) violation of the Alabama Deceptive Trade Practices Act ("ADTPA") (Count V); (5) fraud (Count VI); and (6) negligent design and failure to warn (Count VII). The Plaintiffs seek damages and equitable remedies on behalf of themselves and the putative class of consumers who bought the relaxer kit. The Plaintiffs filed a motion for class certification and a motion to appoint class counsel on Dec. 7, 2018. That same day, the Defendants filed a motion for summary judgment seeking dismissal or partial dismissal of all the claims asserted by the Plaintiffs as well as all claims for injunctive and declaratory relief and punitive damages. Beginning on Dec. 7, 2018, the parties filed a succession of motions seeking to exclude expert witness reports and testimony, and other motions related to expert witnesses. The parties had the opportunity for responses and replies, a hearing was held, and the Court ruled. Following the Court's omnibus order excluding portions of expert reports and testimony, the parties were instructed to file amended motions for class certification, appointment of the class counsel, and summary judgment, making any necessary changes in light of the Court's Order. Accordingly, the Plaintiffs filed the instant amended motion for class certification and amended motion to appoint class counsel, which superseded their prior motions for class certification and appointment of class counsel. The Defendants responded to the class certification motion on Sept. 20, 2019, and the Plaintiffs replied on Sept. 27, 2019. On Sept. 3, 2019, the Defendants filed an amended motion for summary judgment that incorporated by reference the prior motion for summary judgment. Those combined motions for summary judgment were granted as to Count II, violation of the Magnuson-Moss Warranty Act; Count III, breach of express warranty; Count IV, breach of implied warranty; and Count V, violation of the ADTPA. Doc. 223. Defendants were instructed to re-file their motion for summary judgment on the remaining claims -- Count VI, for fraud, and Count VII, for negligent design and failure to warn -- in a single, comprehensive document. Accordingly, the Defendants filed the instant amended motion for summary judgment on Oct. 21, 2019. The Plaintiffs responded on Nov. 13, 2019, and the Defendants replied on Nov. 20, 2019. The Plaintiffs filed the pending motion to strike in conjunction with their response. The Defendants responded on Nov. 20, 2019, and the Plaintiffs replied on Nov. 27, 2019. In their motion, the Plaintiffs ask the Court to strike from the record (i) a Nov. 29, 2018 declaration by Barbara Mitchell, manager of L'Oreal's Texture & Styling Laboratory, and (ii) 67 pages of manufacturing records filed in conjunction with Mitchell's declaration. The Plaintiffs argue that Mitchell's declaration should be struck because it was filed more than a month after discovery closed, and thus, they were unable to cross-examine Mitchell regarding its contents. As to the manufacturing records, they argue they should be excluded as violative of Fed. R. Civ. P. 34(a)(1)(A) and 34(b)(2)(E) because they were not produced in a "reasonably usable form." Judge Moorer holds that the parties had ample time for discovery and, again, the Plaintiffs had an opportunity to depose Mitchell during the discovery period and declined to do so. Moreover, there is no indication in the record that they sought leave to depose Mitchell after becoming aware of the declaration in 2018, or that the Plaintiffs took issue with the declaration at all until their response to the Defendants' amended motion for summary judgment was filed many months later on Sept. 9, 2019. To the extent the Plaintiffs argue that Mitchell's statement constitutes a change in her opinion from earlier testimony, it is not an opinion. It merely provides additional information. Accordingly, the motion to strike Mitchell's declaration is due to be denied. Next, the Court finds that regardless of any other deficiencies alleged by the Plaintiffs, the Defendants have submitted manufacturing records in French with no translation. He doesn't speak French. The records are meaningless as support for the Defendants' motion. Although Mitchell references the documents in her declaration, she does not purport to translate the documents directly. Thus, the documents will not be considered by the Court. The Court notes that, to the extent the documents are included to support the Defendants' assertion that no sodium hydroxide was included in the relaxer kits at issue, they are also unnecessary, as there is uncontroverted evidentiary support for the assertion elsewhere in the record. Thus, the motion to strike is granted as to the manufacturing records. Turning to the Defendants' motion for summary judgment, the Defendants argue that summary judgment is warranted because the Plaintiffs have abandoned the remaining fraud and negligence claims from their operative complaint and, instead, have alleged unpled claims that Defendants violated the Food, Drug, and Cosmetic Act ("FDCA"), the Fair Packaging and Labeling Act ("FPLA"), or related regulations of the U.S. Food and Drug Administration ("FDA"). To the extent the Defendants argue that the Plaintiffs have abandoned their remaining claims in favor of asserting claims under the FDCA or FPLA, the Court disagrees. While making no findings at this point on the merits of the Plaintiffs' argument, the Court determines that the Plaintiffs' reliance on these federal statutes in their opposition to summary judgment is not an attempt to abandon their remaining claims in favor of unpled causes of action, but rather, an attempt to bolster their claims by invoking federal standards. The Plaintiffs allege in the operative complaint that the Defendants made material representations and omissions regarding the relaxer kit in the product packaging and the marketing and advertising materials promoting the product. The Court holds that the Plaintiffs have presented no evidence to demonstrate that Blackmon and Valrie relied on any of the advertised benefits at issue. Taking the facts in the light most beneficial to the Plaintiffs, there is evidence that Carter relied on representations about amla oil and, by extension, its benefits. However, even assuming the Plaintiffs have demonstrated false claims that Carter relied on in making her purchase, the Plaintiffs do not specify how these particular claims, if false, proximately caused the damages Carter alleges. Nowhere in the record do they state a link between the touted benefits of amla oil and injuries such as scalp irritation, burns, or hair loss. Accordingly, the Plaintiffs' fraud claims fail as a matter of law. In their operative complaint, the Plaintiffs allege that the product is defective because, contrary to the representations in marketing materials and on the packaging, it contains "Lye and other ingredients that are caustic and/or allergens" that can cause scalp burning, irritation, and hair loss. The Court holds that although Plaintiff Carter testified that she read all the instructions prior to use, she also testified to misusing the product in multiple respects. Nevertheless, the Plaintiffs have not provided evidence to support their argument that the Defendants failed to warn them of the potential for the injuries they sustained, while the Defendants have provided substantial evidence that consumers were warned of the product's risks and the potential for the precise injuries alleged. Thus, the Plaintiffs cannot demonstrate at least one necessary element for negligent failure to warn. Accordingly, their negligent design and failure to warn claims are due to be dismissed. The Plaintiffs' motion for class certification appears moot: the remaining claims are due to be dismissed on the merits, leaving no claims for a putative class to pursue. Indeed, Alabama district courts have denied motions for class certification on that basis. The claim brought in the operative complaint is negligent design and failure to warn. Although Alabama recognizes such a claim both as a common law claim and a statutory claim brought under the AEMLD, other states take different approaches. The Plaintiffs have not addressed these differences or how they could be accommodated. Thus, the Plaintiff's motion for class certification is due to be denied. Based on the foregoing, Judge Moorer (i) granted in part and denied in part the Plaintiffs' motion to strike. It is granted as to the manufacturing records, which are stricken. It is denied as to Barbara Mitchell's declaration. The Judge granted the Defendants' amended motion for summary judgment. The Judge denied the Plaintiffs' motion for class certification. The Judge denied as moot the Plaintiffs' motion for appointment of class counsel. A full-text copy of the District Court's April 21, 2020 Memorandum Opinion & Order is available at https://is.gd/2J6ciG from Leagle.com. LAWRENCE KIA: Humphrey Farrington Files Consumer Class Action ------------------------------------------------------------- Andy Alcock, writing for KSHB, reports that a metro law firm has filed a class action lawsuit against Lawrence Kia. The suit, filed by the Independence firm Humphrey, Farrington & McClain, comes after multiple 41 Action News I-Team reports of customer complaints. The lawsuit is primarily based on violation claims of Kansas consumer protection laws. Specifically, those customers complained their monthly incomes were inflated on their loan applications for their vehicles. The lead, and so far only named, plaintiff in the case is former University of Kansas football player Codey Cole. Cole first spoke to the I-Team in March about his experience buying a car at Lawrence Kia. "They gave me a lot of papers to sign. They rushed through it. They didn't try to explain it to me, explain what was going on," Cole said. Other Kia customers who bought vehicles have told the I-Team of similar experiences of signing documents they simply didn't catch were falsified. "We felt it was incumbent upon us to get filed so that people would know there was someplace to go to get some relief," said Ken McClain, a partner with the firm filing the lawsuit. McClain said he's heard from about a dozen Lawrence Kia customers so far. He also said the complaints his firm has dated back to 2015 and include customers who've had their vehicles repossessed. McClain said his firm is reviewing each individual case. In particular, one potential issue is some customers may have signed arbitration agreements as part of the documents presented to them. Those agreements could be a stumbling block to filing suit. "It's a tremendous mess caused by this over-aggressive sales technique that was being employed by Kia. It's dishonest and it ought to be stopped. It was designed to pick the pocket of all these individuals of monies they should not have expended," McClain said. Although he's not specifically named, Herb Vance's case is used as an example in the complaint filed in Douglas County District Court on June 29. The retiree told the I-Team in March his monthly income was $2,000, but his loan application submitted by Lawrence Kia to his lender said Vance's monthly income was $9,961. Vance's lender is Santander Consumer, the nation's largest sub-prime auto financing company. In May, Kansas Attorney General Derek Schmidt announced a settlement requiring Santander to pay $2.9 million to Kansas consumers. The settlement came after a five-year investigation by 34 state attorneys general. And now with Vance, a Santander loan has come under question again. "We're investigating very aggressively the role that the banks play in regards to this scheme," McClain said. The I-Team reached out to Santander representatives through multiple emails and phone calls over the last couple of weeks without getting a comment. Following I-Team reports, Wells Fargo suspended taking loan applications from Lawrence Kia and is investigating its loans with the dealership. Additionally, the Kansas Attorney General, Bank Commissioner and the Douglas County District Attorney's offices are all investigating Lawrence Kia. The lawsuit names J.J.R., INC. doing business as Lawrence Kia as the lead defendant. The owner-management team of James "Pat" Morrissy, Chintaka Rajapaksha and Kevin Morrissy are all also named individually as defendants. McClain said the men were named individually because sometimes owners take money out of "thinly capitalized" corporations in order to hide it. The I-Team reached out to Lawrence Kia's attorneys for comment on the lawsuit. As of June 29, there'd been no response. [GN] LEADERS IN COMMUNITY: Edwards Appeals RICO Suit Order to 9th Cir. ----------------------------------------------------------------- Plaintiffs William Edwards, Robert Jackson, James Brooks, and Kyser Wilson filed an appeal from a court ruling in their lawsuit entitled William Edwards, et al. v. Leaders in Community Alternatives, Inc., et al., Case No. 3:18-cv-04609-WHA, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, the District Court issued an Order denying the Plaintiffs' Motion for Class Certification in the case. The putative class action is brought over claims under the Racketeer Influenced and Corrupt Organizations Act. The Plaintiffs have moved for class certification. The County of Alameda contracted with Defendant Leaders in Community Alternatives, Inc., to provide an electronic-monitoring program, including GPS and alcohol monitoring, for criminal defendants on pre-trial release or home detention. The Plaintiffs allege that they all paid LCA amounts they could not afford because LCA threatened to violate them so that they would return to jail if they failed to pay LCA's fee. Based on this, the Plaintiffs assert a RICO claim based on predicate acts of extortion under state and federal law. They sought to certify the following class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3): All individuals who have been or will be put on LCA's Electronic Monitoring program by the Alameda County Court system from July 31, 2014, until this litigation is complete, who were threatened with jail by LCA or any of its employees, agents, or representatives. The appellate case is captioned as William Edwards, et al. v. Leaders in Community Alternatives, Inc., et al., Case No. 20-15070, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Appellants WILLIAM EDWARDS, ROBERT JACKSON, JAMES BROOKS, and KYSER WILSON, on behalf of themselves and others similarly situated, are represented by: Marissa Hatton, Esq. Phil Telfeyan, Esq. EQUAL JUSTICE UNDER LAW 400 7th Street NW, Suite 602 Washington, DC 20004 Telephone: (202) 838-6709 - and - Kevin Mitchell, Esq. 885 Bryant St. San Francisco, CA 94103 Telephone: (415) 581-0885 Defendant-Appellee LEADERS IN COMMUNITY ALTERNATIVES, INC., is represented by: Susan Eileen Coleman, Esq. BURKE, WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071 E-mail: scoleman@bwslaw.com LEAPFORWARD FINANCIAL: Landy Hits Illegal Telemarketing Calls ------------------------------------------------------------- Brennan Landy, individually and on behalf of all others similarly situated, Plaintiff, v. Leapforward Financial, Bat, Inc., The Litigation Practice Group PC, Daniel S. March, Brian Reale and Does 1 through 10, Defendant, Case No. 20-cv-00962 (C.D. Cal., May 26, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Leapforward is a debt consulting company. Bat, Inc. is a debt relief service while The Litigation Practice Group is a debt legal service company. They called Landy's cellular telephone number in an attempt to solicit him to purchase its services using an "automatic telephone dialing system." Landy incurs a charge for incoming calls and his number is on the National Do-Not-Call Registry. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com LEGALLY MINE: Cal. Northern Dist. Reinstates Eliasieh Class Suit ---------------------------------------------------------------- In the case, KASRA ELIASIEH, Plaintiff, v. LEGALLY MINE, LLC, Defendant, Case No. 18-cv-03622-JSC, No. 19-cv-05977-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California (i) granted the Plaintiff's motion to reinstate the case and for leave to amend the complaint, and (ii) denied the Plaintiff's request for sanctions and ancillary relief. Eliasieh commenced the state law putative class action against Legally Mine arising from the Plaintiff's purchase of an asset protection plan. The Plaintiff filed the underlying complaint against Defendant on June 18, 2018. He brought 14 claims under the California Unfair Competition Law ("UCL"), the California Consumer Legal Remedies Act ("CLRA"), and California common law. The Defendant failed to timely file a responsive pleading, and after the clerk entered default, the Plaintiff moved for default judgment on Oct. 12, 2018. It moved to set aside default that same day, and the Court subsequently granted its motion and set aside the default. The Defendant then filed a motion to compel arbitration and dismiss, or in the alternative, stay the action, which the Court granted and dismissed the action without prejudice to reinstatement should further proceedings be necessary. The catalyst for this motion is what transpired since the Court granted the Defendant's motion to compel arbitration. The Plaintiff filed his demand for arbitration with the American Arbitration Association ("AAA") -- the entity designated by the parties' arbitration agreement -- on July 11, 2019 and served a copy of the demand on the Defendant the same day. On Aug. 6, 2019, AAA sent a letter to all the parties stating that it had determined that the arbitration arises out of a consumer agreement and, as such, the Consumer Arbitration Rules ('Consumer Rules') apply. AAA asked the Defendant to register its consumer arbitration agreement on AAA's "Consumer Clause Registry" and submit it for review to determine material compliance with the due process standards of the Consumer Due Process Protocol and the Consumer Rules. In addition, before moving forward with the administration, AAA asked the Defendant to waive the venue provision requiring arbitration to be exclusively conducted in Utah, waive another provision related to stripping the arbitrator of any power or discretion to award costs or attorneys' fees, and agree to have the matter and any future consumer arbitrations filed under the agreement administered under the Consumer Rules and in compliance with its Due Process Protocol. AAA stated that the two provisions needed to be waived because they violated AAA's Consumer Due Process Protocol principles. Lastly, the letter directed the Defendant to pay its portion of the filing fee, arbitration agreement registration fee, and arbitrator's compensation. On Aug. 22, 2019, AAA sent a second letter noting that it had not received the administrative fees and arbitrator compensation. Further, AAA wrote that the Defendant had failed to comply with AAA's request to waive the two provisions, and to have it and all consumer arbitrations heard in compliance with the AAA Due Process Consumer Protocol. The letter warned that AAA may close the case and refuse to administer any arbitration involving the Defendant, and requested that the Defendant remove the AAA name from its arbitration clause. With its third letter on Sept. 10, 2019, AAA terminated the arbitration. The letter informed all parties that because AAA had not received the required fees from Legally Mine, it must decline to administer the case and had closed its file. AAA also stated that because the Defendant's non-payment constitutes a failure to adhere to its policies regarding consumer claims, it may decline to administer future consumer arbitrations involving Legally Mine. Similar to its Aug. 22, 2019 letter, AAA also requested that the Defendant remove the AAA name from its consumer arbitration clause so that there is no confusion to the public regarding its decision. Two weeks later, the Plaintiff filed a new action alleging that the matter once again needed to proceed in the district court because AAA had declined to exercise jurisdiction due to the Defendant's refusal to comply with AAA's procedures. The Court subsequently related the new case to the previously dismissed case and scheduled a status conference. At the Nov. 21, 2019 status conference, the Court reopened the earlier-filed action and gave Defendant until Dec. 12, 2019 to resolve the issues with the arbitration proceeding. The Court also set a briefing schedule for the Plaintiff to file a motion for relief with respect to the arbitration proceedings and/or the Court's order compelling arbitration. The Plaintiff thereafter filed the underlying motion to lift the stay and reinstate the case, for sanctions, and to amend the complaint. The Plaintiff contends that the Court should exercise jurisdiction over the case for three reasons: (1) the Defendant's conduct breached its obligation to arbitrate with the Plaintiff, and that breach excuses him from having to arbitrate; (2) the Defendant's conduct constitutes a default in the arbitration and it has now lost its standing to avoid federal court litigation; and (3) the Defendant has waived its right to arbitration. Magistrate Judge Corley finds that there was no confusion as to what Defendant had to do -- AAA had asked it to pay the fees and waive the two conditions, and if it disagreed with AAA's decision of which rules applied, to raise those concerns once arbitration was initiated. The Defendant did none of these. Accordingly, because the Defendant's nonpayment of fees and noncompliance with AAA's procedures resulted in termination of arbitration proceedings, the Defendant is in material breach of the arbitration agreement and cannot compel the Plaintiff to arbitrate his claims. As to the Defendant's request for ancillary relief, in light of its recent corrective conduct, the Court finds that it is not appropriate at this stage. As of Jan. 28, 2020, the Defendant has now registered its consumer arbitration clause with AAA and it no longer contains the two problematic provisions that AAA had requested the Defendant to waive. Presumably, the reasons behind AAA's warning that it may decline to arbitrate proceedings involving the Defendant along with its request for it to remove its name from the arbitration clause have been rectified. Additionally, the Plaintiff has not provided the Court with any indication that it is using similar tactics with other potential litigants to avoid arbitration of claims. Given the Defendant's registry of the consumer clause, the Court in its discretion declines to impose the ancillary relief sought. Finally, the Court finds that the balance of factors supports granting the Plaintiff leave to amend under Federal Rule of Civil Procedure 15(a)(2). First, the Defendant has not shown, nor is there any indication that amending the complaint would prejudice it. Second, there is no evidence of bad faith. Third, there is no evidence of undue delay. Finally, a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense. The Defendant has not met its burden of showing futility. For the reasons she stated, Magistrate Judge Corley granted the Plaintiff's motion to reinstate the case and for leave to amend the complaint, and denied the Plaintiff's request for sanctions and ancillary relief. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/iGEeoE from Leagle.com. LIBRE TECHNOLOGY: $425K Settlement in Hudson Gets Prelim. Approval ------------------------------------------------------------------ In the case, EBONY HUDSON, an individual and on behalf of all others similarly situated, Plaintiff, v. LIBRE TECHNOLOGY INC., doing business as Student Loan Service, Docupop, and Student Loan Service, US; ANTONY MURIGU; JASON BLACKBURN; and BRIAN BLACKBURN, Defendants, Case No. 3:18-cv-1371-GPC-KSC (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California granted Hudson's renewed unopposed motion for preliminary approval of class and collective action settlement in the wage-and-hour dispute. On June 21, 2018, Plaintiff Ebony Hudson brought the putative Rule 23 class action/FLSA collective action against Defendants Libre Technology, Anthony Murigu (its owner), Jason Blackburn (its COO), and Brian Blackburn (Director of Operations) for violations of California laws and Fair Labor Standards Act (FLSA). Before the Court is Plaintiff Ebony Hudson's renewed unopposed motion for preliminary approval of class and collective action settlement in a wage and hour dispute. After a review of the briefing and supporting documentation, on April 21, 2020, the Court directed Plaintiff to submit supplemental briefing and documentation to address a number of deficiencies and discrepancies noted by the Court. A copy of the April 21 order is available at https://is.gd/wnH5pf from Leagle.com. On May 1, 2020, Plaintiff, after meeting and conferring with Defendants, filed a supplemental brief with supporting documentation in support of her renewed motion. Plaintiff had previously filed a motion for preliminary approval of class action settlement, which the Court granted in part and denied in part on November 13, 2019. In that order, the Court preliminarily granted Plaintiff's request to (1) preliminarily certify the Rule 23 class, (2) be named Class Representative, (3) and appoint Trenton R. Kashima and Kevin J. Stroops as class counsel. The Court also sua sponte conditionally certified the FLSA collective. However, the Court denied preliminary approval of the settlement due to Plaintiff's failure to include a Fair Labor Standards Act ("FLSA") opt-in procedure as well as including provisions in the Class Notice concerning an opt-in procedure for the FLSA collective action settlement. In response, Plaintiff has refiled the instant renewed unopposed motion for preliminary approval of class action settlement and collective action settlement as well as the Court ordered supplemental briefing. Proposed Modified Settlement Based on the Court's prior order, the Settlement Agreement was amended to specify a separate FLSA Sub-Class, as previously conditionally certified by the Court, to include all persons who are members of the Rule 23 Class and who were employed by the Defendant in California as a non-exempt employee at any time from June 21, 2015 to the date of Preliminary Approval and who opt-in to the FLSA Sub-Class as provided by this Settlement Agreement and the Class Notice. While the compensation under the settlement remains unchanged, a portion of the Gross Settlement Amount is segmented to compensate for the FLSA Sub-Class for their FLSA Release. The Settlement Class will receive $425,000, inclusive of all payments to Settlement Class Members, the Class Counsel Fees and expenses, incentive award to the Plaintiff, the settlement administration costs, and PAGA payments to the LWDA. The Plaintiff estimates the following allocation of the Gross Settlement Amount: (i) $7,0001 to Phoenix Settlement Administrators, the proposed Settlement Administrator; (ii) $6,000 to the Plaintiff as an incentive award compensating her for her service as the Class Representative; and (iii) a payment of up to $127,500 for attorneys' fees and $15,000 for litigation cost. The parties also agreed $21,250 or 5% of the settlement proceeds which will be allocated to PAGA penalties, $15,937.50 (or 75%) of which will be paid to the California Labor Workforce and Development Agency ("LWDA") to settle claims and remedies under Labor Code, sections 2699 et seq., and the remaining amount $5,312.50 (25%) will be allocated pro rata to the participating Class Members. No portion of the settlement funds will revert to the Class. Instead, any unclaimed settlement funds will escheat to the State, in the same manner as any unclaimed wages, until it is claimed. The Plaintiff estimates that the portion of the settlement to be shared by the Settlement Class will be $240,562.50. Additionally, $13,000 of the Settlement funds will be allocated to the Settlement of the FLSA claims. The Settlement Class will share the opportunity to receive $253,562.50 in compensation. The Net Settlement Amount will be apportioned and paid out entirely, and automatically, to all the Settlement Class Members. A participating Class Member's share of the Settlement will be calculated as follows: First, the estimated Net Settlement Amount will be determined by subtracting the estimated Class Counsel Fees and Expenses Payment, the Class Representative Payments, the Settlement Administration Costs, FLSA Settlement Amount, and PAGA Payment due to the LWDA. Second, the estimated Net Settlement Amount will be divided by the total number of workweeks for all potential Settlement Class Members to calculate the Workweek Value (i.e., the amount to be allocated for each workweek). Third, each Settlement Class Member's Settlement Share will be determined by multiplying the Class Member's total number of weeks worked during the Class Period by the Workweek Value. The FLSA Settlement Amount will be distributed in a similar "per workweek" manner for the FLSA Sub-Class. A participating Class Member will receive $2,347.80 (or $47.92 per workweek), on average, under the Settlement, assuming he/she submits a FLSA claim. However, regardless of their decision to opt-in to the FLSA Sub Class, the average Settlement Class Member will automatically receive a check for $2,227.43 (or $45.46 per workweek). The amount due to each Settlement Class Member under the Settlement, less taxes and withholdings, will be provided by check. In exchange, the Settlement Class will release the Defendants from all claims. Excluded from the Released Claims are any claims arising under the FLSA except those FLSA Sub-Class Members, who opted to receive FLSA Settlement Share, will be deemed to have released all claims under FLSA. Revised Class Notice The Revised Class Notice will be accompanied by the Class Member Information Sheet which will be including the Class Member's first and last name, last known address, and the estimated amount of the Class Member's Settlement Share, as well as a FLSA Opt-In Form and Class Action Opt-Out Form. The Revised Class Notice will inform Class Members of the benefits offered under the Settlement, as well as their right to opt-out or object to the Settlement, and the option to opt-in to the FLSA Sub-Class. Class Members shall have forty-five (45) days from the initial mailing of the Class Notice Packet to opt-out, object to the Settlement and join the FLSA Sub-Class. Class Members can submit a FLSA Opt-In Form electronically at www.libreFLSAsettlement.com or by mail. No later than seven days after the deadline for submission of the FLSA Opt-In Form, requests to be excluded, and/or objections, the Settlement Administrator shall provide Defendants with notice of all exclusions, objections, and FLSA Opt-Ins. Order Upon review, the Court finds that (1) Plaintiff and Class Counsel have adequately represented the class, (2) the Settlement was negotiated at arm's length, (3) the relief provided to the class is adequate, and (4) the proposed settlement treats class members equitably relative to each other. In sum, the Court concludes that the Settlement is fair, reasonable and adequate. Accordingly, the Court grants preliminary approval of the proposed class action settlement. The Court appointed Phoenix Settlement Administrators as the Settlement Administrator and preliminarily approved the allocated Settlement Administrator Payment. The Settlement Administrator will prepare final versions of the Revised Class Notice. The Court concludes that the Revised Class Notice as well as the procedure set forth in the Settlement Agreement for providing notice to the Class Members, will provide the best notice practicable under the facts and circumstances of the case. The Court thus finds that the notice requirements for class and collective actions are satisfied. All proceedings and all litigation of the Action, other than those pertaining to the administration of the Settlement, are stayed pending the Final Approval Hearing. The Court will conduct a Final Approval Hearing on Aug. 7, 2020 at 1:30 p.m. A full-text copy of the District Court's May 12, 2020 Order is available at https://is.gd/4ab8eq from Leagle.com. LOWE'S HOME: Williams Suit Challenges Sale of Herbicide Roundup --------------------------------------------------------------- Kristy Williams, individually and on behalf of all others situated v. LOWE'S HOME CENTERS, LLC, a North Carolina limited liability company; Case No. 5:20-cv-01356 (C.D. Cal., July 6, 2020), is brought to redress the unfair business practices employed by the Defendant in connection with its sale of the herbicide Roundup. The Defendant's retail stores and Web site sold various formulations of Roundup directly to consumers despite the Defendant's knowledge Roundup can cause cancer, according to the complaint. The Defendant is indeed aware that California has classified glyphosate--the active ingredient in Roundup--as a chemical known to cause cancer, such as Non-Hodgkin's lymphoma ("NHL"). The Defendant is also aware glyphosate is a Class 2A herbicide, meaning the World Health Organization's International Agency for Research on Cancer has determined it is probably carcinogenic to humans. The Defendant has also known Roundup and other glyphosate-based herbicides have been banned by many countries, regions, and municipalities throughout the world because it is dangerous to human health. The Plaintiff contends that the Defendant is further aware that, within the past two years, three California juries found that Roundup likely caused certain individuals to develop NHL and have awarded nearly $100 million in compensatory damages and over $2 billion in punitive damages collectively. Additionally, the Defendant is aware of the tens of thousands personal injury cases brought by individuals, who have alleged Roundup(R) exposure caused their cancer. Despite the Defendant's knowledge of Roundup's potential carcinogenicity, the Defendant has and continues to sell Roundup without providing consumers with any additional information on its Web site, store shelves or at the point of sale about the products' potential health risks, the Plaintiff alleges. Although the Environmental Protection Agency ("EPA") under the current administration has stated glyphosate is not likely to be carcinogenic to humans, the Defendant, at the very least, should inform consumers there is a vigorous scientific dispute over its potential carcinogenicity, the Plaintiff asserts. The Defendants' conduct--continuing to sell a line of weed killer products despite knowing they may be carcinogenic and without informing consumers about the potential health risks--constitutes an unfair business practice under the Unfair Competition Law, the Plaintiff insists. The Defendant did not provide the Plaintiff with any information regarding the carcinogenic nature of Roundup, says the complaint. The Defendant could have, but failed to provide such information by, for example, displaying it on the shelves where Roundup was sold (or, for some consumers, on the product pages online). Had the Plaintiff known of the carcinogenic properties of Roundup and its links to cancer, she says she would not have purchased it. The Plaintiff purchased two bottles of Roundup Extended Control Weed & Grass Killer Plus Weed Preventer II, one bottle of Roundup Ready-To Use Weed and Grass Killer III with Pump 'N Go 2 Sprayer, and one bottle of Roundup Ready-to-Use Weed & Grass Killer III during the Class Period. LOWE'S HOME CENTERS, LLC, is a chain of American hardware stores and warehouses headquartered in Mooresville, North Carolina. The Defendant is engaged in the marketing, sale, and distribution of a product line of the herbicide Roundup.[BN] The Plaintiff is represented by: Gillian L. Wade, Esq. Sara D. Avila, Esq. Marc A. Castaneda, Esq. MILSTEIN JACKSON FAIRCHILD & WADE, LLP 10250 Constellation Blvd., Suite 1400 Los Angeles, CA 90067 Phone: (310) 396-9600 Fax: (310) 396-9635 Email: gwade@mjfwlaw.com savila@mjfwlaw.com mcastaneda@mjfwlaw.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Suite 311 Great Neck, NY 11021 Phone: (516) 303-0552 Facsimile: (516) 234-7800 - and - Lydia Sturgis Zbrzeznj, Esq. SOUTHERN ATLANTIC LAW GROUP, PLLC 99 6th Street SW Winter Haven, FL 33880 Phone: (863) 656-6672 Facsimile: (863) 301-4500 MACY'S WEST: Vazquez Sues Over Unlawful Wages --------------------------------------------- KARLA VAZQUEZ, individually and on behalf of all others similarly situated, Plaintiff, vs. MACY'S WEST STORES, INC., corporation; and DOES through 20, inclusive, Defendants, Case No. 20CV367943 (Calif. Super., Santa Clara Cty., July 8, 2020) is a representative action brought by the Plaintiff against Defendant Macy's West Stores, Inc., and DOES through 20, inclusive, on behalf of the State of California and other aggrieved employees who were employed by Defendants as non-exempt employees throughout California, pursuant to the California Labor Code Private Attorneys General Act of 2004, codified at Labor Code Section 2698, et seq. ("PAGA"). Plaintiff is informed and believes, and thereon alleges, that Defendants have increased their profits by violating state wage and hour laws by, among other things, failing to: (a) authorize or permit lawful rest breaks or provide compensation in lieu thereof; (b) provide accurate itemized wage statements; and (c) pay all wages due upon separation of employment. Plaintiff seeks to recover civil penalties, attorneys' fees, costs, and expenses pursuant to PAGA, and California Code of Civil Procedure. Plaintiff is a resident of California and worked for Defendants in California during the relevant time periods as alleged herein. Macy's West Stores, Inc. operates department stores throughout California.[BN] The Plaintiff is represented by: Kashif Haque, Esq. Samuel A. Wong, Esq. Jessica L. Campbell, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: jcampbell@aegislawfirm.com MALLINCKRODT PHARMA: Methadone Patients File Class Action --------------------------------------------------------- Lisa Hedmark, writing for The Runner, reports that the B.C. government switched all Methadone patients to a cheaper and less effective alternative called Methadose in 2014. According to an article by the Globe and Mail, the new formulation was 10 times stronger, meaning patients only needed to take a tenth of the amount they had previously taken. An estimated 18,000 people were switched from the old formula to the new drug without notice or consent. This caused thousands of deaths in B.C. The lead plaintiff, Laura Shaver, is an editorial board member of the Vancouver-based Crackdown podcast, President of the British Columbia Association of People on Methadone, and a board member for the Vancouver Area Network Drug Users. The podcast's host, Garth Mullins--and almost everyone else on the editorial board--is a current drug user and activist. Methadone is a liquid drink that is taken daily by ex-opiate users to avoid the withdrawal symptoms that come with getting and staying clean. The drink must be taken at a pharmacy every day when it's first prescribed. Mullins talks about this in the second episode of Crackdown, "Change Intolerance". Once the user is stabilized for a period of time they take home "carries"--a prescription lasting between a few days to a few weeks. "Ask anyone who takes methadone and they'll tell you that it is a slog. All the rules and the daily pharmacy visits are why we call it 'liquid handcuffs.' It can make you feel like you're flatlining through life. Or constipated. Or sweaty," says Mullins. "But still, methadone saved my life. It's all I do now. And methadone has also saved the lives of thousands of people here in British Columbia and around the world. That's why what happened in 2014 is so fucked up." In episode 17, titled "Class Action", Mullins goes over the damages done to Methadone patients since the B.C. government decided to switch to a cheaper drug called Methadose in 2014. Shaver went back to using injectable street drugs within a week of the medication switch. "It was the middle of the night, I think, February 3, I woke up feeling like my legs would, were moving and couldn't sleep and I felt like . . . twitches. By the sixth of February . . . my body really felt it," she said on the podcast. "Like, it was bad and I started to use heroin right then, right away, because . . . I can't do withdrawal. It doesn't work for me." Shaver has overdosed eight times since pharmacies made the switch to Methadose. "The people that caused this--the College of Pharmacists, Mallinckrodt Pharmaceuticals and the Province--I want them to look at me and see," she said. "There were eight separate times that I kind of died, you know, and that was because I was now no longer stable on a medication." Chereece Keewatin was also a part of the Crackdown editorial board and was a president of the BCAPOM. She passed away on Feb. 20, 2019 from complications related to the switch to Methadose. "That five years of being dope sick everyday put a generation of aging on her," says Mullins in episode 17. After the death of a beloved colleague and friend, the Crackdown team and BCAPOM released a list of demands: "(1) We demand access to the old methadone formulation immediately. Give us medication that works for us, whether that is methadone, Metadol-D, Suboxone, slow release oral morphine, injectable Dilaudid, or prescription heroin. (2) We demand to have a say in policy decisions about our lives. Nothing about us without us. (3) We demand an apology from Mallinckrodt, the BC Ministry of Health, and the BC College of Pharmacists. (4) We demand a formal investigation to determine why Methadose(R) failed." Although not all of these demands have been met yet, the team is seeking reparations and to empower patients to be able to choose a medication that suits them. [GN] MASIMO CORP: PHI Appeals Class Certification Denial to 9th Cir. --------------------------------------------------------------- Plaintiffs Physicians Healthsource Inc., and Radha Geismann M.D. P.C., filed an appeal from the District Court's November 21, 2019 order denying their motion for class certification in the lawsuit titled Physicians Healthsource, Inc., et al. v. Masimo Corporation, et al., Case No. 8:14-cv-00001-JVS-ADS, in the U.S. District Court for the Central District of California, Santa Ana. The Plaintiffs want the Appeals Court to determine whether the District Court "applie[d] the wrong legal rule" or erred in its "application of the law to the facts," True Health I, 836 F.3d at 928: 1. in finding PHI an inadequate class representative; 2. in finding Geismann an inadequate class representative; 3. in finding Anderson + Wanca and Montgomery Jonson inadequate class counsel; and 4. in declining to appoint Geragos & Geragos as class counsel, where there is no allegation of any wrongdoing against that firm, where that firm had no involvement in Allscripts, and where the district court's decision left an otherwise properly certified class with strong claims on the merits against Masimo without any representation at all. As previously reported in the Class Action Reporter, on Jan. 2, 2014, this putative class action complaint was filed against the Company in the U.S. District Court for the Central District of California by Physicians Healthsource, Inc. The complaint alleges that the Company sent unsolicited facsimile advertisements in violation of the Junk Fax Protection Act of 2005 and related regulations. The complaint seeks $500 for each alleged violation, treble damages if the District Court finds the alleged violations to be knowing, plus interest, costs and injunctive relief. The appellate case is captioned as Physicians Healthsource, Inc., et al. v. Masimo Corporation, et al., Case No. 19-80159, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Petitioners PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, and RADHA GEISMANN, M.D. P.C., are represented by: Glenn L. Hara, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847-368-1500 E-mail: ghara@andersonwanca.com Defendants-Respondents MASIMO CORPORATION, DBA Delaware Masimo Corporation, and MASIMO AMERICAS INC. are represented by: Stephen C. Jensen, Esq. Benjamin Katzenellenbogen, Esq. Stephen W. Larson, Esq. Joseph R. Re, Esq. Lisa Luongo, Esq. Perry Oldham, Esq. KNOBBE MARTENS OLSON & BEAR LLP 2040 Main Street Irvine, CA 92614 Telephone: 949-760-0404 E-mail: steve.jensen@knobbe.com ben.katzenellenbogen@knobbe.com stephen.larson@knobbe.com joe.re@knobbe.com Lisa.Luongo@knobbe.com Perry.Oldham@knobbe.com - and - Adam Powell, Esq. KNOBBE, MARTENS, OLSON & BEAR LLP 2465 Easy Bayshore Road Palo Alto, CA 94303 Telephone: 650-752-1100 E-mail: adam.powell@knobbe.com - and - Lauri Anne Mazzuchetti, Esq. KELLEY DRYE & WARREN LLP 101 Park Avenue New York, NY 10178 Telephone: 212-808-7800 E-mail: lmazzuchetti@kelleydrye.com MASON COUNTY, WA: Sued Over Hood Canal Mining Operation ------------------------------------------------------- MasonWebTV.com reports that a class action lawsuit was filed on June 29 in U.S. District Court in Tacoma over a surface mining operation on the north shore of Hood Canal. The suit, filed by a dozen property owners in the vicinity of the operation owned by Grump Ventures LLC, names Mason County, Randy Neatherlin (as an individual and in his capacity as Mason County Commissioner), David Windom (as an individual and in his capacity as Director of Mason County Community Services), Grump Ventures' principal Russell Scott and others as defendants. The lawsuit centers around whether Grump Ventures' surface mine can extend from the original 1.87 acres to the adjacent 66.5 acres as allowed by Form SM-6 which exempts the mine from the requirements of zoning ordinances. Most of the acreage in question is Designated Forest Land and adjacent to parcels zoned residential. According to the 15-page complaint, as Director of Community Services, David Windom has final decision-making authority on Form SM-6 matters and signed the document in question on June 30, 2017. The complaint also says notice of the Form SM-6 approval was not given until 2018 when the County issued a "mitigated determination of nonsignificance" pursuant to Washington's State Environmental Policy Act ("SEPA"). The suit alleges that Mason County and the named individuals disregarded the recommendation from planning staff not to extend mining operations, pressured staff for a signature on the Form SM-6, and hid key items relating to Grump's application including a 1963 aerial photo and staff memorandum in order to "cover up their unlawful and unconstitutional act . . ." In their complaint, the plaintiffs say they were deprived of "rights, privileges, or immunities secured by the Constitution and federal laws." And "deprived of property rights without due process of law." The complaint also says, "Defendants actions were arbitrary, irrational, invidious and tainted by improper motive and violated plaintiffs' substantive due process rights." By approving the Form SM-6, the lawsuit also states, the County "gifted a property right to Grump," and "would introduce a massive industrial surface mine into a peaceful residential area" depriving plaintiffs of "the use and enjoyment of their property." Plaintiffs would also be subject to "significant health threats from air pollution" and loud noise and vibration from excavating. The suit is asking that the court to "Vacate and set aside the Form SM-6." The complaint doesn't include a dollar amount but does ask to pay the plaintiffs "the damages they incur as a result of the defendants' unconstitutional conduct" as well as litigation costs and attorneys' fees. [GN] MATTERPORT: Faces Class Action Over Lead Program ------------------------------------------------ Jim Dalrymple II, writing for Inman, reports that Matterport is facing a class action lawsuit over its lead program. John Stemmelin says he invested tens of thousands of dollars trying to build a 3D scanning business, but Matterport's promised leads never materialized. [GN] MDL 2775: Caporale v. Smith & Nephew Moved to District of Maryland ------------------------------------------------------------------ In the case, IN RE: SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION, MDL No. 2775, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled, CAPORALE v. SMITH & NEPHEW, INC., ET AL., C.A. No. 1:20-01263, from the Northern District of Illinois to the District of Maryland and, with the consent of that court, assigned it to the Honorable Catherine C. Blake for coordinated or consolidated pretrial proceedings. Plaintiff Gabriel J. Caporale moves under Panel Rule 7.1 to vacate the Panel's order that conditionally transferred the Caporale action to the District of Maryland for inclusion in MDL No. 2775. Defendant Smith & Nephew, Inc., opposes the motion. In opposition to transfer, plaintiff argues that Caporale should not be transferred until the transferor court has decided the pending motion to remand Caporale to state court. As a general matter, the pendency of jurisdictional objections is not sufficient reason to delay or deny transfer. Plaintiff can present his remand motion to the transferee court. Plaintiff also contends that transfer is not appropriate because he asserts claims against a distributor of Smith & Nephew products — Neubauer Perkins, Inc. The presence of additional facts, theories, and parties, however, is not significant when the actions arise from a common factual core. Caporale will require the same discovery of the BHR system, the R3 metal liner, and Smith & Nephew's conduct as the actions in the MDL. That plaintiff's claims may require additional discovery does not bar transfer. Plaintiff further argues that he will suffer delay and prejudice if Caporale is transferred to the MDL. Transfer of an action is appropriate if it furthers the expeditious resolution of the litigation taken as a whole, even if some parties to the action might experience inconvenience or delay. Accordingly, after considering the argument of counsel, Judge Caldwell finds that the action involves common questions of fact with the actions transferred to MDL No. 2775, and that transfer under 28 U.S.C. Section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In the Panel's order centralizing this litigation, the Judge held that the District of Maryland was an appropriate Section 1407 forum for actions sharing factual questions concerning the design, manufacture, marketing, or performance of Smith & Nephew's BHR system. The actions in this MDL focus on complications arising from the use of a cobalt-chromium alloy in the manufacture of the BHR components. The Panel also has held that full hip arthroplasties involving the R3 metal liner — a BHR component — fall within the scope of the MDL. Plaintiff in Caporale alleges that he suffered complications arising from the metal-on-metal nature of the BHR component (the R3 metal liner) used in his hip replacement procedure. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/SUV0xU MDL 2848: Court Remands Gentile v. Merck to Southern Dist. of Ohio ------------------------------------------------------------------ In the case, IN RE: ZOSTAVAX (ZOSTER VACCINE LIVE) PRODUCTS LIABILITY LITIGATION, MDL No. 2848, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order remanding GENTILE V. MERCK & CO., INC., ET AL., C.A. No. 2:20-20000(S.D. Ohio, C.A. No. 2:19-04174) from the Eastern District of Pennsylvania to the Southern District of Ohio. Defendants Merck & Co., Inc., and Merck Sharpe & Dohme Corp. ("Merck") move under Panel Rule 10.2 to vacate the Panel's order conditionally remanding the action (Gentile) to the Southern District of Ohio, its transferor court. Plaintiff opposes the motion to vacate and supports remand. After considering the argument of counsel, the Panel finds that remand of this action under 28 U.S.C. Section 1407 is warranted. As an initial matter, "[i]n considering the question of remand, the Panel has consistently given great weight to the transferee judge's determination that remand of a particular action at a particular time is appropriate because the transferee judge, after all, supervises the day-to-day pretrial proceedings." In his suggestion of remand, the transferee judge, the Honorable Harvey Bartle III, observed that "[t]his MDL now consists of over 1, 300 product liability cases," which he contrasted with the putative class action claims in Gentile. He determined that "Gentile is outside the purview of MDL 2848," and thus suggested remand, explaining: "In essence, plaintiff claims that she and the class members were duped into obtaining Zostavax vaccines in Ohio as a result of false and deceptive marketing by Merck instating that Zostavax was effective for long-term prevention against shingles. Significantly, there are no allegations in the complaint in Gentile that plaintiff or any putative class member has suffered any illness or injury, physical or mental, from taking or being vaccinated with Zostavax. Simply stated, this is not a products liability case." His focus on the absence of personal injury allegations comports with the Panel's determination in the initial transfer order that centralization of this litigation was warranted based on "common factual questions arising out of allegations that Zostavax, a live vaccine for the prevention of shingles, caused plaintiffs to develop shingles or other injuries triggered by exposure to the live, attenuated varicella zoster virus contained in the vaccine." In other words, the common allegation of personal injuries arising from exposure to the live virus component of Zostavax is at the crux of the actions in the MDL. In opposing remand, defendants assert that (1) Gentile shares common factual questions with the actions in the MDL as to the "efficacy" of Zostavax, highlighting numerous factual allegations in the MDL complaints concerning Zostavax's efficacy; (2)Gentile thus involves common discovery on core issues such as the marketing, design, and efficacy of Zostavax; and (3) centralization of personal injury actions with economic loss class actions involving the same product is well-supported by precedent and appropriate here because of overlapping discovery, Daubert issues, and the transferee judge's familiarity with the subject matter of this litigation. Undoubtedly, Gentile presents some factual overlap with the actions in the MDL, and centralization of product liability and consumer class action claims in the same MDL often is appropriate. However, the record before the Panel indicates that, nearly two years into this particular MDL, there have been no class action claims aside from the recently transferred Gentile action. Thus, although consumer class action claims often will be appropriate for inclusion in a product liability MDL, "[e]ach multidistrict litigation is unique, and transferee judges have broad discretion to determine the course and scope of pretrial proceedings." This is particularly so where, as here, the transferee judge finds that a single putative class action is an outlier among a large number of individual product liability actions, and the MDL has reached an advanced stage of discovery. The Panel finds it well within the discretion of the transferee judge, who undoubtedly is most familiar with whether Gentile would fit into the MDL pretrial proceedings, to determine that Gentile is too different from the MDL actions for inclusion. The Panel declines to second-guess the transferee judge's considered determination that Gentile does not belong in the MDL. Merck also argues that remand is "premature" because the transferee court suggested remand before conducting pretrial proceedings in Gentile. This argument is unpersuasive. The Panel has remanded actions within just a few months of transfer where the transferee judge determined the actions were not within the scope of the MDL. The Panel repeatedly has emphasized that "[w]hether Section 1407 remand is appropriate for an action in any particular multidistrict docket is based upon the totality of circumstances involved in that docket." Here, considering the totality of the circumstances, the Panel concludes that the transferee court reasonably concluded that remand of Gentile is warranted. To the extent that coordination among the MDL actions and Gentile is appropriate, the Panel encourages the parties to employ various cooperative efforts which may minimize the risk of duplicative discovery. The parties, who are well-familiar with the common pretrial proceedings, should be able to avail themselves of the documents and depositions accumulated under Judge Bartle's supervision of MDL No. 2848, and should direct the transferor court to any relevant pretrial rulings. A full-text copy of the Court's June 2, 2020 Remand Order is available at https://is.gd/9DzeRi MDL 2859: Trujillo v. Zimmer Moved to Southern Dist. of New York ---------------------------------------------------------------- In the case, IN RE: ZIMMER M/L TAPER HIP PROSTHESIS OR M/L TAPER HIP PROSTHESIS WITH KINECTIV TECHNOLOGY AND VERSYS FEMORAL HEAD PRODUCTS LIABILITY LITIGATION, MDL No. 2859, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled, TRUJILLO v. ZIMMER US, INC., ET AL, C.A. No. 3:19-00056, from the District of Nevada to the Southern District of New York and, with the consent of that court, assigned it to the Honorable Paul A. Crotty for inclusion in the coordinated or consolidated pretrial proceedings. Plaintiff in the District of Nevada action (Trujillo) moves under Panel Rule 7.1 to vacate the Panel's order conditionally transferring the action to the Southern District of New York for inclusion in MDL No. 2859. Defendants Zimmer US, Inc., Synvasive Technology, Inc., Biomet Orthopedics, LLC, and Biomet, Inc., oppose the motion to vacate. After considering the argument of counsel, Judge Caldwell finds that the Trujillo action involves common questions of fact with actions transferred to MDL No. 2859, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in the MDL share factual issues concerning the Zimmer M/L Taper Hip Prosthesis (M/L Taper) or the Zimmer M/L Taper Hip Prosthesis with Kinectiv Technology (Kinectiv) when either is paired with the VerSys Hip System Femoral Head (VerSys Head). These issues arise from allegations "that the interaction (junction) between the titanium alloy M/L Taper or Kinectiv and the cobalt-chromium alloy VerSys Head can result in trunnionosis (wear of the femoral head-neck interface), corrosion, and release of metal debris, which can lead to the implanted patient suffering metallosis, adverse local tissue reaction, loss of bone tissue (osteolysis), or other injury, and requiring revision surgery." The Trujillo action implicates those same issues. In her motion to vacate, the Trujillo plaintiff argues that transfer would inconvenience her and delay the progress of her action. These arguments are not persuasive. The Panel considers the convenience of the parties and witnesses as a whole in deciding the issue of transfer. Further, the record shows that the MDL is steadily progressing under the transferee judge's active management. Plaintiff also argues that MDLs generally favor defendants, and result in actions being settled for smaller amounts than if the cases were litigated individually. Section 1407 transfer, however, is for pretrial purposes only, and does not force a plaintiff to settle on terms she deems unfavorable. If Trujillo is not resolved, via settlement or otherwise, in the transferee court, it will be remanded to the District of Nevada for trial. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/kqxUWo MDL 2873: New Mexico's AFFFs PL Lawsuit Moved to South Carolina --------------------------------------------------------------- In the case, IN RE: AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY LITIGATION, MDL No. 2873, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring the action styled, STATE OF NEW MEXICO, ET AL. v. UNITED STATES, ET AL., C.A. No. 1:19-00178, from the District of New Mexico to the District of South Carolina and, with the consent of that court, assigned it to the Honorable Richard M. Gergel for coordinated or consolidated pretrial proceedings. Plaintiffs the State of New Mexico, by and through the New Mexico Attorney General Hector H. Balderas, and the New Mexico Environment Department (collectively, the State) move under Panel Rule 7.1 to vacate the Panel's order that conditionally transferred the New Mexico action to the District of South Carolina for inclusion in MDL No. 2873. The federal defendants in the New Mexico action did not respond to the State's motion and are deemed to acquiesce to it. Three common manufacturer defendants in the MDL -- Tyco Fire Products, LP, Chemguard, Inc., and 3M Company -- oppose the motion to vacate. The State argues that transfer is inappropriate because it asserts environmental remediation claims against the United States, rather than product liability claims against manufacturers or distributors of aqueous film-forming foams (AFFFs). Even so, the New Mexico action shares common factual questions with the actions pending in MDL No. 2873. Like many of those actions, the State alleges that groundwater near military bases was contaminated through the use of AFFFs to extinguish aviation fuel fires. Several actions involving claims against the United States relating to the use of AFFFs at Air Force bases have been transferred to or filed in the MDL. These actions will involve the same or similar discovery relating to the military's use of AFFFs, as well as the United States' defenses to liability. And, while most of the actions in the MDL involve product liability claims against AFFF manufacturers, a number of actions involve environmental claims brought by states, water authorities, or other governmental entities. Additionally, one of the two Air Force bases named in the State's complaint is directly at issue in the MDL. At least four actions pending in the MDL allege that the Air Force's use of AFFFs at Cannon Air Force Base contaminated nearby water supplies. Two of these actions involve claims against the United States. The New Mexico action is likely to share common factual questions and discovery with these actions. Centralization will allow coordinated discovery among all these actions to proceed in a streamlined and efficient manner. The State emphasizes that various defenses pertinent to the AFFF manufacturers, such as the government contractor defense, are not at issue in the New Mexico action. The Panel previously rejected the argument that actions that do not implicate the government contractor defense are inappropriate for transfer to MDL No. 2873. In any event, transfer under Section 1407 does not require a complete identity of factual and legal issues when the action, as does the New Mexico action, arises from a common factual core. The State also argues that it will be prejudiced by transfer. This argument is not convincing. Pretrial discovery relevant to the two Air Force bases at issue in the New Mexico action can take place in New Mexico. It is unlikely that any case-specific witnesses will be required to travel to South Carolina. Further, transfer to the MDL will allow for coordination of this discovery with the other actions in the MDL that assert claims relating to Cannon Air Force Base. And, the State's counsel already represents at least one other plaintiff in the MDL (the State of Vermont). Transfer thus is unlikely to place significantly greater costs on the State. Regardless, even if transfer does pose some inconvenience to the State, "we look to the overall convenience of the parties and witnesses, not just those of a single plaintiff or defendant in isolation." The pending motions for preliminary injunction and dismissal are not an impediment to transfer. These motions may well require resolution of factual and legal questions present in other actions pending in the MDL. Transfer thus will reduce the risk of inconsistent pretrial rulings. Moreover, a review of the docket gives no indication that a ruling by the transferor court is imminent. As the Panel stated when it created this MDL, to the extent the State seeks "unique or time-sensitive injunctive relief pertaining to its water supplies, [it] can and should raise such concerns with the transferee court." Finally, the State contends that transfer under Section 1407 is inappropriate because it would interfere with its responsibility for protecting local public health and safety and thus would offend its state sovereignty. This argument is curious, given that the State filed its action in federal court, asserted a federal cause of action, and names exclusively federal government defendants. Having done so, the State will not be heard to argue that only certain federal procedural rules and statutes are applicable to it. Furthermore, the plain language of Section 1407 applies to all civil actions. Had Congress wished to carve out RCRA complaints by states, it could have done so. Accordingly, after considering the argument of counsel, the Judge finds that the action involves common questions of fact with the actions transferred to MDL No. 2873, and that transfer under 28 U.S.C. Section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In the Panel's order centralizing this litigation, the Judge held that the District of South Carolina was an appropriate Section 1407 forum for actions in which plaintiffs allege that AFFF products used at airports, military bases, or certain industrial locations caused the release of perfluorooctane sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA) into local groundwater and contaminated drinking water supplies. The actions in the MDL share factual questions concerning the use and storage of AFFFs; the toxicity of PFOA and PFOS and the effects of these substances on human health; and these substances' chemical properties and propensity to migrate in groundwater supplies. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/DfmlER MDL 2913: Breathe DC and Lankford Suits Moved to N.D. California ---------------------------------------------------------------- In the case, IN RE: JUUL LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2913, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring two actions styled: BREATHE DC v. JUUL LABS, INC., C.A. No. 1:20-00619 (District of District of Columbia); and LANKFORD v. JUUL LABS, INC., ET AL., C.A. No. 4:20-00005 (Eastern District of Tennessee), to the Northern District of California and, with the consent of that court, assigned them to the Honorable William H. Orrick III for inclusion in the coordinated or consolidated pretrial proceedings. NJOY, LLC, defendant in an Eastern District of Tennessee action (Lankford) and Breathe DC, plaintiff in a District of District of Columbia action (Breathe DC), separately move under Panel Rule 7.1 to vacate the Panel's orders conditionally transferring their respective actions to the Northern District of California for inclusion in MDL No. 2913. The Lankford plaintiff opposes the motion as to his action, and defendant JUUL Labs opposes the motion as to Breathe DC. After considering the argument of counsel, Judge Caldwell finds that the Lankford and Breathe DC actions involve common questions of fact with actions transferred to MDL No. 2913, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions in the MDL share factual questions arising from allegations that "JLI has marketed its JUUL nicotine delivery products in a manner designed to attract minors, that JLI's marketing misrepresents or omits that JUUL products are more potent and addictive than cigarettes, that JUUL products are defective and unreasonably dangerous due to their attractiveness to minors, and that JLI promotes nicotine addiction." The Lankford and Breathe DC actions implicate many of those same questions. In opposition to transfer of Lankford, NJOY argues that its marketing practices are wholly different from those allegedly engaged in by co-defendant JLI, and that it has never marketed its products to children. These arguments are unpersuasive. In seeking to differentiate Lankford, NJOY overlooks the fact that the Lankford plaintiff alleges indivisible injury caused by his use of both JLI and NJOY products. Transfer under Section 1407 does not require a complete identity of factual or legal issues, or a complete identity of parties. Indeed, the Panel previously has transferred to this MDL other actions involving additional e-cigarette maker defendants. NJOY further argues that it would be inconvenienced by transfer. This argument also is unavailing. The Panel considers the convenience of the parties and witnesses as a whole in deciding the issue of transfer. The transferee judge has the discretion to employ separate tracks or other appropriate pretrial techniques to address any issues specific to NJOY and other non-JLI defendants. In its motion to vacate, Breathe DC argues that its action is limited to the issue of whether reasonable consumers in the District of Columbia would be misled by the labeling of JUUL pods as either "5.0% nicotine strength" or "3.0% nicotine strength." But a review of the Breathe DC complaint does not support plaintiff's narrow characterization of its own pleading, and demonstrates that the action implicates issues concerning not only JLI's marketing but also the development and manufacture of JUUL products, as well as JLI's knowledge. Although plaintiff's allegations maybe less expansive than those of some other plaintiffs, transfer under Section 1407 does not require a complete identity or even a majority of common factual issues. Breathe DC also argues that it is pursuing a private attorney general action, rather than a personal injury action or class action, that it is not seeking monetary relief, and that it likely will needless discovery than plaintiffs in the MDL. These arguments are unconvincing. The MDL already includes actions brought by various municipalities and school districts seeking, inter alia, injunctive relief. Moreover, the Panel routinely transfers actions seeking different forms of relief. As with Lankford, the transferee judge is free to use separate tracks or other methods to address any discovery or other issues unique to the Breathe DC action. Finally, Breathe DC argues that vacatur is warranted because its motion for remand to state court is pending before the transferor court. The Panel consistently has held, however, that the pendency of jurisdictional objections does not pose an impediment to Section 1407 transfer. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/CvtMnm MDL 2936: 8 SMITTY'S/CAM2 Suits Moved to Western Dist. of Missouri ------------------------------------------------------------------ In the case, IN RE: SMITTY'S/CAM2 303 TRACTOR HYDRAULIC FLUID MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2936, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring eight actions pending in eight districts to the Western District of Missouri, and with the consent of that court, assigned them to the Honorable Stephen R. Bough for coordinated or consolidated pretrial proceedings. Common defendants Smitty's Supply, Inc., and CAM2 International, L.L.C., move under 28 U.S.C. Section 1407 to centralize this litigation in the Eastern District of Louisiana or, alternatively, the Southern District of Texas. This litigation currently consists of eight actions pending in eight districts, as listed on Schedule A. Plaintiffs in all actions oppose centralization. In the event that the actions are centralized over their objection, they suggest the Western District of Missouri or, alternatively, the District of Kansas. Defendants Tractor Supply Company and Orscheln Farm and Home, LLC, support centralization in the Southern District of Texas. Defendant Rural King supports centralization, taking no position on the appropriate district. On the basis of the papers filed and the hearing session held, Judge Caldwell finds that these actions involve common questions of fact, and that centralization in the District of Kansas will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These putative class actions share complex factual questions arising from nearly identical allegations concerning the manufacture, labeling, marketing, and performance of Smitty's 303 tractor hydraulic fluid (THF) products, including those made for and sold by CAM2 International. Plaintiffs in all actions allege that defendants (1) deceptively marketed the products as meeting John Deere 303 specifications that allegedly became obsolete in the 1970s when an essential ingredient -- sperm whale oil -- was banned from use; (2) misrepresented the products' anti-wear and protective benefits; and (3) used inferior ingredients such as used oils and diluted additives that caused damage to plaintiffs' equipment. All actions further allege that plaintiffs suffered economic losses from buying an allegedly worthless product or a product worth less than plaintiffs paid. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification and Daubert motions; and conserve the resources of the parties, their counsel, and the judiciary. In opposing centralization, plaintiffs principally argue that informal coordination is a practicable and preferable alternative to centralization. They assert that informal coordination of discovery across all actions already is in progress; the vast majority of common document discovery is complete; and coordination is readily practicable because plaintiffs in all actions are represented by the same counsel, and defendants also are represented by common counsel. They further argue that centralization likely would delay proceedings in Zornes, in which class certification discovery is largely complete and a motion for class certification is pending. In response, defendants assert that informal coordination has been ineffective, describing an increasing number of substantive discovery disputes, and that discovery in most actions remains at an early stage. On balance, Judge Caldwell finds that centralization is preferable to informal coordination in this litigation. While the Judge strongly encourages informal coordination, the record before the Panel indicates that the development of numerous and significant discovery disputes will be a significant obstacle to efficient coordination in this litigation. For example, defendants assert that several depositions taken by plaintiffs' counsel in the District of Kansas Zornes action are duplicative of those taken in a recently resolved action (Hornbeck) involving the same subject matter and counsel. The parties also have been involved in a protracted dispute over the deposition of an executive level witness who likely will be common to all actions. And the litigation will involve significant expert discovery and Daubert motions, as to which informal coordination likely will be inadequate. Additionally, there are eight actions pending in eight different states.3All actions remain in discovery, including Zornes. Voluntary coordination across these dispersed districts, especially given the complexity of the factual questions and the number and nature of discovery disputes, appears problematic. Judge Caldwell concludes that the Western District of Missouri is an appropriate transferee forum. It is centrally located and easily accessible, making it a convenient forum for this nationwide litigation. The Honorable Stephen R. Bough, who presides over the Graves action on the motion, is familiar with the issues in this litigation. He is an experienced jurist with the ability and willingness to manage this litigation efficiently. The Panel is confident he will steer this matter on a prudent course. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/FzyFfN MDL 2938: 11 Suits vs. Evenflo Co. Moved to Massachusetts Court --------------------------------------------------------------- In the case, IN RE: EVENFLO COMPANY, INC., MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2938, Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has entered an order transferring 11 actions pending in eight districts to the District of Massachusetts and, with the consent of that court, assigned them to the Honorable Denise J. Casper for coordinated or consolidated pretrial proceedings. Plaintiffs in three actions have filed two separate motions under 28 U.S.C. Section 1407 to centralize pretrial proceedings in this litigation. Movants in two actions seek centralization in the District of Massachusetts. Movant in one action seeks centralization in the Eastern District of Wisconsin. Plaintiffs' motions include eleven actions pending in eight districts. The Panel also has been notified of 17 potentially related actions filed in eight districts. All responding parties support centralization. Plaintiffs in eight actions and potential tag-along actions support centralization in the District of Massachusetts. Defendant Evenflo Company, Inc. and plaintiffs in seven actions and potential tag-along actions support centralization in the Southern District of Ohio. On the basis of the papers filed and hearing session held, Judge Caldwell finds that the actions involve common questions of fact, and that centralization in the District of Massachusetts will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions arising from allegations that Evenflo misled consumers to purchase its "Big Kid" booster seats by (1) claiming the seats were "side impact tested" and exceeded governmental standards, without revealing that Evenflo created its own test, which showed that a child seated in its booster could be in danger in a side impact crash; and (2) failing to inform consumers that the seats were dangerous for children weighing less than 40 pounds. Each of these overlapping class actions will involve discovery regarding the design, testing, and marketing of the booster seat, as well as Evenflo's decision to represent the booster seat as safe for children under 40 pounds. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. The District of Massachusetts is an appropriate transferee district for this litigation. Ten cases are pending there before the Honorable Denise J. Casper, an experienced transferee judge. The Panel is confident she will steer these cases on an efficient and prudent course. Additionally, the District of Massachusetts, where Evenflo's senior management are located, is an easily accessible district for this nationwide litigation. A full-text copy of the Court's June 2, 2020 Transfer Order is available at https://is.gd/3CV69C MEDICAL CENTER: Averts Class Action Over Hospital Liens ------------------------------------------------------- Greg Land, writing for Law.com, reports that the Georgia Supreme Court nixed a putative class action claiming a Columbus hospital committed fraud by placing liens seeking the full amount of medical bills on patients, even though the actual negotiated amount billed and paid may be substantially less. The decision overturned a trial judge and divided Court of Appeals panel in the closely watched case, the first of several similar class actions that had been lined up against Georgia hospitals. The unanimous opinion, written by Chief Justice Harold Melton, said the claims of the proposed class members were too varied to warrant class status, and should be resolved on a case-by-case basis. "We always felt like The Medical Center was doing what every hospital across the state has been doing for years," said Hall Booth Smith partner Paul Ivey Jr. "It's unfortunate that it took us going all the way to the Supreme Court to get an opinion settling the issue," said Ivey. "It just validates that they're doing what they're supposed to do: file a lien for treatment, let the tort case go through the system, and when the dust settles the lien is negotiated," said Ivey. Ivey said he was aware of at least 14 more pending suits that have been on hold while the issue was resolved. "It has touched every hospital system in Georgia: Wellstar, Piedmont, MCCG--it's a major decision for all of them," said Ivey, who handled the case with firm colleagues Robert Martin Jr. and Lauren Dimitri, and Troutman Sanders partners Lindsey Mann and William Withrow Jr. The plaintiff's team includes Frank Lowrey IV, Michael Terry and Michael Baumrind of Bondurant Mixson & Elmore and Charlie and Austin Gower of Columbus' Charles A. Gower P.C. "While we respect the decision of the court, we continue to believe that the lien practices challenged in this litigation disproportionately affect the most vulnerable Georgians, including uninsured personal injury victims," said Charlie Gower via email. "We are assessing how best to proceed." As detailed in court filings, the case revolved around the hospital's reliance on set prices for procedures according to its "chargemaster" rate for billing patients. While everyone is charged that rate on paper, they seldom pay the full rate because third-party payers, including insurers, Medicare and Medicaid, usually negotiate a reduced bill. The named plaintiff, Danielle Bowden, was a passenger in an Enterprise rental car involved in a wreck in 2011. She was taken to the The Medical Center, which billed her $24,409 for her treatment and filed a medical lien attaching to any recovery she might receive as a result of her injuries. In 2012, Enterprise offered Bowden its $25,000 policy limits to settle any claims against it, filing an interpleader action and paying that amount into the court registry. Bowden filed a cross-claim challenging the lien as grossly excessive and not reflective of the actual value of care she received. The Medical Center subsequently offered to accept $8,333 to settle its claim, but Bowden refused. Bowden's claims against the hospital included unjust enrichment, breach of contract, fraud, negligent misrepresentation, racketeering and deceptive trade practices. An amended complaint sought class status, adding claims by three other Medical Center patients who had been uninsured, injured in auto accidents and subject to hospital liens as class representatives. Muscogee County Superior Court Judge Maureen Gottfried granted class certification and denied the hospital's motion for summary judgment. It appealed both rulings. In 2018 a Court of Appeals panel splintered, with Presiding Judge Yvette Miller writing the majority opinion affirming most of Gottfried's orders but agreeing with the hospital that the racketeering and deceptive trade practices claims should be dismissed. Miller wrote that there was enough commonality among the claims to support class status because the "common question applicable to all class members is whether the chargemaster rate, which universally served as the basis for the lien amount, was reasonable." Judge E. Trenton Brown concurred in the judgment only and Judge Steve Goss partially dissented, saying class certification was not appropriate. In the June 29 opinion, Melton wrote that the appeals court had itself conceded the proposed class included insured and insured patients, those whose liens had been lifted, and those who had settled their claims and never paid anything. Such a class is "overbroad in several respects," Melton said, and determining whether the chargemaster rate was appropriate for all of them would require an array of questions and answers defeating commonality. "Moreover," he wrote, "even if the class were limited to uninsured patients who had a lien filed at the chargemaster rate against any potential tort recovery, commonality would still be lacking. Just because an uninsured patient is billed at the chargemaster rate does not necessarily mean the charge itself is unreasonable for that specific patient." Even if a jury could arrive at some formula for determining a "reasonable charge," said Melton, determining what that charge is "still varies from class member to class member and is not subject to being resolved ‘in one stroke' for the entire class," wrote Melton. The opinion also said Gottfried and the Court of Appeals had erred in denying The Medical Center's motion for summary judgment on the claims for fraud, negligent misrepresentation and racketeering "against hospitals that properly file liens based on standard chargemaster rates that reflect true market considerations such as hospital costs." [GN] MIDLAND CREDIT: Faces Bolanos FDCPA Suit Over Collection Letter --------------------------------------------------------------- BERENICE BOLANOS, individually and on behalf of all others similarly situated v. MIDLAND CREDIT MANAGEMENT, INC., Case No. 5:20-cv-01324-JGB-SHK (C.D. Cal., June 30, 2020), alleges that MCM violates the Fair Debt Collection Practices Act. The Plaintiff says that on Feb. 8, 2020, she received a collection letter in Spanish that her Subject Debt was sold to MCM and that MCM is a "debt collection company" and that MCM "will be collecting on and servicing your account. She avers that she was confused by the February 8, 2020 letter because no "offers" were provided despite the fact that the letter included the phrase "no estamos obligandos a renovar ninguna oferta realizada", which basically translates to "we are not obligated to renew any offers provided." The Plaintiff was worried and confused by MCM's practice of mailing collection letters inside of envelopes embossed with the words "INFORMACION IMPORTANTE CERRADA" and ATENCION "ATTENTION REQUESTED." MCM's use of these words caused the Plaintiff to suffer anxiety and distress when she read the contents of the letter where marked in this manner, says the complaint. MCM is a debt collector.[BN] The Plaintiff is represented by: Nicholas M. Wajda, Esq. WAJDA LAW GROUP, APC 6167 Bristol Parkway, Suite 200 Culver City, CA 90230 Telephone: (310) 997-0471 E-mail: nick@wajdalawgroup.com MITO'S USA: Barraza Sues Over Unpaid Overtime Compensation ---------------------------------------------------------- The case, FELIX A. BARRAZA, and other similarly situated individuals, Plaintiff v. MITO'S USA LLC and CHAIBEN ELIAS KURY, Defendants, Case No. 0:20-cv-61343-XXXX (S.D. Fla., July 6, 2020) arises from Defendants' alleged unlawful payroll practices and procedures in violation of the Fair Labor Standards Act. Plaintiff worked for Defendants from approximately May 14, 2017 to June 30, 2020 as a cook. According to the complaint, Plaintiff worked approximately an average of 45 hours per week but Defendant failed to properly compensate Plaintiff at the rate of not less than one and one-half times his regular rate for all hours he worked in excess of 40 per week. Plaintiff seeks to recover unpaid overtime wages accumulated from the date of hire. Chaiben Elias Kury owns and has the operational control over Mito's USA LLC. Mito's USA LLC operates a restaurant. [BN] The Plaintiff is represented by: Tanesha Blye, Esq. Yadhira Ramirez-Toro, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Tel: (305) 503-5131 Fax: (888) 270-5549 Emails: tblye@saenzanderson.com yramirez@saenzanderson.com msaenz@saenzanderson.com MOSS NUTRITION: Website Not Accessible to Blind Users, West Claims ------------------------------------------------------------------ MARY WEST, on behalf of herself and all others similarly situated, Plaintiffs, v. MOSS NUTRITION PRODUCTS, INC., Defendant, Case No. 1:20-cv-05178 (S.D.N.Y., July 7, 2020) is a civil rights action brought by the Plaintiff against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its website, and therefore denial of its goods and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"), the lawsuit contends. 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. Moss Nutrition Products, Inc. is a nutrition and supplements company that owns and operates the website, www.mossnutrition.com.[BN] The Plaintiff is represented by: David P. Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: dforce@steinsakslegal.com MOTORISTS COMMERCIAL: King Cobra Suit Moved to W.D. Pennsylvania ---------------------------------------------------------------- The case captioned KING COBRA GROUP, LLC, doing business as: COBRA LOUNGE, individually and on behalf of a class of similarly situated persons v. MOTORISTS COMMERCIAL MUTUAL INSURANCE COMPANY, Case No. GD-20-06546, was removed from the Pennsylvania Court of Common Pleas, Allegheny County, to the U.S. District Court for the Western District of Pennsylvania on July 6, 2020. The District Court Clerk assigned Case No. 2:20-cv-01012-CB to the proceeding. The lawsuit arises from insurance-related issues. Motorists Commercial Mutual Insurance Co. operates as an insurance company. The Company offers automobile, property, umbrella, theft, life, workers' compensation, and liabilities insurance services.[BN] The Plaintiff is represented by: James C. Haggerty, Esq. HAGGERTY, GOLDBERG, SCHLEIFER, & KUPERSMITH 1835 Market Street, 27th Floor Philadelphia, PA 19103 Phone: (267) 350-6600 Fax: (215) 665-8201 Email: chesser@hgsklawyers.com The Defendant is represented by: Matthew A. Meyers, Esq. BURNS WHITE LLC Burns White Center 48 26th Street Pittsburgh, PA 15222 Phone: (412) 995-3281 Fax: (412) 995-3300 Email: mameyers@burnswhite.com NATIONSTAR MORTGAGE: Appeal of Reverse Mortgage Holders Nixed ------------------------------------------------------------- Charles Toutant of Law.com reports that the U.S. Court of Appeals for the Third Circuit has nixed a class action challenge to rates charged for force-placed insurance coverage by a reverse mortgage company. Under the so-called filed-rate doctrine, ratepayers may not bring suits to challenge insurance fees that have been registered with state insurance regulators, the appeals court said. Although the plaintiff-borrowers claim that an alleged kickback scheme involving their mortgage company violates the New Jersey Consumer Fraud Act, as well as the federal Truth in Lending Act and Racketeer Influenced and Corrupt Organizations Act, the ruling effectively shuts down present and future court challenges to insurance rates if they were filed with the appropriate regulatory agency. In so ruling, the appeals court upheld the lower court's dismissal of a suit lodged on behalf of holders of reverse mortgages with Nationstar Mortgage of Delaware, doing business as Champion Mortgage Co., who allowed their property insurance to lapse and were required to pay for coverage obtained by the mortgage company. The plaintiffs claimed that a 2009 Third Circuit decision in Alston v. Countrywide Financial distinguished challenges to a lender's allegedly wrongful conduct from challenges to the reasonableness of a rate that triggered the conduct. They contended that the court in Alston found that the filed-rate doctrine did not apply to the former. But Chief Circuit Judge D. Brooks Smith, writing for the panel, said the plaintiffs misread Alston. The filed-rate doctrine did not apply in that case, which concerned mortgage insurance, a type of policy that some mortgage borrowers with a low down payment are required to buy. The plaintiffs in Alston claimed that their mortgage company was getting a cut of the insurance premiums, and claimed they were entitled to statutory damages under the Real Estate Settlement Procedures Act. "That focus on statutory damages allowed the Alston plaintiffs to dodge the filed-rate doctrine," Smith wrote, joined by Circuit Judges Michael Chagares and David Porter. Alston holds that the filed-rate doctrine's reach can be circumscribed by legislation that gives individuals a private right of action, and the plaintiffs in that case weren't seeking damages tied to the amount of an alleged overcharge, Smith wrote. "In contrast, these borrowers do seek damages tied to the amount of an alleged overcharge: they seek damages caused by ‘unreasonably high force-placed insurance premiums.' . . . By extension, they functionally challenge the reasonableness of rates filed with state regulators," Smith wrote. "Today, we reiterate that the filed-rate doctrine brooks no distinction between, on one hand, challenging a filed rate as unreasonable and, on the other hand, challenging an overcharge fraudulently included in a filed rate," Smith said. There is no fraud exception to the filed-rate doctrine, which seeks to preserve the exclusive role of agencies in approving rates by keeping courts out of the rate-making process, Smith added. The plaintiffs contended on appeal that, even if the filed-rate doctrine derails their claims under RICO and state laws, their TILA claims should be spared from dismissal because that statute provides remedies that can be awarded without the need to assess the reasonableness of any filed rate. But they never made that argument in the District Court, so they forfeited the point before the Third Circuit, Smith wrote. The Third Circuit upheld a decision by Senior U.S. District Judge Anne Thompson, who found that the plaintiffs' claims were blocked by the filed-rate doctrine. The plaintiffs were represented by Bathgate, Wegener & Wolf in Lakewood and the Moskowitz Law Firm of Coral Gables, Florida. "The order gives us even more appreciation that we were able to obtain final approval in 31 separate, nationwide force placed class action settlements, making available almost $2.2 billion [] for 3.2 million homeowners, all across the country. We certainly knew this appeal would be an uphill battle, but we thought we owed it to our clients and all of the Nation[s]tar homeowners," Adam Moskowitz, of the Moskowitz Law Firm, lead counsel for the plaintiffs, said in an email. Nationstar was represented by Clyde & Co. Lawyers for Nationstar didn't respond to requests for comment. [GN] NATIONWIDE CREDIT: Third Cir. Appeal Filed in Dotson FDCPA Suit --------------------------------------------------------------- Plaintiff Luis Dotson filed an appeal from a court ruling in the lawsuit styled Luis Dotson v. Nationwide Credit Inc., et al., Case No. 2-18-cv-16779, in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the lawsuit arises from the Defendants' alleged violation of the Fair Debt Collection Practices Act. Nationwide Credit, Inc., is a collection agency with its principal place of address located in Atlanta, Georgia. Nationwide Credit regularly collects and attempts to collect defaulted consumer debts allegedly owed to others, which were incurred primarily for personal, family or household purposes. The appellate case is captioned as Luis Dotson v. Nationwide Credit Inc., et al., Case No. 19-3695, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant LUIS DOTSON, individually and on behalf of those similarly situated, is represented by: Jason R. D'Agnenica, Esq. Yongmoon Kim, Esq. Evan W. Lehrer, Esq. KIM LAW FIRM 411 Hackensack Avenue, Suite 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 E-mail: jdagnenica@kimlf.com ykim@kimlf.com elehrer@kimlf.com - and - Ronald I. LeVine, Esq. LAW OFFICE OF RONALD I. LEVINE, ESQ. 210 River Street, Suite 11 Hackensack, NJ 07601 Telephone: (201) 489-7900 Facsimile: (201) 489-1395 E-mail: ron@ronlevinelaw.com Defendant-Appellee NATIONWIDE CREDIT INC. is represented by: Aaron R. Easley, Esq. SESSIONS FISHMAN NATHAN & ISRAEL 3 Cross Creek Drive Flemington, NJ 08822 Telephone: 908-237-1660 E-mail: aeasley@sessions.legal NAVITELIA INDUSTRIES: Crena Sues Over Unsolicited Text & Email Ads ------------------------------------------------------------------ JUAN CRENA, Plaintiff v. NAVITELIA INDUSTRIES, INC., d/b/a OXYBREATH PRO, and d/b/a DRESIDE, Defendant, Case No. 1:20-cv-22744-FAM (S.D. Fla., July 2, 2020) is a class action complaint brought against Defendant for its alleged illegal practice of sending countless unsolicited, automated messages in violation of the Telephone Consumer Protection Act. According to the complaint, Plaintiff received numerous unsolicited text messages to his number ending in 0376 on or before April 15, 2020 from Defendant in an attempt to promote its products and without Plaintiff's authorization. Despite Plaintiff's un-subscription and request to stop sending him text messages, Defendant sent Plaintiff another text messages at 2:07 a.m. that woke Plaintiff up, and an email advertising its products on May 28, 2020. The complaint asserts that Defendant's relentless texts messages to Plaintiff's number without Plaintiff's authorization have invaded his privacy and were an intense interference with his life and business. Navitelia Industries, Inc. does business worldwide through its online stores at oxybreath.club and dreside.com. [BN] The Plaintiff is represented by: Eduardo A. Maura, Esq. Luis F. Quesada Machado, Esq. AYALA LAW, P.A. 1390 Brickell Ave., Ste 335 Miami, FL 33131 Tel: 305-570-2208 Email: eayala@ayalalawpa.com - and – Jorge Garcia-Menocal, Esq. GARCIA MENOCAL, PASTORI & IRIAS LLP 368 Minorca Ave Coral Gables, FL 33134 Tel: 305-400-9652 Email: jgm@gmilaw.com - and – Felipe Fulgencio, Esq. FULGENCIO LAW PLLC 105 S Edison Ave. Tampa, FL 33636 Tel: 813-463-0123 Email: felipe@fulgenciolaw.com NEW YORK: 2nd Cir. Appeal v. Green-Robinson Filed in Gulino Suit ---------------------------------------------------------------- Defendant Board of Education of the City School District of the City of New York filed an appeal from District Court's judgment entered on October 17, 2019, in the lawsuit styled GULINO, ET AL. v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Case No. 96-cv-8414, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the Plaintiffs, a group of African-American and Latino teachers in the New York City public school system, alleged that Defendant, the Board of Education of the City School District of the City of New York, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., by requiring Plaintiffs to pass certain racially discriminatory standardized tests in order to obtain a license to teach in New York City public schools. Judge Constance Baker Motley, to whom the case was originally assigned, certified the plaintiff class on July 13, 2001, pursuant to Federal Rule of Civil Procedure 23(b)(2). On December 5, 2012, the Court decertified the Plaintiff class to the extent it sought damages and individualized injunctive relief in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The class survived, however, to the extent Plaintiffs sought relief that may be awarded under Rule 23(b)(2), including a declaratory judgment regarding liability and classwide injunctive relief. The appellate case is captioned as In re: New York City Board of Education, Case No. 19-3926, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellee Sharae Green-Robinson is represented by: Joshua S. Sohn, Esq. STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038 Telephone: (212) 806-1245 Email: joshua.sohn@dlapiper.com Defendant-Appellant Board of Education of the City School District of the City of New York is represented by: Georgia Mary Pestana, Esq. INTERIM CORPORATION COUNSEL NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-2400 E-mail: gpestana@law.nyc.gov NEW YORK: Gyms Threaten Class Action Over Unfair Treatment ---------------------------------------------------------- WIVB reports that the state is keeping gyms closed and now the owners of these businesses are considering a class-action lawsuit against the governor. Erica Dix is one of the owners of Anytime Fitness in Jamestown. She says the governor is treating gyms unfairly compared to other businesses. "It's like he has his own personal agenda. Because some of the things he's saying that gym owners have to do no other businesses had to do, including Walmart and Wegmans and Home Depot that have been open this entire time. His excuse right now is those air conditioning units, all those stores have air conditioning and there hasn't been any issue whatsoever." The governor's office has not given any time table about when gyms can re-open. An administration spokesperson, Jack Sterne, released a statement on June 23: "New Yorkers sacrificed for months to bend the curve of this deadly virus, and thanks to our data-driven, phased reopening we are restarting our economy while maintaining this progress. While we can not comment on a lawsuit that has not even been filed yet, every decision we make is based on data and expert analysis, and we are continuing to study how and when indoor gyms and fitness centers can open safely. New Yorkers need to remember we are still living in a global pandemic--and as states around the country are showing, acting recklessly will only lead to a slower reopening for everyone while putting more of our neighbors in harms way." [GN] NEW YORK: Proposed Class Action Seeks Reopening of Gyms ------------------------------------------------------- CBSNewYork reports that gyms, fitness centers, health clubs, and yoga studios claim COVID-19 protocols are in place to keep both members and employees safe. Owners are fighting Albany for the right to immediately reopen. But would you feel safe going back to your indoor gym? CBS2's Jennifer McLogan talked to people on both sides of the issue on June 30. "Personally, I wouldn't have a problem going to a gym," one Long Islander said. Across the area, gym owners want to hear that and many are signing on to a class action lawsuit demanding they be included in Phase 4 of New York's reopening plan. "We've spent tens of thousands of dollars trying to fortify the club and be COVID compliant," said Dennison Silvio of Sportset Health & Fitness in Rockville Centre. Sportset is among those with a comprehensive safety plan, including advanced computerized temperature screenings, ultraviolet sterilization, vaporized heat cleaning, and it removed most of the treadmills and stair climbers. "We have 12 pieces of cardio equipment up there six feet apart," Silvio said. "What we are simply asking is the state, the governor, work with the local counties, local townships, to allow these businesses to reopen," Hempstead Town Supervisor Don Clavin said. Medical experts worry about the indoor spread of coronavirus during sweating, even with masks. "If you're on a treadmill, an elliptical, a stationary bicycle or breathing hard, you're expelling many more droplets, aerosols that might be virus laden," CBS2's Dr. Max Gomez said. "We all know what we're talking about with the big box gyms. Our facility is strictly one-on-one personal training," said George Mifsud of G2 Training in Syosset. Personal trainers say they should be deemed essential. They can train outdoors, too. "Stress and anxiety and depression are at an all-time high right now," said G2's Gregoria Myer. Not everyone shares the same enthusiasm to see gyms reopen soon. "So much breathing going on, I wouldn't go to a gym right now," one person said. "I think it would be too risky," another added. And there's one more thing to worry about. Legal experts say if your gym remains closed, you should be exempt from paying dues. However, if it reopens and strictly follows local and state guidelines, you are most probably bound by your contract. For now, many fitness centers are allowing members to pause or freeze their memberships. A spokesman for Gov. Andrew Cuomo said government is "continuing to study how and when indoor gyms and fitness centers can open safely. New Yorkers need to remember we are still in a global pandemic." [GN] NINTENDO: President Apologizes for Joy-Con Drift Issue Amid Suit ---------------------------------------------------------------- Austin Wood, writing for GamesRadar+, reports that Nintendo president Shuntaro Furukawa apologized for the ongoing issues affecting Nintendo Switch Joy-Con controllers, the most notable being those infamous drifting analogue sticks, in a recent financial Q&A. "Regarding the Joy-Con, we apologize for any trouble caused to our customers," Furukawa said (translated by Kotaku) "We are continuing to aim to improve our products, but as the Joy-Con is the subject of a class-action lawsuit in the United States and this is still a pending issue, we would like to refrain from responding about any specific actions." Furukawa never calls out Joy-Con drift by name, but there's little doubt as to what "trouble" he's referring to. Especially since he highlights the class action lawsuit regarding Joy-Con drift which was filed against Nintendo in the US in July 2019, and later expanded to include Nintendo Switch Lite issues. Joy-Con drift is still very much a problem, and this is perhaps the first time a Nintendo executive has officially apologized for it. Joy-Con drift is such a ubiquitous problem that Nintendo updated its Switch troubleshooting forum specifically to call it out. There are a few home remedies for how to fix Joy-Con drift, but for many users, recalibrating or resetting a controller merely delays their inevitable RMA. And even after sending their controller in for repairs, drift often returns within weeks or months. Newer generations of Joy-Cons have yet to do away with the drift issue, but it's certainly not too late for Nintendo to finally stamp it out. [GN] NORTH CAROLINA: 11 Butner FCC Inmates Withdraw Class Action ----------------------------------------------------------- STL News reports that eleven inmates housed at the Federal Correctional Complex in Butner, North Carolina ("FCC Butner") voluntarily dismissed their lawsuit against Federal Bureau of Prisons ("BOP") officials seeking release from prison as a result of the threat of the COVID-19 pandemic. According to court documents, the federal inmates, who are represented by several advocacy groups, filed a petition for writ of habeas corpus, temporary restraining order and preliminary injunction on behalf of themselves and a purported class of current and future medically vulnerable inmates. The inmates alleged violations of their Eighth Amendment rights related to FCC Butner's response to the COVID-19 crisis, and sought relief including mass release or transfer of inmates from FCC Butner in order to facilitate social distancing. BOP officials filed substantial responses detailing the significant steps BOP and FCC Butner have taken to manage the crisis at FCC Butner. On June 11, 2020, United States District Court Judge Louise W. Flanagan denied the inmates' motion for a temporary restraining order and preliminary injunction, finding that the BOP officials made reasonable efforts toward the goals of preventing unnecessary illness and death and slowing the spread of the virus, that the claims were not appropriate under a habeas petition, and even if they were, the inmates failed to show a likelihood of success on the merits or that equity and public interests favor a temporary restraining order. On Monday, the inmates filed a stipulation of dismissal essentially withdrawing their remaining claims. Robert J. Higdon, Jr., U.S. Attorney for the Eastern District of North Carolina commented: "Effectively managing prisons is a complex and difficult job on any day, but especially so in the midst of a global pandemic which affects so many people both inside and outside of the prison system. We are gratified that the court, in its ruling denying the inmates' request for a temporary restraining order and preliminary injunction, recognized the efforts that officials at FCC Butner have made to minimize the risk of virus infection to the prisoners while doing their usual excellent job at maintaining order and ensuring the safety of the public in operating these critical facilities. I fully support the professional way in which that the FCC Butner officials continue to maintain the safety and security of the individuals housed within their institutions and the responsible manner in which they are managing the COVID-19 crisis." Special Assistant U.S. Attorneys Michael Bredenberg, Genna D. Petre, Christina Kelley, Mallory Brooks Storus, and Assistant U.S. Attorney Joshua Rogers defended the case on behalf of the BOP officials. [GN] NUTANIX INC: Russell Sues Over Unpaid Wages, Denied Breaks ---------------------------------------------------------- Craig Russell, individually and on behalf of all others similarly situated, Plaintiff, v. Nutanix, Inc. and Does 1 through 20, inclusive, Defendants, Case No. 20CV366943 (Cal. Super., June 8, 2020), seeks unpaid wages and interest thereon for failure to pay for all hours worked and minimum wage rate, failure to authorize or permit required meal periods, failure to authorize or permit required rest periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, unfair competition, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest pursuant to California Labor Code and applicable Industrial Welfare Commission Wage Orders. Nutanix is a cloud-computing company that sells software, cloud services and software-defined storage where Russell was employed as a Commercial Account Manager. [BN] Plaintiff is represented by: Jessica L. Campbell, Esq. Kashif Haque, Esq. Samuel A. Wong, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 2618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Email: jcampbell@aegislawfirm.com swong@aegislawfirm.com khaque@aegislawfirm.com - and - Jonathan M. Lebe, Esq. Zachary Gershman, Esq. LEBE LAW, APLC 777 S. Alameda Street, Second Floor Los Angeles, CA 90021 Telephone: (213) 358-7046 Email: jon@lebelaw.com zachary@lebelaw.com NVIDIA: Seeks Dismissal of Class Action Over Crypto GPU Sales ------------------------------------------------------------- Samuel Haig, writing for Coin Telegraph, reports that major manufacturer of graphics processing units (GPUs) and computing hardware Nvidia has filed a motion to dismiss a proposed class-action lawsuit alleging that the firm misrepresented more than $1 billion in sales during 2017 and 2018. In addition to its popular 'GeForce' and 'GTX' products--favored by both gamers and crypto miners--Nvidia launched a GPU specifically designed for virtual currency mining dubbed 'Crypto SKU' in May 2017. However, Nvidia reported only its Crypto SKU sales as having been made to cryptocurrency miners, and investors claim this misrepresented $1.126 billion in other sales as having been driven by demand from the gaming market. In the motion to dismiss, Nvidia asserts that statements issued by its executives made it clear to investors at the time that it was impossible to know the exact purpose for which customers were purchasing the GPUs. Nvidia rejects amended complaint from investors Nvidia cites an August 16, 2018 earnings call in which the firm's founder and chief executive Jensen Huang stated "whether they buy it for mining or do they buy it for gaming, it's kind of hard to say" in regards to the firm's GeForce GPU sales. As such, Nvidia claims that its executives did not lie when they described crypto sales as representing a "small" portion of its revenue, as alleged in the amended lawsuit. The firm also emphasizes that the original complaint was dismissed due to the allegations relying "entirely" on a report produced by Prysm Group--with the court rejecting the suit on the basis of the plaintiffs' failure to plead in favor of the "assumptions and analysis" laid out in the Prysm report. Amended complaint relies on flawed data Similarly, Nvidia asserts that the amended complaint fails by relying on the findings from a 2018 report into the impact of crypto mining on the firm's sales that was authored by consulting firm Jon Peddie Research: "The Jon Peddie estimate rests on a host of unidentified and unexplained assumptions and inputs, which the [first amended complaint] does not allege that Prysm investigated at all. This renders Prysm's analysis even less reliable than before." The firm also claims that the complaint selectively quotes its executives to mischaracterize states made concerning its GPU sales, and fails to address shortcoming previously identified by the judge. [GN] OAKLAND, MI: Measures to Improve Hygiene & Safety at Jail Ordered ----------------------------------------------------------------- In the case, JAMAAL CAMERON, RICHARD BRIGGS, RAJ LEE, MICHAEL CAMERON, and MATTHEW SAUNDERS, individually and on behalf of all others similarly situated, Plaintiffs, v. MICHAEL BOUCHARD, CURTIS D. CHILDS, and OAKLAND COUNTY, Defendants, Civil Case No. 20-10949 (E.D. Mich.), Judge Linda V. Parker of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiffs' request for a temporary restraining order requiring the Defendants to utilize the measures to improve hygiene and safety at the Oakland County Jail. The Plaintiffs filed a putative class action complaint, raising grave concerns about the conditions in the Oakland County Jail in the face of the novel coronavirus (COVID-19) pandemic. The Plaintiffs are Oakland County Jail pretrial or convicted detainees. They seek to represent a class of all current and future Oakland County Jail detainees, as well as the following subclasses: a. The First Subclass (Pre-trial Subclass) is defined as All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail. b. The Second Subclass (Post-conviction Subclass) is defined as All current and future persons detained at the Oakland County Jail during the course of the COVID-19 pandemic who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted. c. The Third Subclass (Medically-Vulnerable Subclass) is defined as: All members of the Jail class who are also over the age of fifty or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19. The Plaintiffs also filed an emergency motion for TRO in which they ask the Court to order (a) the release of members of the Medically-Vulnerable Subclass pending briefing and argument, and (b) the undertaking of certain measures to improve hygiene and safety at the Jail. Having reviewed the Plaintiffs' Complaint and pending motion, Judge Parker is granting at this time the Plaintiffs' request for a TRO requiring the Defendants to utilize the measures set forth below to improve hygiene and safety at the Jail. The Judge, however, is without sufficient information to rule on the Plaintiffs' request to release all members of the Medically-Vulnerable Subclass and is scheduling a hearing to address that request. The Judge has considered the following factors in deciding whether to issue the TRO: (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. For purposes of her decision, the Judge is accepting the allegations in the Plaintiffs' Complaint and its attachments as true without briefing or evidentiary submissions by the Defendants. The Judge is not making a finding of wrongdoing on the part of any Defendant and no Defendant is deemed to have waived any defenses to the action. The Judge is acting without notice to the Defendants because she finds that any delay will increase the risk of serious physical harm to the Plaintiffs. The Judge finds that the Plaintiffs are likely to succeed on the merits of their claim alleging that jail conditions violate their Eighth and Fourteenth Amendment rights. The Plaintiffs' allegations reflect that Oakland County has not imposed even the most basic safety measures recommended by health experts, the Centers for Disease Control and Prevention, and Michigan's Governor to reduce the spread of COVID-19 in detention facilities. She cannot be disputed that COVID-19 poses a serious health risk to the Plaintiffs and the putative class. The Plaintiffs also are likely to suffer irreparable harm absent an injunction, as they face a heightened risk of contracting the life-threatening virus simply as incarcerated individuals and even more so without the imposition of these cautionary measures. Entering an injunction requiring the Defendants to adopt the safety precautions set forth below poses no harm to them other than potentially increased costs and energy, which are insufficient to justify a denial of the Plaintiffs' motion. It is always in the public interest to prevent the violation of a party's constitutional rights. Accordingly, the Court ordered that the Defendants will as soon as practicable undertake, among other things, these minimum measures: -- Ensure that each incarcerated person has free access to liquid soap, paper towel, disinfectant, 60% alcohol, showers and clean laundry; -- Ensure that all Jail staff wear personal protective equipment; -- Establish protocol through which an incarcerated person may self-report symptoms of COVID-19 infection and to evaluate those symptoms, including temperature monitoring; -- Conduct immediate testing for anyone displaying known symptoms of COVID-19; -- Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible, so that social distancing can be accomplished; -- Ensure that individuals identified as having COVID-19, with symptoms of COVID-19, or having been exposed to COVID-19 receive adequate medical care and are properly quarantined; -- Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection; -- Train all staff regarding measures to identify inmates with COVID-19, measures to reduce transmission, and the Jail's policies and procedures during the crisis (including those measures contained in the Order); A full-text copy of the District Court's April 17, 2020 Amended Opinion & Order is available at https://is.gd/lIe36L from Leagle.com. OCCIDENTAL COLLEGE: Faces Lindner Suit in District of New Jersey ---------------------------------------------------------------- A class action lawsuit has been filed against OCCIDENTAL COLLEGE. The case is styled as Steven J. Lindner, on behalf of himself and all others similarly situated v. OCCIDENTAL COLLEGE, Case No. 2:20-cv-08290 (D.N.J., July 6, 2020). The nature of suit is stated as Other Contract for Contract Dispute. Occidental College is a private liberal arts college in Los Angeles, California. Founded in as a coeducational college in 1887 by clergy and members of the Presbyterian Church, it became non-sectarian in 1910. Occidental College is one of the oldest liberal arts colleges on the West Coast of the United States.[BN] The Plaintiff is represented by: Yitzchak Kopel, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Email: ykopel@bursor.com OFFICE DEPOT: Court Denies Stein's Class Certification Bid ---------------------------------------------------------- In the class action lawsuit styled as RON STEIN AND ALL OTHERS SIMILARLY SITUATED v. OFFICE DEPOT, INC., Case No. 1:19-cv-01100-LY (W.D. Tex.), the Hon. Judge Susan Hightower entered an order: 1. denying, without prejudice, the Plaintiff's opposed motion for conditional certification and notice to the putative class members; and 2. giving Mr. Stein until August 25, 2020, to file an amended motion for conditional certification of collective action and for notice to putative class members addressing the deficiencies. The Court held that Mr. Stein has failed to satisfy the Lusardi analysis by demonstrating a reasonable basis for believing that a class of "similarly situated" persons exists. Mr. Stein does not explain how the goals, work guidelines, or work schedules for the class of ISR-Enterprise employees required them to work more than 40 hours per week without compensation, or how management encouraged them to work uncompensated overtime. His allegations are simply too vague to reach a conclusion that the proposed class members performed the same basic tasks as part of their employment and were subject to the same pay decisions, policies, or practices. Without more "identifiable facts," the Court cannot conclude that the proposed class members are similarly situated, such that hearing the cases together would promote judicial efficiency. Office Depot is an American office supply retailing company headquartered in Boca Raton, Florida, United States. The company has combined annual sales of approximately $11 billion, and employs about 38,000 associates with businesses in the United States.[CC] OHIO: Martin Appeals Ruling in Civil Rights Suit to Sixth Circuit ----------------------------------------------------------------- Plaintiff Robert Martin filed an appeal from a court ruling issued in his lawsuit styled Robert Martin v. Jane Doe, et al., Case No. 3:19-cv-02188, in the U.S. District Court for the Northern District of Ohio at Toledo. As previously reported in the Class Action Reporter, the nature of suit is stated as Prisoner: Civil Rights. Lyneal Wainwright is the Deputy Warden at Ohio Department of Rehabilitation and Correction. The appellate case is captioned as Robert Martin v. Jane Doe, et al., Case No. 20-3049, in the United States Court of Appeals for the Sixth Circuit. Plaintiff-Appellant ROBERT MARTIN, on behalf of others Similarly situated, who is currently incarcerated at the Ohio Department of Rehabilitation and Correction, in Orient, Ohio, appears pro se.[BN] OHIO: S.C. Reverses Appeals Ct. Ruling in Medicaid Recouping Suit ----------------------------------------------------------------- Dan Trevas, of the Ohio Supreme Court Office of Public Information, in an article on The Highland Press, titled "class action improper to challenge recouping Medicaid money from personal injury lawsuits", wrote Ohio law now requires a Medicaid recipient to use an administrative appeals process when claiming the state recouped too much of the money a recipient received from a third-party wrongdoer, the Ohio Supreme Court ruled this week. A Supreme Court majority reversed an Eighth District Court of Appeals decision that allowed the certification of a class-action lawsuit by injured Medicaid recipients, who maintained the state's Medicaid recovery law is unconstitutional. Writing for the Court majority, Justice Judith L. French stated Ohio lawmakers established an administrative appeal process as the "sole remedy" in disputes with the state regarding Medicaid recovery from civil lawsuits. The Court's decision directed the Cuyahoga County Common Pleas Court to determine if some of the potential members of the class-action lawsuit could still maintain class-action status. Chief Justice Maureen O'Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined the opinion. Justice Michael P. Donnelly concurred in judgment only. Michael A. Pivonka and Lisa Rijos were the named plaintiffs in a class-action lawsuit filed to declare that a Medicaid reimbursement law was unconstitutional. Medicaid was created by federal law in 1965 and is jointly funded by state and federal governments to cover the medical costs of low-income and disabled individuals. Pivonka was on Medicaid when he was injured by someone, and Medicaid paid for Pivonka's medical bills. In 2012, Pivonka reached a settlement with the wrongdoer who injured him. Citing the version of R.C. 5101.58 in effect at the time, the Ohio Department of Job and Family Services sent a demand letter to Pivonka notifying him that under the "subrogation statute," the state could recoup the amount of Medicaid funds it paid for his injuries. The department collected $7,108 from his settlement with the wrongdoer. Rijos was on Medicaid when someone injured her. A jury awarded her damages in 2013 from the accident. The department collected $703 of the verdict award paid by the wrongdoer. In 2013, Pivonka and Rijos sought to certify a class comprised of anyone who, under the subrogation statute, had to pay back Medicaid funds to the department from April 6, 2007, to the present without the requirement of a court order. The department disputed the formation of the class, arguing R.C. 5101.58 was constitutional. The department also maintained the updated version of the law after it was amended in 2015 required those who disputed the repayment to use an administrative procedure. The trial court rejected the state's arguments and ruled that some of the arguments could be raised after the class-action lawsuit commenced. The state appealed the decision to the Eighth District, which affirmed the trial court's decision. The state appealed to the Supreme Court, which agreed to hear the case. This opinion explains how the Medicaid law was adjusted after U.S. Supreme Court decisions regarding Medicaid reimbursement laws passed by other states. Medicaid requires each state to adopt a law giving the state the right to recover certain costs paid by Medicaid that should have been paid by other sources. When a wrongdoer injures a Medicaid recipient, the wrongdoer may be required to pay the medical costs for the injured recipients. When the costs are not paid by the wrongdoer, Medicaid pays the medical bills. Under the federal requirement, if the Medicaid recipient files a personal lawsuit against the wrongdoer, a portion of any settlement or award received by the recipient can be tapped by the state to recover the Medicaid funds used to pay the medical costs. Other states, including Arkansas, had Medicaid subrogation statutes similar to Ohio's. In 2006, the U.S. Supreme Court invalidated a portion of the Arkansas subrogation law. Although no court declared Ohio's R.C. 5101.58 invalid, state lawmakers amended the law in 2007 to avoid having the same issue as Arkansas. In 2013, the U.S. Supreme Court struck down a portion of North Carolina's Medicaid subrogation law, which also was similar to the revised Ohio law. Ohio changed the law in 2013, and again in 2015. The 2015 version contained provisions of the subrogation law that gave the state the automatic right to recover medical costs from personal-injury lawsuits without getting a court order first. The law presumed the state was entitled to half the amount of any award after attorney fees, legal expenses and other litigation costs were paid. The 2015 version added a provision that allowed the Medicaid recipient to challenge the presumption through an administrative proceeding operated by the department. If the recipient disputed the department's final decision about how much it could recover, the person could appeal the department's decision to the common pleas court. "The administrative process is, by its own terms, the 'sole remedy' available to those individuals," the opinion stated. Pivonka and Rijos argued they and the class members should not be required to follow the administrative procedure because the process allowing the state to recoup the money without a court order is unconstitutional and the department was not entitled to recoup any money. The Court stated the class members cannot circumvent the administrative process by raising a constitutional challenge in common pleas court. Rather, the constitutional challenge can be raised after the recipient goes through the department's appeals process. Then, the appeal reaches the common pleas court, the opinion concluded. Because part of the changing Medicaid law did not apply to those who repaid money between April 6 and Sept. 28, 2007, the Supreme Court directed the trial court to determine whether those recipients could maintain an action in the common pleas court. [GN] PACIFIC PREMIER: Fahmia Seeks to Recover Agent Fees --------------------------------------------------- Fahmia, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Pacific Premier Bancorp, Inc., Pacific Premier Bank and Does 1 through 100, inclusive,, Case No. 20-cv-00965 (C.D. Cal., May 26, 2020), seeks compensation for processing PPP loans, for services rendered on behalf of recipients of loans under the CARES Act, for breach of contract, unjust enrichment and for violation of the California Business & Professions Code. On March 25, 2020, in response to the economic damage caused by the COVID-19 crisis, the United States Senate passed the Coronavirus Aid, Relief and Economic Security (CARES) Act. This legislation included $377 billion in federally-funded loans to small businesses and a $500 billion governmental lending program, administered by the United States Department of Treasury to provide support to entrepreneurs and small businesses. Part of the CARES Act is the "Paycheck Protection Program" (PPP) that provides small businesses with loans to provide small businesses with eight weeks of cash-flow assistance to fund payrolls. Said loans are administered by Treasury, backed by the Federal Government, but funded by private lenders, including the Defendants. Fahmia, Inc. is an accounting practice from Torrance, California. It sought to obtain PPP loans through the Defendants on behalf of its clients and expected to be paid agent fees from the Lenders upon funding of its clients' loans under the PPP. However, it was denied these fees after the loans were released, says the complaint. [BN] The Plaintiff is represented by: Richard D. McCune, Esq. Michele M. Vercoski, Esq. Tuan Q. Nguyen, Esq. MCCUNE WRIGHT AREVALO, LLP 18565 Jamboree Road, Ste. 550 Irvine, CA 92612 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 Email: rdm@mccunewright.com mmv@mccunewright.com tqn@mccunewright.com PAN-O-GOLD BAKING: Settlement in Hoverson Suit Gets Final Approval ------------------------------------------------------------------ In the case, MARK HOVERSON, individually and on behalf of all those similarly situated, Plaintiff, v. PAN-O-GOLD BAKING COMPANY, Defendant, Case No. 18-cv-817 (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin granted the Plaintiff's Motion for Final Approval of Class Action Settlement. The Court finds that the Settlement Agreement is fair, reasonable, and adequate. The Court directed the consummation of its terms and provisions. The Settlement Agreement is binding on the Defendant and the Named Plaintiff, as well as all the class members who have not filed timely exclusions. The Class Counsel is awarded costs and attorneys' fees in the total amount of $144,150.63. The enhancement payment of $3,000 to the Named Plaintiff is approved. The Lawsuit and the Plaintiff's Complaint are dismissed on the merits with prejudice, and barring and permanently enjoining, to the fullest extent of applicable law, the Named Plaintiff and all the class members (aside from those filing timely and valid requests for exclusion) from pursuing any claims that were released against the Defendant. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/r3tjfH from Leagle.com. PARADIES SHOPS: Bailey Seeks to Certify Employees FLSA Class ------------------------------------------------------------ In the class action lawsuit styled as KEMONI BAILEY, on behalf of himself and others similarly situated, v. THE PARADIES SHOPS, LLC, Case No. 2:20-cv-02610-ALM-EPD (S.D. Ohio), the Plaintiff asks the Court for an order: 1. conditionally certifying the proposed Fair Labor Standards Act collective defined as: "all current and former hourly, non-exempt employees, including hourly managers, of Defendant who were scheduled to work 40 or more hours in one or more workweeks during the three years preceding the filing of this Motion and continuing through the final disposition of this case"; 2. implementing the Plaintiff's proposed procedure, including a 90-day opt-in period, whereby Court-approved notice of FLSA claims is sent (via U.S. Mail and e-mail) to the members of the class as requested; and 3. requiring the Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the full names, dates of employment, locations worked, job titles, last known home addresses, phone numbers, and personal email addresses of all potential opt-in plaintiffs who worked for Defendant at any time from three years preceding the filing of this Motion through the present. This case involves the Defendant's meal deduction policy. The Plaintiff alleges that the Defendant deducts thirty minutes from its hourly, non-exempt employees’ daily hours worked for meal breaks that are either never taken or that are interrupted with work duties. The Plaintiff also alleges that this policy deprives the Defendant's hourly, non-exempt employees of their hard-earned overtime pay. Paradies Shops offers retail and concessionaire services. The Company operates stores and establishments located in airports and hotels offering from traditional newsstand to specialized gift shops.[CC] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite No. 126 Columbus, OH 43220 Telephone: 614 949-1181 Facsimile: 614 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Shannon M. Draher, Esq. Hans A. Nilges, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: sdraher@ohlaborlaw.com hans@ohlaborlaw.com PARAGON COIN: Faces Securities Class Action Over 2017 ICO --------------------------------------------------------- Debra Borchardt, writing for Green Market Report, reports that Paragon Coin had big plans to become a cannabis bitcoin company and in a 2017 ICO (initial coin offering) the company raised $70 million. Fast forward to today and the company is facing a class action suit claiming that Paragon violated federal securities laws. United States District Court Judge Jeffrey White granted the plaintiffs' motion-in-part on federal claims. Yet, he also denied applications for state-level allegations that were filed by several non-California-based investors. Paragon Coin originally faced a lawsuit filed against the brand and its owners Jessica VerSteeg and her husband Egor Lavrov for allegedly violating Securities law with regards to the Paragon Initial Coin Offering (ICO). The lawsuit stated that approximately between August 15, 2017, through October 16, 2017, the defendants raised at least $70 million in digital cryptocurrencies by offering and selling unregistered securities in direct violation of the Securities Act. It also stated that on November 2, 2017, Paragon ICO investors received an email updating them that during the Paragon ICO "crowd sale" they had collected 533 BTC and 8,092 ETH— worth approximately $7.3 million and $10.2 million, respectively, as of January 12, 2018. Unfortunately, these amounts did not include any of the cryptocurrencies they collected during the Paragon ICO "presale." Capital For Real Estate At the time, the plaintiff was upset that some of the money raised was being used to acquire real estate even though it was stated that it would be a goal. In Paragon's white paper it said, "[t]he lion's share of the token crowdsale [sic] proceeds will be spent on real-estate acquisition." The plaintiff expected that its investment would increase in value and now wants to be repaid what was invested. So, how much did Davy invest? Plaintiff invested in the Paragon ICO on September 21, 2017, September 23, 2017, September 28, 2017, September 30, 2017, October 3, 2017, and October 15, 2017, by transmitting 0.04095 BTC, 0.03975 BTC, 0.57855 ETH, 0.0231 BTC, 0.03495 BTC, and 0.04579484 BTC, respectively, to Defendants. Paragon Settles in 2018 Paragon did settle in 2018 when the SEC said that Paragon raised approximately $12 million worth of digital assets to develop and implement its business plan to add blockchain technology to the cannabis industry and work toward legalization of cannabis. The SEC statement wrote that Paragon did not register its ICO pursuant to the federal securities laws, nor did it qualify for an exemption to the registration requirements. Paragon's Headaches Continue Even though Paragon settled with the SEC, the investors are still upset as they apparently haven't received anything. However, Judge White notes that the lawsuit alludes to the company selling the tokens over the Internet. The judge added, "Plaintiffs concede there may be class members in all 50 states and concede that laws governing the state law claims at issue differ among jurisdictions in such a way that a true conflict exists." Cannabis Law Report said that, "While the suit argues that ParagonCoin claimed to have issued PRG from its headquarters in California, Judge White noted that "the ICO giving rise to plaintiffs' claims and purchases of PRG tokens were conducted over the internet." "Plaintiffs concede there may be class members in all 50 states and concede that laws governing the state law claim at issue differ among jurisdictions in such a way that a true conflict exists," the judge added. [GN] PELEPHONE COMMUNICATIONS: Request for Class Action Dismissal OK'd ----------------------------------------------------------------- On June 28, 2020, Bezeq The Israel Telecommunication Corporation Ltd. ("Bezeq"), a 26.34% subsidiary of B Communications Ltd. (the "Company"), reported to the Israel Securities Authority (the "ISA") and Tel Aviv Stock Exchange (the "TASE") concerning the final dismissal by the Israeli Supreme Court of a request for a class action suit against Bezeq's subsidiary, Pelephone Communications Ltd., on June 24, 2020. [GN] PERRIGO CO: Appeals Decision in Roofer's Suit --------------------------------------------- Defendants Judy Brown, Joseph C. Papa and Perrigo Company PLC filed an appeal from a court ruling in the lawsuit titled ROOFER'S PENSION FUND, et al. v. PAPA, et al., Case No. 2-16-cv-02805, in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter on June 2, 2020, Perrigo Company plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 5, 2020, for the quarterly period ended March 28, 2020, that the U.S. Court of Appeals for the Third Circuit has denied the Defendants' petition for leave to appeal challenging the certification of the tender offer class in the consolidated securities class action suit entitled, Roofers' Pension Fund v. Papa, et al. On May 18, 2016, a shareholder filed a securities case against the Company and its former CEO, Joseph Papa, in the U.S. District Court for the District of New Jersey (Roofers' Pension Fund v. Papa, et al.). The plaintiff purported to represent a class of shareholders for the period from April 21, 2015, through May 11, 2016, inclusive. The original complaint alleged violations of Securities Exchange Act Sections 10(b) (and Rule 10b) and 14(e) against both the Defendants and 20(a) control person liability against Mr. Papa. In general, the allegations concerned the actions taken by the Company and the former executive to defend against the unsolicited takeover bid by Mylan in the period from April 21, 2015, through November 13, 2015. The Plaintiff also alleged that the Defendants provided inadequate disclosure concerning alleged integration problems related to the Omega acquisition in the period from April 21, 2015, through May 11, 2016. The appellate case is captioned as Perrigo Institutional Investor, et al. v. Joseph Papa, et al., Case No. 19-8047, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Respondent PERRIGO INSTITUTIONAL INVESTOR GROUP, Individually and on behalf of All Others Similarly Situated, is represented by: Jonathan D. Lindenfeld, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: 973-597-2500 E-mail: jlindenfeld@pomlaw.com Plaintiffs-Respondents PERRIGO INSTITUTIONAL INVESTOR GROUP, Individually and on behalf of All Others Similarly Situated, and ROOFERS PENSION FUND, On behalf of itself and all others similarly situated, are represented by: Michael T.G. Long, Esq. SEDGWICK 101 Eisenhower Parkway, Suite 300 Roseland, NJ 07068 Telephone: 973-597-2500 E-mail: mlong@lowenstein.com Plaintiff-Respondent ROOFERS PENSION FUND, On behalf of itself and all others similarly situated, is represented by: Michael B. Himmel, I, Esq. LOWENSTEIN SANDLER LLP One Lowenstein Drive Roseland, NJ 07068 Telephone: 973-597-6172 E-mail: mhimmel@lowenstein.com - and - Daniel S. Sommers, Esq. COHEN, MILSTEIN, SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: 202-408-4600 E-mail: dsommers@cohenmilstein.com Defendant-Petitioner JOSEPH C. PAPA is represented by: Goutam U. Jois, Esq. Marshall R. King, Esq. GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue, 47th Floor New York, NY 10166 Telephone: 212-351-4000 E-mail: mking@gibsondunn.com Defendant-Petitioner PERRIGO CO PLC is represented by: Alan S. Naar, Esq. GREENBAUM, ROWE, SMITH & DAVIS, LLP P.O. Box 5600 Metro Corporate Campus One, Suite 4 Woodbridge, NJ 07095 Telephone: 732-476-2530 E-mail: anaar@greenbaumlaw.com Defendant-Petitioner JUDY BROWN is represented by: Brian T. Frawley, Esq. SULLIVAN & CROMWELL 125 Broad Street New York, NY 10004 Telephone: 212-558-4000 E-mail: frawleyb@sullcrom.com Defendants-Respondents LAURIE BRLAS GARY M. COHEN, JACQUALYN A. FOUSE, MICHAEL R. JANDERNOA, GERALD K. KUNKLE, JR., HERMAN MORRIS, JR., and DONAL O'CONNOR are represented by: Jane J. Felton, Esq. Jonathan W. Wolfe, Esq. SKOLOFF & WOLFE, P.C. 293 Eisenhower Pkwy. Livingston, NJ 07039 Telephone: (973) 992-0900 E-mail: jfelton@skoloffwolfe.com Defendant-Respondent MARC COUCKE is represented by: Kenneth A. Brady, Esq. WILMERHALE 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: 212-295-6261 E-mail: kenneth.brady@wilmerhale.com Respondent UNITED STATES OF AMERICA is represented by: Nathan Brenner, Esq. UNITED STATES DEPARTMENT OF JUSTICE 1401 H Street, N.W., Suite 3700 Washington, DC 20530 Telephone: 202-509-2649 - and - Elizabeth Gudis, Esq. UNITED STATES DEPARTMENT OF JUSTICE 601 D Street, N.W. Patrick Henry Building Washington, DC 20530 Telephone: 202-598-8808 PILGRIMS PRIDE: UFCW Sues Over Decline in Market Value of Stocks ---------------------------------------------------------------- United Food and Commercial Workers International Union Local 464A, the Trustees of Welfare and Pension Funds of Local 464A – Pension Fund, the Trustees of Retirement Plan for Officers, Business Representatives and Office Employees of Local 464A, the Trustees of Local 464A Finast Full Time Employees Pension Plan, the Trustees of Local 464A Welfare and Pension Building Inc., and the Trustees of New York-New Jersey Amalgamated Pension Plan for ACME Employees, Individually and on Behalf of All Others Similarly Situated v. PILGRIM'S PRIDE CORPORATION, JAYSON J. PENN, WILLIAM W. LOVETTE, and FABIO SANDRI, Case No. 1:20-cv-01966 (D. Colo., July 6, 2020), is brought on behalf of a class of all persons and entities, who purchased or otherwise acquired Pilgrim's Pride common stock between February 9, 2017, and June 3, 2020, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934 for damages suffered due to the Defendants' wrongful acts and omissions, and the significant decline in the market value of the Company's common stock. Throughout the Class Period, in annual reports and earnings calls, the Defendants touted the Company's competitive strengths, advantages, and market positioning, which the Defendants claimed had been achieved through legitimate business strategies, such as a broad product portfolio and disciplined capital allocation. On June 3, 2020, however, investors learned the truth about the source of the Company's competitive advantages when the United States Department of Justice announced criminal charges (the "Indictment") against two Pilgrim's Pride high level executives (including its current Chief Executive Officer) and two other executives in the chicken industry, alleging that they and other unnamed co-conspirators had participated in an illegal antitrust conspiracy to fix prices and rig bids from at least as early as 2012 and continuing through at least early 2017. On this news, the price of Pilgrim's Pride common stock declined $2.58 per share, or approximately 12.4%, from a close of $20.87 per share on June 2, 2020, to close at $18.29 per share on June 3, 2020. According to the complaint, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts, about the Company's business and operations. Specifically, the Defendants misrepresented and/or failed to disclose that: (1) the Company and its executives had participated in an illegal antitrust conspiracy to fix prices and rig bids from at least as early as 2012 and continuing through at least early 2017; (2) the Company received competitive advantages, which persisted during the Class Period, from its anticompetitive conduct; and (3) as a result, the Defendants' statements about the Company's business, operations, and prospects lacked a reasonable basis. As a result of the Defendants' wrongful acts and omissions, and the significant decline in the market value of the Company's common stock, the Plaintiffs and other members of the Class have suffered significant damages, says the complaint. The Plaintiffs purchased Pilgrim's Pride common stock at artificially inflated prices during the Class Period. Pilgrim's Pride, a Delaware corporation headquartered in Greeley, Colorado, is one of the largest chicken producers in the United States.[BN] The Plaintiffs are represented by: Joel S. Neckers, Esq. Nora Ali, Esq. WHEELER TRIGG O'DONNELL LLP 370 17th Street, Suite 4500 Denver, CO 80202 Phone: (303) 244-1966 Facsimile: (303) 244-1879 Email: neckers@wtotrial.com ali@wtotrial.com - and - Naumon A. Amjed, Esq. Darren J. Check, Esq. Ryan T. Degnan, Esq. Karissa J. Sauder KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Facsimile: (610) 667-7056 Email: namjed@ktmc.com dcheck@ktmc.com rdegnan@ktmc.com ksauder@ktmc.com PITTSBURGH, PA: Faces Class Suit Over Police Response to Protests ----------------------------------------------------------------- Max Mitchell, writing for Law.com, reports that several participants in anti-racism protests earlier in June have sued Pittsburgh and numerous city officials over excessive police tactics, including the use of tear gas and rubber bullets, to break up the otherwise peaceful demonstrations. The lawsuit is likely the first case to be filed in Pennsylvania over the widespread protests, which often led to high-profile police crackdowns, including in Philadelphia where the mayor and police commissioner recently apologized for using tear gas on protesters who were marching on a restricted-access highway. The proposed class action, captioned Rulli v. City of Pittsburgh, was filed on June 29 in the U.S. District Court for the Western District of Pennsylvania. The complaint focuses on protests that occurred earlier in June, and broadly alleges that police's excess tactics violated their rights and led to significant injuries. "On June 1, 2020, people from Pittsburgh and surrounding communities assembled in the East Liberty neighborhood of the city of Pittsburgh to add their voices to these nationwide protests and seek change locally," the 42-page complaint said. "The Pittsburgh Bureau of Police responded by escalating a peaceful protest into a scene of pandemonium, panic, violence and bloodshed." The eight plaintiffs in Rulli include a 13-year-old who was injured by the gas and temporarily separated from his parents, a trained international human rights observer who was detained overnight, and a man who had to have numerous stitches to his wrist after being dragged while handcuffed in zip ties. The suit alleges the city officials, including Mayor Bill Peduto, violated the First and 14th amendments, as well as the Fourth Amendment's protections against excessive force and unlawful arrest. Peduto's press office did not immediately return a call seeking comment. Attorney Quinn Cozzens of the Abolitionist Law Center, who, along with Margaret Coleman of The Law Offices of Timothy P. O'Brien, is lead plaintiffs counsel, said it made sense to file the lawsuit as a collective action, given the number of people who may have been injured at the June 1 protest. (According to the complaint, there should be at least 100 eligible class members.) "Because of the sheer number of people who were there and the similarity in what their experiences were …. we felt that the class action was the most appropriate because of the scope of the violence and brutality the police unleashed here," Cozzens said. The lawsuit focuses on events that occurred at about 6:30 p.m. near the intersections of Centre and Negley avenues. According to the complaint, protesters were marching peacefully, about two hours before a citywide curfew was set to take effect. The complaint, which included links to numerous videos and photographs of the police clashes alluded to, said police formed a line and began telling protesters to disburse. Although protesters did not disburse, they did not do anything to provoke the police either, the complaint said. However, police allegedly began shooting tear gas, rubber bullets and smoke bombs at the protesters, allegedly injuring many. The complaint said many protesters became trapped between approaching police lines and thick clouds of tear gas. Officers also began firing indiscriminately into the clouds of tear gas and smoke, the complaint said. According to the complaint, the decision to use tear gas and to detain the protesters increased their chances of contracting COVID-19. Although 22 people were eventually arrested and brought to the Allegheny County jail, all of the charges against protesters that day were dropped. The complaint also said police used disparate force on the protesters when compared to another protest that happened downtown in spring where numerous people came to voice frustrations over Gov. Tom Wolf's decision to order a statewide shutdown in an effort to stem the spread of COVID-19. The complaint mentioned that many of those protesters openly carried guns, but they were not met with police violence. "The unarmed and peaceful June 1, 2020, protesters posed less of a threat of 'substantial harm or serious inconvenience, annoyance or alarm' to the residents of the city of Pittsburgh than the heavily armed April 20 protesters," the complaint said. Defense counsel has not yet entered an appearance in the case. [GN] PJ CHEESE: Fails to Reimburse Delivery Drivers, Pollard Claims -------------------------------------------------------------- The case, BENJAMIIN POLLARD, individually and on behalf of similarly situated persons, Plaintiff v. PJ CHEESE, INC. d/b/a "Papa John's Pizza", Defendant, Case No. 1:20-cv-00175 (E.D. Tenn., June 26, 2020) arises from Defendant's alleged flawed automobile reimbursement policy in violation of the Fair Labor Standards Act. Plaintiff was employed by Defendant as a Delivery Driver from approximately May 2016 to January 2019. According to the complaint, Defendant required its delivery drivers to maintain and pay for safe, legally-operable, and insured automobiles when delivering pizza and other food items. Although Defendant reimburses delivery drivers on a pre-delivery basis, but Defendant's pre-delivery reimbursement policy equates to below the IRS business mileage reimbursement rate that is less than a reasonable approximation of its drivers' automobile expenses such as gasoline, vehicle parts and fluids, repair and maintenance services, insurance, depreciation, and other expenses during their delivery duties, thereby failing to compensate them of the federal minimum wage. PJ Cheese, Inc. owns and operates numerous Papa John's Pizza franchise stores. [BN] The Plaintiff is represented by: J. Forester, Esq. FORESTER HAYNIE PLLC 400 N. St. Paul St., Suite 700 Dallas, TX 75201 Tel: (214) 210-2100 Fax: (214) 346-5909 Website: https://foresterhaynie.com/jay-forester/ PLASTIKON INDUSTRIES: Appeals Ruling in Bandril Suit to 9th Cir. ---------------------------------------------------------------- Defendant Plastikon Industries, Inc., filed an appeal from a court ruling in the lawsuit titled Arlene Bandril v. Plastikon Industries, Inc., Case No. 20-80015, in the U.S. District Court for the Northern District of California, San Francisco. The lawsuit is brought over alleged violations of the Fair Labor Standards Act. As previously reported in the Class Action Reporter on Nov. 22, 2019, the Defendants filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Alameda (Case No. RG19038227), to the U.S. District Court for the Northern District of California on November 12, 2019. The clerk of court for the Northern District of California assigned Case No. 3:19-cv-07439. The case is assigned to Richard Seeborg. Plastikon Industries Inc. manufactures plastics products. The Company offers injection molding, mold design and build, part decoration and assembly, contract manufacturing, thermoforming, and rotational molding services. Plastikon Industries serves medical, automotive, and electronics industries. The appellate case is captioned as Arlene Bandril v. Plastikon Industries, Inc., Case No. 20-80015, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent ARLENE BANDRIL, individually and on behalf of other members of the general public similarly situated, is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. JUSTICE LAW CORPORATION 410 Arden Avenue Glendale, CA 91203 Telephone: (818) 230-7502 E-mail: dhan@justicelawcorp.com statavos@justicelawcorp.com Defendant-Petitioner PLASTIKON INDUSTRIES, INC., a California corporation, is represented by: Don Willenburg, Esq. GORDON REES SCULLY MANSUKHANI LLP 1111 Broadway, Suite 1700 Oakland, CA 94607 Telephone: (510) 463-8600 E-mail: dwillenburg@grsm.com PLASTIPAK PACKAGING: Munoz Sues Over Failure to Pay Overtime ------------------------------------------------------------ JOSE MUNOZ, individually and on behalf of all others similarly situated, Plaintiff v. PLASTIPAK PACKAGING, INC. and WILLIAM YOUNG, individually, Defendants, Case No. 4:20-cv-00667-O (N.D. Tex., June 26, 2020) is a collective action complaint brought against Defendant for their alleged violation of the Fair Labor Standards Act. Plaintiff was employed by Defendants as a Technician at Defendants' plastic production and processing facility from approximately 2014 through March 2020. According to the complaint, Plaintiff regularly worked five 12-hour shifts every week or about 60 hours every week during his employment with Defendant. However, Defendant did not compensate Plaintiff at one and one-half times his regular rate of pay for all of the hours worked over 40 hours per week, thereby failing to pay him overtime pursuant to the FLSA. William Young is the owner, president and CEO of Plastik Packaging, Inc. Plastipak Packaging, Inc. manufactures and recycles rigid plastic containers for major brands. [BN] The Plaintiff is represented by: Meredith Mathews, Esq. Jay Forester, Esq. FORESTER HAYNIE PLLC 400 N St. Paul St., Ste 700 Dallas, TX 75201 Tel: (214) 210-2100 Fax: (214) 346-5909 Emails: mmathews@foresterhaynie.com jay@foresthaynie.com - and – Jill J. Weinberg, Esq. WEINBERG LAW FIRM, PLLC 6425 Willow Creek Drive Plano, TX 75093 Tel: (972) 403-3330 Email: jillwlfirm@gmail.com PLAYAGS INC: Schall Law Firm Reminds of August 24 Deadline ---------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on June 30 announced the filing of a class-action lawsuit against PlayAGS, Inc. ("PlayAGS" or "the Company") (NYSE:AGS) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between August 2, 2018 and August 7, 2019, inclusive (the "Class Period"), are encouraged to contact the firm before August 24, 2020. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. PlayAGS was experiencing severe challenges in its Oklahoma business. These challenges were likely to negatively impact the Company's recurring revenue. The Company was also experiencing trouble with its interactive business segment, such as delays in securing regulatory approvals. These challenges were likely to result in the Company recording a goodwill impairment. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about PlayAGS, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. CONTACT: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] PORTFOLIO RECOVERY: Jones Suit Moved From W.D. Tenn. to E.D. Va. ---------------------------------------------------------------- The class action lawsuit captioned as DANNY LYNN JONES, Individually and on behalf of all others similarly situated v. PORTFOLIO RECOVERY ASSOCIATES, L.L.C., Case No. 1:20-cv-01083, was transferred from the U.S. District Court for the Western District of Tennessee to the U.S. District Court for the Eastern District of Virginia (Norfolk) on June 30, 2020. The Eastern District of Virginia Court Clerk assigned Case No. 2:20-cv-00349-AWA-DEM to the proceeding. The case is assigned to the Hon. Judge Arenda L. Wright Allen. The lawsuit seeks to recover compensation, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938. Portfolio Recovery provides debt recovery and collection services. The Company specializes in contingency collections for national credit card issuers, consumer lenders, telecommunications providers, retail credit stores, healthcare, utilities, and commercial accounts receivables.[BN] The Plaintiff is represented by: Austin Anderson, Esq. Lauren Elizabeth Braddy, Esq. William Clifton Alexander, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com cliff@a2xlaw.com - and - Charles Peter Yezbak, III, Esq. YEZBAK LAW OFFICES 2002 Richard Jones Rd., Suite B-200 Nashville, TN 37215 Telephone: (615) 250-2000 Facsimile: (615) 250-2020 E-mail: yezbak@yezbaklaw.com The Defendant is represented by: Darin Shreves, Esq. Ogletree Deakins, Esq. PORTFOLIO RECOVERY ASSOCIATES, L.L.C. 4520 Main Street, Suite 400 Kansas City, MO 64111 Telephone: (816) 410-2219 Facsimile: (816) 471-1303 E-mail: darin.shreves@ogletree.com - and - Patrick Francis Hulla, Esq. Yasmin A. Mohammad, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART, PC 4520 Main Street, Suite 400 Kansas City, MO 64111 Telephone: (816) 471-1301 Facsimile: (816) 471-1303 E-mail: patrick.hulla@ogletreedeakins.com yasmin.mohammad@ogletree.com POST CONSUMER: Court Denies Bid to Dismiss Gonzalez Class Suit -------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied the Defendant's motion to dismiss the case, PETER TUCKER, Plaintiff, v. POST CONSUMER BRANDS, LLC, Defendant, Case No. 19-cv-03993-YGR (N.D. Cal.). Plaintiff Tucker brings the putative class action alleging that the branding and packaging of the Defendant's "Honey Bunches of Oats" cereal falsely and deceptively conveyed that honey was a primary or significant sweetener, when in fact, refined substances were the primary sweeteners. The operative complaint alleges three causes of action for violations of the California Consumers Legal Remedies Act ("CLRA"); California False Advertising Law ("FAL"); and California Unfair Competition Law ("UCL"). The Defendant manufactures and markets varieties of breakfast cereals known as "Honey Bunches of Oats." These cereals are sold to the public in rectangular boxes containing 13 ounces or more of cereal and individual serving "to go" cups containing 2.25 ounces of cereal. The front of each package is materially identical. The package depicts a large yellow-orange circle simulating a radiating sun, emblazoned with the words "HONEY BUNCHES OF OATS" and showing a wooden honey dipper dripping honey, and towards the bottom of the package is the outline of a bee trailing a broken line indicating flight. The Plaintiff alleges the branding and packaging of the cereal convey to consumers that honey is a primary or significant sweetener, as compared to sugar and other refined substances that are perceived as unhealthy. In support of the claim, he points to an August 2019 survey of more than 400 consumers, in which 68% of respondents believed honey was the cereal's primary sweetener and 79.5% believed honey was one of the cereal's three main ingredients based on the front packaging. He alleges that in fact, the product is sweetened using various combinations of white sugar, brown sugar, corn syrup, malted barley syrup, molasses, and honey, with honey consistently being the least or second-least prominent sweetener. The Plaintiff most recently purchased Honey Bunches of Oats on Jan. 16, 2019. He alleges that he purchased and consumed the cereal based on the branding and packaging, which led him to believe the cereal was primarily or exclusively sweetened with honey and that honey was one of the top three ingredients in the cereal. He alleges that he would consider purchasing the cereal again if the labeling were accurate. The Plaintiff filed his initial complaint in the action on July 11, 2019. On Aug. 16, 2019, the Court entered a joint stipulation to stay the case pending a decision on a motion to dismiss filed in Lima v. Post Consumer Brands, LLC, No. 1:18-cv-12100-ADB (D. Mass.), which the parties agreed would resolve some or all of the claims in this case, or, at a minimum, would be instructive and helpful to resolving the similar factual and legal claims in the case. The Lima court dismissed the complaint with prejudice. On Sept. 11, 2019, the Plaintiff filed an amended complaint in the case. The Defendant moves to dismiss all three claims on the grounds that: (i) the branding and packaging at issue comply with the Federal Drug Administration ("FDA")'s flavor labeling and misbranding regulations, and thus, the Plaintiff's claims are preempted; (ii) no reasonable consumer would understand the Honey Bunches of Oats packaging to make a representation about the amount of honey in the cereal; and (iii) the Plaintiff lacks standing to seek injunctive relief because he does not plausibly allege that he will be deceived in the future. The Defendant also argues that even if the Court finds the Plaintiff has stated a claim for relief under the CLRA, his FAL and UCL claims fail because he has an adequate remedy at law. At this juncture, Judge Rogers cannot find, as a matter of law, that honey is the "primary recognizable flavor" in the Defendant's cereals, such that the labeling at issue is permitted under section 101.22(i) and the Plaintiff's claims are preempted. Nor can the Judge conclude, based on the Plaintiff's allegations alone, that honey is a sweetener in the cereals. Whether honey is a "primary recognizable flavor, sweetener, or both is a factual determination not appropriate for resolution on a motion to dismiss. Also, at the pleading stage, the Judge cannot second guess the truth of the Plaintiff's allegation that he purchased the Pefendant's cereal because of the promise of honey as a sweetener. Thus, the Plaintiff's claims are not preempted under section 101.22(i). Next, the Plaintiffs allege that the brand name "Honey Bunches of Oats" and the images on the cereal's packaging deceptively convey that honey is a primary or significant sweetener in the cereal. There is no dispute that the cereal contains some honey, and in that sense, certain aspects of the packaging could be considered accurate. In applying the reasonable consumer standard, however, the packaging must be considered in context. The Court holds that although the package does not make any objective representations about the amount of honey in the cereal, a reasonable consumer could see the prominent honey-related words and imagery and be deceived into thinking the cereal contained relatively less refined sugar and more honey. If so misled, the reasonable consumer is not expected to pick up the product and examine the fine print on the ingredient list. Finally, while the consumer survey described in the amended complaint cannot, on its own, satisfy the reasonable consumer test, it provides further support for the Plaintiff's position. At this stage of the proceedings, the Court must accept the Plaintiff's allegations as true and must not engage in the weighing of the evidence. Accordingly, the Defendant's motion to dismiss the claims on the ground that no reasonable consumer would understand the Honey Bunches of Oats packaging to make a representation about the amount of honey in the cereal is denied. The Plaintiff has also sufficiently alleged that he was deceived by the front of the Honey Bunches of Oats packaging and that he may purchase the cereal again in the future if the label is accurate. Absent injunctive relief, the Plaintiff would not know whether honey is in fact a significant sweetener in the Defendant's product based on the front of the cereal box. Nor is the onus on the Plaintiff to consult the ingredient list to try to discern this fact. The Plaintiff's inability to rely on the honey-related words and images prominently featured on the front and top of the cereal box constitutes an ongoing injury for which the Plaintiff may seek injunctive relief. As such, the Defendant's request to dismiss the Plaintiff's request for injunctive relief is denied. Finally, the Court considers whether the Plaintiff's FAL and UCL claims should be dismissed because the CLRA provides him with an adequate remedy at law. The Court holds that the Plaintiff's FAL and UCL claims are not subject to dismissal on the ground that the Plaintiff has an adequate remedy at law under the CLRA. With respect to the UCL, the Court holds that Business & Professions Code section 17205 expressly provides that remedies available for a UCL violation are cumulative to each other and to the remedies or penalties available under all other laws of this state. As for FAL, the availability of monetary damages does not preclude a claim for equitable relief under the FAL based upon the same conduct. In light of the foregoing, Judge Rogers denied the Defendant's motion to dismiss. Further, a case management conference will be set for July 20, 2019 at 2:00 p.m. in the Federal Building, 1301 Clay Street, Oakland in Courtroom 1. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/o4onYM from Leagle.com. PRECISION 2000: Garcia-Robelo et al. Seek Proper Wages ------------------------------------------------------ JUAN SERVANDO GARCIA-ROBELO, EDUARDO GARCIA-ZAVALA, GILBERTO GARCIA-ZAVALA, HUGO PEREZZAVALA, and SALVADOR MARTINEZ-BARRERA, individually and on behalf of all similarly situated persons, Plaintiffs, v. PRECISION 2000, INC., CASA PROPERTIES, LLC, GUIOMAR OBREGON, individually, CARLOS FRANCISCO SANCHEZ, individually, and MAURICIO LANCHEROS, individually, Defendants, Case No. 1:20-cv-02841-MLB-JKL (N.D. Ga., July 8, 2020) is an action brought by the Plaintiffs under the Fair Labor Standards Act to recover unpaid wages and damages owed to Plaintiffs and those similarly situated who elect to opt-in to this action pursuant to the FLSA Section 201 et seq., and specifically the collective action provision of Section 216(b), to remedy Defendants' violations of the FLSA related to unlawful wage deductions for alleged housing expenses. Plaintiffs also bring claims for unlawful retaliation under Section 215(a)(3) of the FLSA, breach of contract and the implied covenant of good faith and fair dealing, and race and national origin discrimination claims under 42 U.S.C. Section 1981. Plaintiffs have also filed charges under Title VII of the Civil Rights Act of 1964 that are pending at the Equal Employment Opportunity Commission ("EEOC") for which Right to Sue Notices have not yet been issued. Plaintiffs plan to amend the Complaint to assert Title VII claims upon issuance of their Notices of Right to Sue. According to the complaint, the Precision 2000 recruited and contracted Plaintiffs from Mexico to temporarily relocate to Georgia and work construction jobs under the H-2B temporary foreign workers visa program. The named Plaintiffs left their homes and families and spent considerable money and effort to come to the United States to perform arduous work, which the Defendants certified to the federal government that domestic U.S. workers were not willing to do. During their recruitment abroad, Defendants promised to pay Plaintiffs wages that complied with federal and state law, and contracted with them to provide affordable housing during their temporary stay in the United States. These promises were false. Upon arrival, Defendants forced Plaintiffs to pay exorbitant rent for substandard, overcrowded, and often sweltering housing in buildings owned by Defendants. Plaintiffs' domestic worker counterparts were not subjected to these abhorrent conditions. Plaintiffs complained to Precision 2000's management about the housing conditions and excessive rental charges, which effectively reduced their wages to subminimum rates, and asked to be allowed to secure their own housing. Defendants refused, making clear that the housing -- a side, profitmaking business for Defendants' construction enterprise -- was a condition of the workers' jobs. When Plaintiffs continued to complain, Defendants threatened the workers with removal to Mexico, and ultimately fired them before the expiration of their work contracts, in violation of federal anti-retaliation laws and in breach of contract. Precision 2000, Inc. is a Georgia-based civil infrastructure construction company that contracts to work on projects involving airport infrastructure, transportation infrastructure, and related projects, including work on runways, taxiways, walkways, roads, and highways. Precision 2000 also does repairs on historical, governmental, recreational, medical, and office buildings. Casa Properties, LLC is an entity affiliated with Precision 2000.[BN] The Plaintiffs are represented by: Rachel Berlin, Esq. Benjamin Georgia, Esq. BUCKLEY BEAL, LLP 600 Peachtree Street NE Suite 3900 Atlanta, GA 30308 Telephone: (404) 781-1100 Facsimile: (404) 781-1101 E-mail: rberlin@buckleybeal.com - and - Benjamin Richard Botts, Esq. Julie Pittman, Esq. CENTRO DE LOS DERECHOS DEL MIGRANTE, INC. 10 E. North Avenue, #9 Baltimore, MD 21202 Telephone: (855) 234-9699 Facsimile: (443) 817-0806 E-mail: ben@cdmigrante.org julie@cdmigrante.org PRECISION DRILLING: Third Circuit Appeal Filed in Tyger FLSA Suit ----------------------------------------------------------------- Plaintiffs Rodney Tyger and Shawn Wadsworth filed an appeal from a court ruling issued in their lawsuit styled Rodney Tyger, et al. v. Precision Drilling Corp, et al., Case No. 4-11-cv-01913, in the U.S. District Court for the Middle District of Pennsylvania. The lawsuit is brought over alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Rodney Tyger, et al. v. Precision Drilling Corp, et al., Case No. 20-1070, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellants RODNEY TYGER, on behalf of himself and those similarly situated; and SHAWN WADSWORTH, on behalf of himself and those similary situated, are represented by: Nicholas D. George, Esq. Justin L. Swidler, Esq. SWARTZ SWIDLER 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 E-mail: ngeorge@swartz-legal.com jswidler@swartz-legal.com Defendants-Appellees PRECISION DRILLING CORP, PRECISION DRILLING OILFIELD SERVICES INC., and PRECISION DRILLING CO LP are represented by: Michael C. Crow, Esq. NORTON ROSE FULBRIGHT 1301 McKinney Street Fulbright Tower, Suite 5100 Houston, TX 77010 Telephone: (713) 651-5218 E-mail: carter.crow@nortonrosefulbright.com - and - Mark T. Phillis, Esq. LITTLER MENDELSON 625 Liberty Avenue EQT Plaza, 26th Floor Pittsburgh, PA 15222 Telephone: (412) 201-7636 E-mail: mphillis@littler.com PREFERRED APARTMENT: Ciccone Files Suit for Breach of Contract --------------------------------------------------------------- Jennifer Ciccone, individually and on behalf of all others similarly situated, Plaintiff, v. Preferred Apartment Communities, Inc., Defendant, Case No. 20-cv-61127 (S.D. Fla., June 8, 2020), seeks statutory, compensatory and punitive damages, prejudgment interest on all amounts awarded, restitution and all other forms of equitable monetary relief, injunctive relief, reasonable attorneys' fees, litigation expenses and costs of suit resulting from breach of contract and unjust enrichment and for violation of the Florida Consumer Collection Practices Act. Preferred Apartment Communities, Inc. owns and operates private student housing communities at or near colleges and universities throughout Florida, including The Retreat at Orlando next to the University of Central Florida, where Ciccone, leased an apartment for her daughter who is enrolled for the Fall 2019 top Summer 2020 academic school year. As a result of the COVID-19 pandemic, universities throughout Florida have closed. University campuses had to be vacated to preserve the safety of the students including dormitories. Ciccone executed Lease Agreements with the Preferred Apartment Communities but did not receive the bargained-for-services. [BN] Plaintiff is represented by: William Peerce Howard, Esq. Heather H. Jones, Esq. Amanda J. Allen, Esq. THE CONSUMER PROTECTION FIRM 4030 Henderson Boulevard Tampa, FL 33629 Telephone: (813) 500-1500 Facsimile: (813) 435-2369 Email: Billy@TheConsumerProtectionFirm.com Heather@TheConsumerProtectionFirm.com Amanda@TheConsumerProtectionFirm.com - and - John W. Barrett, Esq. Raymond S. Franks, II, Esq. BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 Telephone: (304) 345-6555 Facsimile: (304) 342-1110 Email: JBarrett@baileyglasser.com RFranks@baileyglasser.com PRO TEETH: Faces Class Action Over Dental Products with Charcoal ---------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that the maker of dental care products with charcoal in them can't prove they help customers, a June 22 class action says. Chelsea Roussel filed the case in Rhode Island federal court against Pro Teeth Whitening Co. LTD, which manufactures a line of dental products containing activated charcoal. Claims that the products are safe on enamel, freshen breath and brightens discoloration can't be verified, the suit says. "Pro Teeth did not (and does not) possess the requisite evidence to substantiate its claims concerning the benefits and safety of its charcoal dentifrices, as such evidence did not exist at the times it made its claims," the lawsuit says. "Nor does it currently exist." The lawsuit points to dental journal articles that found no evidence charcoal helps mouths, with one worrying that it is a "marketing gimmick." Oklahoma City firm Federman & Sherwood is pursuing the case, along with Hultquist Law of Providence. [GN] PROASSURANCE CORP: Levi & Korsinsky Notes of Aug. 17 Deadline ------------------------------------------------------------- Levi & Korsinsky, LLP, announces that a class action lawsuit has commenced on behalf of shareholders of publicly-traded ProAssurance Corporation (PRA). Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. PRA Shareholders Click Here: https://www.zlk.com/pslra-1/proassurance-corporation-loss-form?prid=7748&wire=1 ProAssurance Corporation (PRA) PRA Lawsuit on behalf of: investors who purchased April 26, 2019 - May 7, 2020 Lead Plaintiff Deadline : August 17, 2020 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/proassurance-corporation-loss-form?prid=7748&wire=1 According to the filed complaint, during the class period, ProAssurance Corporation made materially false and/or misleading statements and/or failed to disclose that: (i) ProAssurance lacked adequate underwriting process and risk management controls necessary to set appropriate loss reserves in its Specialty P&C segment; (ii) ProAssurance failed to properly assess a large national healthcare account that experienced losses far exceeding the assumptions made when the account was underwritten; and (iii) as a result, ProAssurance was subject to materially heightened risk of financial loss and reserve charges. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Contact: Levi & Korsinsky, LLP Joseph E. Levi, Esq. 55 Broadway, 10th Floor New York, NY 10006 E-mail: jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 Web site: http://www.zlk.com/ [GN] RASH CURTIS: $89MM Attorneys' Fees Awarded in Perez Lawsuit ----------------------------------------------------------- In the case, IGNACIO PEREZ, Plaintiff, v. RASH CURTIS & ASSOCIATES, Defendant, Case No. 4:16-cv-03396-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, among other things, granted in part and denied in part the Plaintiff's motion for an award of attorneys' fee, costs, and expenses and service award for Perez. Plaintiff Perez commenced the putative class action against Defendant Rash Curtis & Associates alleging that it called him and the class members without consent, in violation of several laws. The case arises from Rash Curtis' alleged violations of the (i) Telephone Consumer Protection Act ("TCPA"); (ii) Fair Debt Collection Practices Act ("FDCPA"); and (iii) the California Rosenthal Fair Debt Collection Practices Act. On May 13, 2019, a jury verdict was entered that each member of the classes will recover from the Defendant the amount of $500 per call made in violation of the TCPA, for an aggregate award in favor of the classes of $267,349,000. While the sum is large, the math was not, namely $500 for each of the calls identified in the evidence, presented to the jury. In response to the Court's order from the bench on May 13, 2019, the parties filed proposed final judgments on May 15, 2019. Perez proposed a form of final judgment on the issues decided by the jury, and did not include any then outstanding or remaining issues to be decided. Rash Curtis submitted a letter brief stating that any judgment that could be entered at this point in time would only be partial, not disposing of all claims, and thus not final. As of that date, Perez still maintained that the purported violations were willful and knowing within the meaning of 47 U.S.C. Section 227(b)(3)(C), and Rash Curtis argued that the statutory damage amount as applied here was unconstitutional. Thus, Rash Curtis requested that final judgment be held in abeyance while the parties negotiate settlement before Magistrate Hixson. On Sept. 9, 2019, Perez withdrew the claim that defendant violated the TCPA "willfully or knowingly," and requested that the Court enters final judgment in the form that was previously submitted. That same day, the Court entered Perez's previously submitted proposed final judgment as the final judgment in the case. On Sept. 23, 2019, Perez filed the motion for attorneys' fees. On Oct. 7, 2019, Rash Curtis filed the motion to alter or amend, and the motion to reconsider. After receiving a letter brief from plaintiff on Oct. 15, 2019, the Court stayed briefing on all then-pending motions, and indicated that the briefing schedule would be reset at the subsequent status conference to be set the week of Oct. 21, 2019. The Court reset the briefing for these motions, and heard these motions, including a motion for approval of the Plaintiffs' proposed notice to the class members, on Nov. 17, 2019. At the hearing, the Court granted Perez's motion for approval of the Plaintiffs' proposed notice to the class members. On Jan. 21, 2020, Rash Curtis filed the motion to vacate which the Court heard on Feb. 26, 2020. Hearings on the motion were held on Nov. 18, 2019 and Feb. 26, 2020. The parties' briefing identifies four issues, namely whether: (1) Rash Curtis meets the standards for altering or amending the final judgment; (2) the judgment should be amended to reflect that Rash Curtis prevailed on the TCPA claim for willful and/or knowing violations and on the request for injunctive relief; (3) the judgment should be amended to reflect the claims on which Rash Curtis prevailed at the summary judgment stage; and (4) the judgment should be amended to state that any residue of the class damages award which are not claimed by a member of the class is released back to the Defendant. Judge Rogers finds that Rash Curtis is appropriately advancing arguments under Rules 59 and 60. Rash Curtis argues that the Court erred in entering the form of judgment proposed by the Plaintiff and the class counsel in May 2019. In other words, Rash Curtis is arguing either that the motion is necessary to correct manifest errors of law or fact, the motion is necessary to prevent manifest injustice, and to correct mistakes resulting from using the Plaintiff's proposed form of judgment. As discussed at the Nov. 18, 2019 hearing, the Court admits that it erred in accepting the proposed final judgment form from Perez, without awaiting or permitting any response from Rash Curtis, despite the Court's routine practice to the contrary. The Court's admission, coupled with Rash Curtis' arguments, plainly satisfies the standards required by Rules 59 and 60. Thus, Judge Rogers finds that the motion is appropriately brought under Rules 59 and 60. Perez's argument as to the willful and knowing claim do not persuade. As indicated on the record, the Court's acceptance of Perez's proposed form of judgment was in error, and in no way reflected the Court's granting of Perez's withdrawal of his willful and knowing claim through amendment of the operative complaint. Thus, the Judge dismisses with prejudice Count I for the willful and knowing violation of the TCPA. Regarding the withdrawal of the request for injunctive relief, Rash Curtis' arguments do not persuade. The request for injunctive relief was not a separate claim in the operative complaint, but one of several remedies requested by the Plaintiff and the class based on the four claims. Rash Curtis cites no authority demonstrating the appropriateness of amending the judgment to include the disposition of such a remedy. Accordingly, Judge Rogers: (1) grants Rash Curtis' request to amend the judgment to reflect the dismissal with prejudice of Count I, the willful and/or knowing violations of the TCPA claim;1 and (2) denies Rash Curtis' request to amend the final judgment with regard to Perez's request for injunctive relief. Thus, the final judgment will be amended to reflect that Count I, the knowing and/or willful violation of the TCPA claim is dismissed with prejudice. Rash Curtis requests to amend the final judgment to reflect that it succeeded at summary judgment on the claims brought under 15 U.S.C. Section 1692 et. seq. and Cal. Civ. Code. Sections 1788.11(d) and (e). Perez opposes Rash Curtis' request to amend the judgment to reflect Rash Curtis' success at summary judgment. The Court holds that Perez's arguments do not persuade. First, Perez's cited authority is inapposite, where such authority concerns the appealability of issues raised in the district court. Second, Perez does not articulate any specific harm or compelling reason against permitting the amendment, especially where it would accurately reflect the disposition of issues and claims decided earlier in the case. Accordingly, Judge Rogers grants Rash Curtis' request: the final judgment will be amended to reflect that Rash Curtis succeeded at summary judgment on the claims brought under 15 U.S.C. Section 1692 et. seq. and Cal. Civ. Code. Sections 1788.11(d) and (e). Rash Curtis' request to amend the final judgment to include a residue statement, which would contradict the common fund created in the TCPA action. Thus, in light of the foregoing, the Court granted in part and denied in part Rash Curtis' motion to amend or alter. Turning to Rash Curtis' motion to overturn or reduce the damages verdict, it raises three issues, namely whether: (1) the law of the case" bars Rash Curtis from raising arguments about the unconstitutionality of the TCPA as applied; (2) the award is statutorily excessive; and (3) the award is unconstitutionally excessive. The Court concludes that (i) Rash Curtis' arguments as to the constitutionality of the award are not barred by the "law of the case" doctrine; (ii) the statutory language of the TCPA is unambiguous and nothing in the language suggests that the damage amount was meant to be read as "up to" $500 as Rash Curtis suggests, and the motion to reconsider on the ground that the award is statutorily excessive; and (iii) Rash Curtis again cites to the same authority to argue that the award is unconstitutional as a grossly excessive punishment, hence the award is unconstitutionally excessive and the motion to reconsider is denied. Rash Curtis' motion to vacate requests that the Court issues an order setting aside the judgment and terminating the case in Rash Curtis' favor; or, alternatively, issue an order granting a new trial; or, alternatively, issue an order vacating the judgment and granting further relief as deemed appropriate by the Court pursuant to Rule 60 and the Court's inherent authority pursuant to Chambers v. NASCO, Inc. Among other things, the Court finds that the Defendant fails to meet the demanding standard required under Rule 60. Many of the identified grounds have already been adjudicated by the Court in prior orders, and the grounds in the motion to vacate are nothing more than requests to reconsider, and without meeting any of the standards required for reconsideration. Rash Curtis fails to demonstrate how materials submitted in posttrial briefing would require the Court to vacate the verdict reached by the jury at trial. Accordingly, in light of the foregoing, the Judge denies Rash Curtis' motion to vacate. Finally, in their motion for attorneys' fees, the class counsel requests attorneys' fees in the amount of one-third (33.33%) of the $267,349,000 class award, totaling approximately $89,116,333.33. The Class counsel further seeks to recover expenses for nontaxable expenses, in the amount of $277,416.28. Finally, the class counsel requests a service award for Perez in the amount of $50,000. The Judge holds that upon objective consideration of the five foregoing factors, he finds that the factors weigh in favor of an upward departure from the 25% benchmark to the requested 33% rate. Concluding that 33% is a reasonable percentage, and that the lodestar crosscheck reveals a reasonable multiplier, the Judge grants the class counsel's requests for attorneys' fees based on one-third of the percentage of the judgment ($89,116,333.33). The Judge also grants the class counsel's requests for non-taxable costs, in the amount of $277,416.28. Finally, the Court finds that while Perez is entitled to a service award, the amount requested is beyond the scope of what she finds appropriate for Perez in these circumstances. The Court recognizes that Perez has been actively participating in the litigation for several years, and has spent time and effort in the matter, including being deposed and testifying at trial. However, the Court finds that Perez's showing on these facts does not demonstrate that he is entitled to a service award in the amount of $50,000. In light of the totality of circumstances, the Judge in her discretion finds that a service award in amount of $25,000 -- an amount that is on the higher end for a service award in the district -- is more appropriate. Thus, the Court grants in part and denies in part the request for a service award for Perez. In sum, Judge Rogers: (1) granted in part and denied in part the Plaintiff's motion for an award of attorneys' fee; (2) granted in part and denied in part the Defendant' to alter judgment or amend the judgment in its favor; (3) denied the Defendant's motion to reduce, reconsider, amend, or vacate the judgment's unconstitutionally excessive damages; and (4) denied the Defendant's motion to vacate the judgment and for terminating sanctions based upon misconduct of counsel, or, in the alternative, for new trial, or further relief as determined by the Court. A full-text copy of the District Court's April 17, 2020 Order is available at https://is.gd/JR5pSD from Leagle.com. RESPONSE MARKETING: Fabricant et al. Sue over Unsolicited Calls --------------------------------------------------------------- TERRY FABRICANT and SIDNEY NAIMAN, individually and on behalf of all others similarly situated, Plaintiff v. RESPONSE MARKETING GROUP, LLC, D/B/A SNAP FLIP; SCOTT YANCEY; and DOES 1 through 10, inclusive, Defendant, Case 2:20-cv-05739 (D. Utah, June 26, 2020) seeks to stop the Defendants' practice of making unsolicited calls. Response Marketing Group LLC provides marketing communications and advertising solution services. The Company offers comprehensive range of inbound and outbound call center services to create a complete end to end solution. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com RET PLANS: 2nd Circuit Reinstates Judgment in ERISA Class Action ---------------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on June 22, 2020, the Second Circuit reinstated its judgment entered pursuant to its initial opinion in an Employment Retirement Income Security Act of 1974 ("ERISA") class action after the Supreme Court vacated the decision. Jander v. Ret. Plans Comm. of IBM, No. 17-3518 (2d Cir. June 22, 2020). The Supreme Court remanded the action earlier this year in order for the Second Circuit to decide whether to consider in the first instance certain arguments raised for the first time before the Supreme Court. On remand, the Second Circuit reviewed additional submissions from the parties as well as amici and reinstated its original decision, holding that the arguments raised in the supplemental briefs either were previously considered or were not properly raised and thus forfeited. Accordingly, the Second Circuit's prior opinion stands, holding that plaintiffs adequately pled that employee stock option plan ("ESOP") fiduciaries violated their duty of prudence by not disclosing, earlier, insider information they allegedly possessed that, when subsequently disclosed, allegedly led to a stock price drop. As set forth in the Second Circuit's initial opinion, plaintiffs, participants in an ESOP provided by a technology company (the "Company"), alleged the plan fiduciaries violated their duty under ERISA to manage the plan's assets prudently, because they knew but failed to disclose that a certain division of the Company, and thus the Company's stock, was allegedly overvalued. Plaintiffs further alleged that, when the true value of the division was ultimately revealed when the Company announced the sale of that division, the Company's stock dropped. Plaintiffs brought suit in the Southern District of New York, and the District Court dismissed both the complaint and amended complaint in 2017 after holding that plaintiffs did not plausibly allege a violation because a prudent fiduciary could have concluded that disclosing this alleged information previously would have done "more harm than good," based on the Supreme Court's decision in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014). In Fifth Third, the Supreme Court determined that a duty‐of‐prudence claim may be brought against ESOP plan fiduciaries who allegedly "behaved imprudently by failing to act on the basis of nonpublic information that was available to them because they were [corporate] insiders." The Supreme Court noted that the duty of prudence cannot require an ESOP fiduciary to violate the securities laws, including concerning insider trading and corporate disclosure requirements. The Court further indicated that to determine whether a plaintiff has adequately pled that a fiduciary violated the duty of prudence, a court must, among other elements, assess the alternatives available to the fiduciary and consider if the complaint plausibly alleged that a "prudent fiduciary in the defendant's position could not have concluded [that those alternatives] would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund." Plaintiffs appealed the dismissal to the Second Circuit, arguing that, as to the "more harm than good" element, the standard applied by the District Court was more stringent than that set forth in Fifth Third. The Second Circuit examined this question but ultimately found it unnecessary to determine whether the District Court had applied a stricter standard, because the Second Circuit found that plaintiffs plausibly pled a duty‐of‐prudence claim even under this standard. The Second Circuit noted that, in discussing the "more harm than good" analysis, the Supreme Court appeared to set forth two arguably inconsistent tests: (1) "what an average prudent fiduciary might have thought" regarding whether the alternatives would do more harm than good; or (2) "whether any prudent fiduciary could have considered the action to be more harmful than helpful" (emphases added). The Second Circuit observed that lower courts have been split as to how to interpret which of the two tests "determine whether a plaintiff has plausibly alleged that the actions a defendant took were imprudent in light of available alternatives." However, the Second Circuit concluded that it did not need to decide which of the two standards was correct, because it found that plaintiffs plausibly pled a duty-of-prudence claim even under the more restrictive formulation, based on plaintiffs' allegations that: defendants allegedly knew that the Company's stock was artificially inflated through accounting violations; defendants allegedly "had the power to disclose the truth"; a "reasonable business executive could plausibly foresee . . . the disclosure of a longstanding corporate fraud would reflect badly on the company"; the Company's stock allegedly traded in an efficient market; and defendants allegedly knew that disclosure of the truth regarding the division at issue was inevitable, because the Company was likely to sell the business, at which point the alleged overvaluation would be revealed to the public. Accordingly, the Second Circuit reversed the dismissal and remanded the case to the District Court for further proceedings. That reversal and remand -- vacated by the Supreme Court -- have now been reinstated. [GN] RETAIL MERCHANTS: Faces Jones FDCPA Class Suit in W.D. Arkansas --------------------------------------------------------------- A class action lawsuit has been filed against Retail Merchants Association, Inc., et al. The case is styled as Heather Jones, also known as: Heather Dempsey, Individually and on behalf of others similarly situated v. Retail Merchants Association, Inc., John Doe 1-25, Case No. 1:20-cv-01029-SOH (W.D. Ark., July 6, 2020). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Retail Merchants Association, Inc., is involved in the business of collecting delinquent debts.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Email: ysaks@steinsakslegal.com RIMROCK ENGINEERING: Judge Okays $3.45MM Class Action Settlement ---------------------------------------------------------------- Billings Gazette reports that a settlement in a class-action lawsuit filed by residents of three Billings subdivisions was approved on June 30. Yellowstone County District Judge Gregory Todd approved the $3.45 million settlement to be split by residents of the far West End neighborhoods who claim their homes and their value have been damaged by the negligence of engineers who worked on the developments. The subdivisions included Copper Ridge, Reflections at Copper Ridge and Falcon Ridge, and the suit names Rimrock Engineering, Rawhide Engineering, and Robert Kukes. The case, however, is not closed, the plaintiff's lead attorney John Heenan said on June 30. "This money won't make them (homeowners) anywhere near whole," he said. "We'll continue to investigate. Other people have responsibility and we'll continue to pursue it." As many as 661 homeowners remained in the class action suit, after two homeowners opted out, according to court documents. The judge found the settlement "fair, reasonable and adequate." Claim forms will be sent to class members in late July or early August, said Heenan. The engineering firms failed to properly address concerns raised in an earlier geotechnical engineering report for the subdivision that identified "hydro-collapsible" soil in the area and called for further investigation, according to the plaintiffs. Under the terms of the agreement, money would be distributed among 663 homeowners according to a formula awarding more in cases where homeowners can document property damage. Everyone who lives in the subdivision is covered, under the idea that even without damage to their home property values could sink due to their proximity to the homes with collapsing foundations. Seth Cunningham, an attorney for Rimrock Engineering, said earlier in the case the proposed settlement was not an admission of liability but that it would benefit everyone involved. "The parties involved agreed that it was in their best interests to move past this matter given the limited amount of insurance funds available," Cunningham wrote. [GN] RYDER SYSTEM: Bronstein Gewirtz Reminds of July 20 Deadline ----------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC reminds investors that a class action lawsuit has been filed against Ryder System, Inc. (NYSE: R) ("Ryder" or "the Company") and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Ryder securities between July 23, 2015 and February 13, 2020, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/r. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) failed to disclose that Ryder's financial results were inflated as a result of the Company's practice of overstating the residual values of the vehicles in its fleet; (2) there was no reasonable basis to believe that Ryder would sell its used vehicles for the amounts that it had assigned to them; (3) Ryder's residual values for its fleet of vehicles exceeded the expected future values that would be realized upon the sale of those vehicles by such a degree that the Company ultimately took a $357 million depreciation charge in 2019 related to Ryder's reduction of its residual values to align them with the amounts for which they could realistically be sold; and (4) 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. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/r or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Ryder you have until July 20, 2020 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. Contact: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Hurwitz 212-697-6484 | info@bgandg.com [GN] RYDER SYSTEM: Faruqi & Faruqi Reminds of July 20 Deadline --------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in Ryder System, Inc. ("Ryder" or the "Company") (NYSE: R) of the July 20, 2020 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you invested in Ryder System stock or options between July 23, 2015 and February 13, 2020 and would like to discuss your legal rights, click here: www.faruqilaw.com/R. There is no cost or obligation to you. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com. CONTACT: FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Attn: Richard Gonnello, Esq. rgonnello@faruqilaw.com Telephone: (877) 247-4292 or (212) 983-9330 The lawsuit has been filed in the U.S. District Court for the Southern District of Florida on behalf of all those who purchased Ryder common stock between July 23, 2015 and February 13, 2020 (the "Class Period"). The case, Key West Police & Fire Pension Fund v. Ryder System, Inc. et al., No. 1:20-cv-22109 was filed on May 20, 2020. The complaint alleges that Defendants inflated Ryder's financial results by systematically overstating the residual value of its trucking fleet. While Ryder repeatedly increased the expected residual values of its trucks, the actual amount Ryder was receiving from sales of used trucks had started to decline beginning in 2015. Nevertheless, the Company assured investors that it had been "conservative" in establishing the residual values of trucks in its fleet and "[w]e don't have a situation where we've got a bunch of vehicles that are at high residual values [and] have to be written down." As a result of Defendants' misrepresentations, shares of Ryder's common stock traded at artificially inflated prices during the Class Period. On July 30, 2019, the Company reported earnings before tax for the second quarter of 2019 in its FMS business segment of $57.7 million compared to $76.6 million the prior year period, driven by lower used vehicle sales results which had declined from the prior year as a result of higher valuation adjustments of $10.4 million on a larger inventory and higher depreciation of $7.6 million due to residual value changes. As a result, Ryder reduced its earnings per share forecast for 2019 to a range of $4.80 to $5.10, as compared to its prior forecasted range of $5.28 to $5.58. Although the Company did not quantify the impact of used vehicle prices on its 2019 outlook, management indicated that the majority of the lowered guidance reflected weaker tractor valuations. On this news, the Company's stock price fell from $59.32 per share on July 29, 2019 to $53.38 per share on July 30, 2019: a $5.94 or 10.01% drop. On October 29, 2019, the Company disclosed to investors that "management concluded that our residual value estimates likely exceeded the expected future values that would be realized upon the sale of power vehicles in our fleet." As a result, Ryder significantly lowered the residual value estimates for all vehicles and incurred $177 million in additional depreciation expense in the third quarter of 2019. On this news, the Company's stock price fell, over two trading days, from $55.12 per share on October 28, 2019 to $48.44 per share on October 30, 2019: a $6.68 or 12.12% drop. Then, on February 13, 2020, during the trading day, Ryder reported that, based on the significant reductions to the residual value of its fleet, it had incurred a total of $357 million in additional depreciation expense for 2019 plus a loss of approximately $58 million on the sale of used vehicles. The Company also announced that, for 2020, it expected to incur another $275 million in depreciation charges on its trucking fleet plus an additional $20 million estimated loss on used vehicle sales. In response to these disclosures, Ryder's stock price declined 20% over two trading days, from $50.19 per share to $40.12 per share. On this news, the Company's stock price fell, over two trading days, from $50.19 per share on February 12, 2020 to $40.12 per share on February 14, 2020: a $10.07 or 20.07% drop. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Ryder's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. To view the source version of this press release, please visit https://www.newsfilecorp.com/release/58735 [GN] S. RAYS INC: Website Unaccessible to Blind Users, West Claims ------------------------------------------------------------- MARY WEST, on behalf of herself and all others similarly situated, Plaintiffs, v. S. RAYS, INC., Defendant, Case No. 1:20-cv-05181 (S.D.N.Y., July 7, 2020) is a civil rights action brought by the Plaintiff against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually impaired people. Defendant's denial of full and equal access to its website, and therefore denial of its goods and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"). Plaintiff is a visually-impaired and legally blind person who requires screenreading software to read website content using her computer. Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Because Defendant's website, www.shadyrays.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 Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. S. Rays, Inc. is a Kentucky-based sunglass and eyewear company that owns and operates the website, www.shadyrays.com.[BN] The Plaintiff is represented by: David P. Force, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: dforce@steinsakslegal.com SCHLUMBERGER TECHNOLOGY: Misclassifies Drivers, Gatson Claims ------------------------------------------------------------- CORLEANO GATSON, on behalf of himself and all others similarly situated, Plaintiff v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant, Case No. 1:20-cv-00621 (D. N.M., June 26, 2020) is a class action complaint brought against Defendant for its alleged violation of the New Mexico Minimum Wage Act. Plaintiff was employed by Defendant from August 2017 to March 2018 as a driver transporting chemical tankers and neumatic tankers in New Mexico. According to the complaint, Defendant classified Plaintiff and the class members as being exempt from overtime beginning in January 2018. Although Plaintiff and the class members normally worked more than 40 hours in a week, they were not paid at the rate of time and one-half of their hourly rate of pay for all hours worked over 40. Plaintiff claims that he was not paid for all hours that he worked because Defendant failed to include all of the time spent working as compensable time such as the time spent performing the pre-trip on the truck, driving to the sand facility, unloading of the truck at the frac sites, and post-trip on the truck. Schlumberger Technology Corporation operates an oil field services company. [BN] The Plaintiff is represented by: Don J. Foty, Esq. HODGES & FOTY, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Tel: (713) 523-0001 Fax: (713) 523-1116 Email: dfoty@hftrialfirm.com - and – Ricardo J. Prieto, Esq. Melinda Arbuckle, Esq. SHELLIST LAZARS SLOBIN, LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Tel: (713) 621-2277 Fax: (713) 621-0993 Email: rprieto@eeoc.net SENIOR CARE: Court Certifies Caregivers Class in Moss FLSA Suit --------------------------------------------------------------- In the class action lawsuit styled as ANITA MOSS, on behalf of herself and all others similarly situated v. SENIOR CARE CAROLINAS, PLLC; INNOVATIVE HEALTHCARE MANAGEMENT, LLC; and MELISSA LYNCH, Case No. 3:20-cv-00137-FDW-DCK (W.D.N.C., Filed March 04, 2020), the Hon. Judge Frank D. Whitney entered an order: 1. granting the Plaintiff's motion for collective action FLSA certification on behalf of: "all current and former employees of Defendants who work or have worked for Defendants as designated caregivers anytime during the three-year period preceding the filing of the Complaint in this action"; 2. granting case to proceed with respect to the Fair Labor Standards Act claims as a collective action under 29 U.S.C section 216(b). 3. appointing the Plaintiff's counsel to serve as counsel for the collective; and 4. directing the Defendant to provide the Plaintiff's counsel the last known names, addresses, dates of employment, and email addresses of potential opt-in plaintiffs in a computer readable format of all putative collective who worked for Defendant at any time from March 4, 2017, to present within 14 days of this Order. The Court finds Plaintiff clearly alleges in her amended complaint, supplemental brief, and declaration that all dedicated care official employees have the same job duties, are non-exempt hourly workers, were required to work 24-four hour shifts, frequently worked 40 hours or more in one work week, were subject to the same policy of deducting sleep time from hours worked without a written agreement, were not provided sleeping facilities, and were not correctly paid overtime. The Plaintiff has therefore proffered minimal evidence, as required by the lenient standard, to show that she is similarly situated to the proposed collective. The Defendant's arguments that the Plaintiff provided vague allegations with meager factual support is unfounded based on the pleadings and declaration. Further, the Defendant's argument that individualized factual inquiries are necessary for some potential opt-in plaintiffs due to differences in scheduling, their work location, and required overtime is not enough to thwart conditional certification at this stage. Thus, the Court will conditionally certify the collective. The Plaintiff alleges that the Defendants violated the Fair Labor Standards Act, the North Carolina Wage and Hour Act, and Title VII of the Civil Rights Act of 1964. Senior Care provides assisted living homes that are located in residential housing communities. Innovation Healthcare is a health compliance and operational educational company.[CC] SIRAH 1720 LLC: Fails to Pay Minimum Wage, Alegria Claims --------------------------------------------------------- JOSE MIGUEL ALEGRIA SANTANA, individually and on behalf of all others similarly situated, Plaintiff v. SIRAH 1720 LLC (D/B/A MARKET FRESH SUPERMARKET); AHMED ABDO SALEM (AKA MOHAMED); and SAMMY DOE, Defendants, Case 1:20-cv-02867 (E.D.N.Y., June 29, 2020) seeks to recover from the Defendants unpaid minimum and overtime wages under the Fair Labor Standards Act. The Plaintiff Alegria was employed by the Defendants as deli worker. Sirah 1720 LLC owns, operates, or controls a supermarket, at Brooklyn, NY, under the name Market Fresh Supermarket. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 SLACK TECHNOLOGIES: Court Narrows Claims in Pirani Securities Suit ------------------------------------------------------------------ In the case, FIYYAZ PIRANI, Plaintiff, v. SLACK TECHNOLOGIES, INC., et al., Defendants, Case No. 19-cv-05857-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California granted in part and denied in part the the Defendants' motion to dismiss the Amended Class Action Complaint. The securities class action is brought by Lead Plaintiff Pirani against Slack and the other named Defendants. The Plaintiff purchased 30,000 shares of Slack's Class A common stock at $40/share on June 20, 2019, the first day of Slack's public listing, and approximately another 220,000 shares at various prices from June 21 to Sept. 9, 2019. The Plaintiff brings the case on behalf of a class consisting of all persons and entities that purchased or otherwise acquired Slack common stock pursuant to and/or traceable to the Offering Materials. Slack is a San Francisco-based software company that offers a cloud-based collaboration and productivity platform for workspace computing. The other named Defendants include CEO Stewart Butterfield, CFO Allen Shim, and CAO Brandon Zell; and Board of Directors members Andrew Braccia, Edith Cooper, Sarah Friar, John O'Farrell, Chamath Palihapitiya, and Graham Smith. The complaint also names as Defendants three venture capital firms: Accel, which appointed defendant Braccia to the Board; Andreessen Horowitz, which appointed Defendant O'Farrell to the Board; and Social+Capital, which appointed Defendant Palihapitiya to the board ("VC Defendants"). The VC Defendants collectively held more than 47% of the Company's voting power and included 3 members of the Board at the time of the Offering. They caused Slack to effectuate the Offering. They also caused Slack to indemnify them from any liabilities arising from the Securities Act of 1933 and the Securities Exchange Act of 1934 and to obtain and maintain a directors and officers insurance policy for them. Upon Slack's listing, the VC Defendants sold more than 12.5 million shares for gross proceeds of more than $484 million. Slack's Class A common stock shares began trading on the New York Stock Exchange ("NYSE") on June 20, 2019 under the ticker symbol "WORK." Slack did not take the traditional route of an Initial Public Offering ("IPO"), in which a company will offer a certain amount of new and/or existing shares to the public to help raise additional capital for company operations and expansion. Instead, Slack opted for a direct listing: no new shares were issued, but insiders and early investors of the company were able to sell their preexisting shares to the public. Because these shares were not subject to a lockup period as in an IPO, they were available for sale immediately upon Slack's listing. In preparation for the direct listing, Slack filed a Form S-1 resale shelf registration statement and a Form 424B4 prospectus with the Securities Exchange Commission ("SEC"). Slack, with Defendants Butterfield and Shim, also hosted an 'investor day' in New York City to generate investor interest on May 13, 2019. The contents of the Offering Materials applied to "up to 118,429,640" shares offered for resale to the public. The Offering Materials noted that additional shares were available for resale and exempt from registration pursuant to SEC Rule 1443: approximately 164,932,646 shares of common stock immediately after Slack's registration. The Plaintiff alleges that he and the other class members suffered losses to the value of their purchased shares as a result of misstatements or omissions of material facts in the Offering Materials. These include statements regarding service outages and Slack's Service Level Agreements ("SLAs") in the case of such outages; competition from Microsoft Teams; scalability and purported key benefits; and growth and growth strategy. The Plaintiff alleges that the Offering Materials touted various "key benefits to users, teams, and organizations" and that Slack built its technology infrastructure using a distributed and scalable architecture on a global scale, and that these statements implied that the Slack App was a market leader with unique advantages over its competitors and that the Company possessed the ability to scale up its services to reach more lucrative enterprise customers. Slack also stated that it had a differentiated go-to-market strategy, comprised of a customer engagement model and expansion within larger organizations, and implied this was responsible for rapid growth high customer engagement and revenue growth and decreasing net losses from 2017 through 2019. But Slack's growth was slowing down in several aspects, including its key metric, daily active users. The Defendants move to dismiss all claims under Fed. R. Civ. P. 12(b)(6). They argue that the Plaintiff cannot plead standing under Section 11 because of the case law interpreting that statute holding that a plaintiff's purchased shares must be traced to the defective registration statement, which is impossible to do in the case. The Defendants further argue that Section 11 damages cannot be established in the case of a direct listing, that the Plaintiff lacks standing under the stricter privity requirement of Section 12, and that failure to state a claim under either Sections 11 or 12 necessarily obviates standing under Section 15. Lastly, they argue that the Plaintiff has failed to allege material misstatements or omissions. The Plaintiff argues that, because of the unique regulatory framework of Slack's direct listing, the case presents a matter of first impression that, if decided in the Defendants' favor, will provide a blueprint for companies to evade liability under Section 11 for filing a misleading registration statement. He contends that by structuring the Offering such that registered and unregistered shares became publicly tradeable at the same time, theDefendants attempt to take unfair advantage of the judge-made traceability requirement that arose out of cases involving successive offerings in which the Plaintiffs must show that they bought their shares in the specific offering at issue. Judge Illston finds that the phrase "such security" in Section 11 warrants the broader reading: "acquiring a security of the same nature as that issued pursuant to the registration statement." Accordingly, the Judge denies the Defendants' motion to dismiss for lack of Section 11 standing. Next, Judge Illston denies the Defendants' motion to dismiss for lack of damages under Section 11. In the NYSE rule changes as well as in the Slack Registration Statement, the unique direct listing process is accommodated by analogy to the traditional IPO pricing process. The Defendants' reliance on an overly narrow reading of Section 11's "price at which the security was offered to the public" is thus unavailing. Further, as the Plaintiff asserts in his opposition, he may pursue a value-based theory of damages, which is a fact-intensive inquiry that is not appropriate for resolution at the pleadings stage. Judge Illston also denies the Defendants' motion to dismiss for failing to state a claim under Section 12. The Judge concludes that the Plaintiff has alleged enough facts to support an active solicitation theory against the Individual Defendants. The Plaintiff alleges that all of the Individual Defendants signed the Offering Materials, that certain Defendants solicited sales at the Investor Day, and that all of the Individual Defendants were financially motivated to solicit sales. The Judge finds that Charles Schwab involved similar allegations and that he agrees that the solicitation question is "a factual question which should generally be left to the jury." The Plaintiff alleges material misrepresentations or omissions in several sets of statements concerning Slack's: (A) outages and SLAs, (B) scalable architecture, (C) competition with Microsoft, (D) key benefits, and (E) growth and growth strategy. Since the ultimate question of whether adverse facts were adequately disclosed is a mixed question to be decided by the trier of fact" and there is room for reasonable disagreement, the Judge finds that the Plaintiff's challenge to statements regarding outages and the SLAs is adequate for the pleading stage. Next, the disclosures noted that Slack may be unable to maintain service uptime for exactly the reason stated in the Sept. 4, 2019 call: "especially during peak usage times and as our user traffic and number of integrations increase." The Judge therefore grants the Defendants' motion to dismiss on this ground. The Judge finds the allegedly misleading statements immaterial because the competitive advantages of Microsoft were adequately disclosed. The Offering Materials expressly state, "Our primary competitor is currently Microsoft Corporation," and that "we expect competition to intensify in the future." Although the pleadings plausibly demonstrate that Slack was in fierce competition with Microsoft before the direct listing, and that Slack had data on its own metrics, Slack did not omit material information by failing to include data or comparisons on Microsoft's metrics. The Judge therefore grants the Defendants' motion on this ground. The Judge notes that most, if not all, of the statements quoted in Paragraph 91 would appear to be inactionable puffery. And, while he has concluded that the Plaintiff has sufficiently alleged that the risk disclosures omitted material information about the outages and the SLAs, the Judge is not persuaded by the Plaintiff's contention that Summary of Key Benefits is false or misleading simply because it described, in very general terms, the company's strengths. She therefore grants the Defendants' motion to dismiss on this ground. As with the "Key Benefits" section, the Plaintiff claims that certain information was omitted, but as the Defendants note, information about revenue growth, sales and marketing expenses, and numbers of users was disclosed either in the Business Model section or elsewhere in the Registration Statement. To the extent the Paintiff challenges statements in the "Growth Strategy" section, he has not explained how these forward-looking statements are actionable. Finally, although the Judge has concluded that the Plaintiff has stated a claim that the risk disclosures were misleading by omitting information about the outages and unique vulnerabilities posed by the SLAs, he is not persuaded that a general summary of "What Sets Us Apart"16 or even a more specific and factual description of "Our Business Model" is rendered misleading by omitting unrelated information about risks. Accordingly, she grants this aspect of the Defendants' motion. Finally, the Judge concludes that the Plaintiff's pleading is sufficient under the lenient standard of 8(a). In addition to the Plaintiff's allegations of the traditional indicia of control, he also alleges that a direct listing primarily enables the resale of existing shares by insiders and early investors such as the VC Defendants. The Plaintiff has alleged that the VC Defendants "caused Slack to effectuate" the unusual listing in order to cash out their shares. The Judge concludes that it is plausible that a factual record of control can be developed through discovery. Accordingly, he denies the Defendants' motion to dismiss for lack of Section 15 standing. Based on the foregoing, Judge Illston granted in part and denied in part the Defendants' motion to dismiss the Amended Class Action Complaint. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/4UGbEr from Leagle.com. SMILEDIRECTCLUB INC: Lucas et al. Sue Over Spam Text Messages ------------------------------------------------------------- DAWAUN LUCAS; DAVID DOMINGUEZ HOOPER; METE TASIN; and REEJAUNTE SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. SMILEDIRECTCLUB, INC.; and SMILEDIRECTCLUB, LLC, Defendants, Case No. 2:20-cv-06059 (C.D. Cal., July 7, 2020) is a class action complaint brought by the Plaintiffs for legal and equitable remedies resulting from the illegal actions of Defendants in sending automated text message advertisements to their cellular telephones and the cellular telephones of numerous other individuals across the country, in clear violation of the Telephone Consumer Protection Act. According to the complaint, all of the subject text messages sent to Plaintiffs and the members of the putative Class constituted "advertisements" or "telemarketing" messages within the meaning of the TCPA and its implementing regulations because each such message was aimed at promoting the commercial availability of Defendants' products and services and ultimately selling such products and services. Defendants offered such products and services for sale to Plaintiffs and the members of the putative class for the purpose of deriving commercial profit from the purchase of any such products or services ultimately made by the consumers to whom the subject text messages were directed. Defendants actually transmitted the text messages at issue in this case to Plaintiffs and all other putative Class members in an automated fashion and without human intervention, with hardware and software that received and stored telephone numbers and then automatically dialed such numbers. The automatic telephone dialing technology utilized by or on behalf of Defendants to transmit the subject text messages to Plaintiffs and the members of the Class was provided by Twilio, which maintains its corporate headquarters and principal place of business in, and operated the technology implicated in this case from (and thereby transmitted the subject text messages from), its headquarters and principal place of business in California. SmileDirectClub, Inc. and SmileDirectClub, LLC collectively own and operate a "teledentistry" company that does business online and at over 300 brick-and-mortar retail locations across the United States.[BN] The Plaintiffs are represented by: Frank S. Hedin, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Telephone: (415) 766-3534 Facsimile: (415) 402-0058 E-mail: fhedin@hedinhall.com - and - L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com SNAP INC: Appeals Certification Order in Erickson Securities Suit ----------------------------------------------------------------- Defendants Snap Inc., et al., filed an appeal from the District Court's ruling granting class certification in the lawsuit styled James Erickson, et al. v. Snap Inc., et al., Case No. 2:17-cv-03679-SVW-AGR, in the U.S. District Court for the Central District of California. On November 20, 2019, after receiving briefing, the District Court abandoned the issue-class possibility and granted the Plaintiffs' motion in its entirety, certifying a class of "all purchasers of Snap common stock between March 2, 2017 and August 10, 2017 . . . whose shares were issued under Snap's IPO Registration Statement." The appellate case is captioned as SNAP INC., et al., Petitioners v. JAMES ERICKSON, et al., Case No. 19-80157, in the United States Court of Appeals for the Ninth Circuit. The Defendants want the Appeals Court to determine whether: 1. the Plaintiffs' Securities Act class claims are time-barred under China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018), because they did not bring any claims or seek to serve as class representatives until after the District Court denied a motion for class certification and the Securities Act's one-year statute of limitations had expired; 2. contrary to decisions of the Fifth Circuit and other district courts in this circuit, the "statistical tracing" theory satisfies Section 11's "traceability" requirement; and 3. a federal class action filed when the defendant's stock was trading above the IPO price involves any recoverable damages and is "superior" to nearly identical, later-filed state-court class actions that do not share that fatal defect concerning damages. As previously reported in the Class Action Reporter, the lawsuit is a federal securities class action on behalf of a class consisting of all persons, who purchased or otherwise acquired Snap securities, pursuant and traceable to Snap's alleged false and misleading Registration Statement and Prospectus, issued in connection with the Company's initial public offering on or about and on the open market between March 2, 2017, and May 15, 2017, both dates inclusive, seeking to recover damages caused by the Defendants' violations of the Securities Act. Snap Inc. is a camera company that provides technology and social media services.[BN] Lead Plaintiff Snap Shareholder Group is represented by: Jennifer L. Joost, Esq. Stacey M. Kaplan, Esq. Jenny L. Paquette, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP One Sansome Street, Suite 1850 San Francisco, CA 94104 Telephone: 415.400.3009 E-mail: jjoost@ktmc.com skaplan@ktmc.com jpaquette@ktmc.com The Defendants-Petitioners are represented by: Michael W. McConnell, Esq. Boris Feldman, Esq. Ignacio E. Salceda, Esq. WILSON SONSINI GOODRICH & ROSATI, P.C. 650 Page Mill Road Palo Alto, CA 94304 Telephone: 650-849-3135 E-mail: MMcConnell@wsgr.com boris.feldman@wsgr.com isalceda@wsgr.com - and - Paul D. Clement, Esq. George W. Hicks, Jr., Esq. KIRKLAND & ELLIS LLP 1301 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 389-5000 E-mail: paul.clement@kirkland.com george.hicks@kirkland.com SONENDO INC: Fite Seeks Conditional Class Certification ------------------------------------------------------- In the class action lawsuit styled as GARRY MICHAEL FITE, et al., individually and on behalf of those similarly situated, v. SONENDO, INC., Case No. 8:20-cv-00833-DOC-ADS (C.D. Cal., Filed April 30, 2020), the Plaintiff asks the Court for an order: 1. granting the Plaintiffs' motion for conditional certification; 2. approving the form and method of notice as proposed by Plaintiffs; 3. directing the Defendant to produce to the Plaintiffs' counsel, within 14 days of the Court's Order, a complete class list in readable electronic format that includes: (i) full name(s); (ii) job title(s); (iii) last known mailing address(es) and telephone number(s); (iv) last known email address(es); (v) dates of employment; and (vi) the last four digits of Social Security Number(s); 4. directing dissemination of notice as proposed by the Plaintiffs; and 5. equitably tolling the statute of limitations for potential opt-in plaintiffs between the date of the Complaint and the date the Plaintiffs' originally disseminate notice. The Plaintiffs -- former Field Service Engineers employed by Defendant -- filed their complaint against Sonendo alleging Defendant misclassified them as exempt from overtime compensation under the Fair Labor Standards Act and failed to pay them overtime. Sonendo develops dental surgery equipment. The Company specializes in novel technology for the cleaning of root canals. Sonendo operates out of Laguna Hills, California.[CC] The Plaintiffs are represented by: G. Samuel Cleaver, Esq. LAW OFFICES OF G. SAMUEL CLEAVER 5670 Wilshire Blvd., 18th Floor Los Angeles, CA 90036 Telephone: (213) 568-4088 Facsimile: (213) 568-4105 E-mail: sam@gscleaverlaw.com - and - Kevin J. Dolley, Esq. James C. Keaney, Esq. LAW OFFICES OF KEVIN J. DOLLEY, LLC 2726 S. Brentwood Blvd. St. Louis, MO 63144 Telephone: (314) 645-4100 Facsimile: (314) 736-6216 E-mail: james.keaney@dolleylaw.com kevin@dolleylaw.com STAATS CONSTRUCTION: Workers Slam Missed Breaks, Missing Paystubs ----------------------------------------------------------------- Antonio Ramos Zambrano, Antonio Montes, Roberto Castillo, Gary Hamilton, Rafael Ramos, Edgar Gudino, Jorge Gonzalez, Edmundo Garfio and Alvaro Gonzalez, on behalf of themselves and all others similarly situated and the general public, Plaintiffs, v. Staats Construction and Does 1 through 100, Defendants, Case No. 20STCV16785 (Cal. Super., May 1, 2020), seeks unpaid wages and interest thereon for failure to pay for all hours worked and minimum wage rate, failure to authorize or permit required meal periods, failure to authorize or permit required rest periods, statutory penalties for failure to provide accurate wage statements, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code, Unfair Competition Law of the California Business and Professions Code and applicable Industrial Welfare Commission Wage Orders. STAATS Construction is a public works contractor which conducts business as a licensed construction contractor for general construction, underground pipe-laying and repair including water, sewer, and storm drains on publicly funded projects including but not limited to municipal water districts and related agencies. Plaintiffs worked as Pipefitters and Operators for STAATS. [BN] Plaintiff is represented by: Richard E. Donahoo, Esq. Sarah L. Kokonas, Esq. Judith L. Camilleri, Esq. William E. Donahoo. Esq. DONAHOO & ASSOCIATES 440 West First Street, Suite 101 Tustin, CA 92780 Telephone: (714) 953-1010 Facsimile: (714) 953-1777 Email: rdonahoo@donahoo.com skokonas@donahoo.com camilleri@donahoo.com wdonahoo@donahoo.com SUPER ECONOMIC: Faces Pena Wage-and-Hour Suit in E.D.N.Y. --------------------------------------------------------- GENARO PENA, individually and on behalf of all others similarly situated, Plaintiff v. SUPER ECONOMIC ONE WAY SUPERMARKET CORP. and EDUARDO LEONARDO, Defendants, Case No. 1:20-cv-03060 (E.D.N.Y., July 9, 2020) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law by failing to compensate the Plaintiff and all others similarly situated supermarket workers the required statutory minimum wages and overtime premium pay for all hours worked in excess of 40 hours in a workweek. The Plaintiff was employed by the Defendants as a deli man from roughly 2012 through June 2020. Super Economic One Way Supermarket Corp. is a supermarket business with a principal place of business at 104-21 Glenwood Road, Brooklyn, New York. [BN] The Plaintiff is represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Telephone: (212) 563-9884 E-mail: dstein@samuelandstein.com TARGET CORP: Wage & Hour Class Action Remanded to State Court ------------------------------------------------------------- Bloomberg Law reports that Target Corp. lost its bid to keep a distribution-center employee's proposed class action alleging California wage violations from being remanded to state court, despite its contention that the federal district court has jurisdiction under the Class Action Fairness Act because there's at least $5 million at stake based on payroll, time-punch, and hours worked data, as well as attorneys' fees. Target's amount-in-controversy calculations unreasonably assumed a 32% rate for attorneys' fees based on a similar consolidated wage and hour class action against it in which that percentage in attorneys' fees was awarded at settlement, the court said. [GN] TD BANK: Heller Alleges Illegal Telemarketing Practices ------------------------------------------------------- JONATHAN HELLER, individually and on behalf of all others similarly situated, Plaintiff, vs. TD BANK US HOLDING COMPANY DBA TD BANK USA, N.A., and DOES 1 through 10, inclusive, Defendant, Case No. 2:20-cv-06063 (C.D. Cal., July 8, 2020) is an action brought by the Plaintiff, individually and on behalf of all others similarly situated, seeking damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act. Beginning in or around January 2019, Defendant contacted Plaintiff on Plaintiff's cellular telephone number ending in -6271, in an attempt to collect a debt from Plaintiff. Defendant contacted or attempted to contact Plaintiff from multiple telephone numbers confirmed to be Defendant's number. According to the complaint, Defendant did not possess Plaintiff's "prior express consent" to receive call using an automatic telephone dialing system or an artificial or prerecorded voice on its cellular telephones pursuant to 47 U.S.C. Section 227(b)(1)(A). Defendant was attempting to collect on a debt that Plaintiff did not owe and it is suspected they were calling the wrong debtor and calling the wrong number. TD Bank US Holding Company dba TD Bank USA, N.A operates as a holding company. The Bank, through its subsidiaries, provides consumer loans, commercial loans, mortgage loans, deposit products, trust services, Internet banking, credit cards, insurance, and investment management services.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com TEVA CANADA: Faces Generic Drug Price-Fixing Class Action --------------------------------------------------------- Urszula Wojtyra, Esq. -- uwojtyra@smartbiggar.ca -- of Smart & Biggar, in an article for JDSupra, reports that on June 3, 2020, a proposed class action was commenced against over 50 generic drug manufacturers. The claim alleges that the generic drug manufacturers violated the Competition Act by conspiring to allocate the market, fix prices and maintain the supply of generic drugs from 2012 to present, and claims damages or compensation of $2.75 billion. The action is brought on behalf of class members who purchased generic drugs in the private sector, either through private drug plans or paying cash. The claim alleges that the defendants conspired to allocate the market for generic drugs by agreeing whether to sell certain drugs, and by fixing the market shares and prices of drugs. The claim references an ongoing investigation in the United States into price fixing, bid rigging and market allocation in the generic pharmaceutical industry, in which certain manufacturers have entered guilty pleas. The Statement of Claim is available at https://is.gd/RMnOkn [GN] THYMES LLC: Cruz Sues in S.D. New York Alleging Violation of ADA ---------------------------------------------------------------- A class action lawsuit has been filed against The Thymes, LLC. The case is styled as Shael Cruz, on behalf of himself and all others similarly situated v. The Thymes, LLC, Case No. 1:20-cv-05136 (S.D.N.Y., July 6, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Thymes, LLC, retails cosmetics and fragrance products. The Company offers bar soaps, bath oil, creams, hand lotion and cream, candles, and other products.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal TIM HORTONS: Faces Class in Quebec Over App LocationTracking ------------------------------------------------------------ Financial Post reports that Tim Hortons is facing a class-action lawsuit in Quebec over data collection issues in the company's mobile ordering app, filed a day after four privacy watchdogs announced a joint investigation into the company's overreach. The court application filed by Montreal-based law firms LPC Advocat Inc. and Consumer Law Group on June 30, cites reporting by the Financial Post from earlier in June, which revealed the Tim Hortons app was logging users' location in the background when the app wasn't open. The app was streaming GPS location data to Radar Labs Inc., an American company which analyzes location data to infer where users live and work, and logs a person's visits to one of Tim Hortons' competitors, such as Starbucks Corp. or McDonald's Corp. Immediately after privacy commissioners for the federal government, Quebec, Alberta and British Columbia announced their joint investigation on June 29, Tim Hortons said in a statement that it has discontinued its practice of tracking users' location when the app is not open. "It certainly seems to be an implicit admission on their part that what they were doing was wrong," said Joey Zukran, a consumer protection lawyer with LPC Advocat Inc., which specializes in class-action litigation. Zukran said the lead plaintiff is a Montreal resident who works in the IT sector. He was a user of both the Tim Hortons and Burger King apps, and since both of those chains are owned by parent company Restaurant Brands International Inc., he was likely being tracked twice. "I would say he's a tech-savvy guy, from my conversations with him. He was a customer of Tim Hortons, a customer of Burger King. He uses the app often . . . learning everything that transpired came as a big shock to him," Zukran said. Zukran said that simply stopping the practice of background location tracking isn't enough, because Tim Hortons' parent company appears to have been tracking the lead plaintiff since last year, and the damage is already done. "Let's see what they do with the information. Are they going to destroy it? Are they going to use it?" he said. "They've gained a valuable database of information and behaviour patterns and activities of individuals. So are they now just going to throw that out, or are they going to profit from it? My guess is the latter." Tim Hortons' chief corporate officer Duncan Fulton said in an emailed statement the company did not have any comment on the class-action lawsuit, and reiterated that it had discontinued background location tracking, although the app may still record user location when it's open. "Since Tim Hortons launched our mobile app, our guests always had the choice of whether they share location data with us, including ‘always' sharing location data -- an option offered by many companies on their own apps," Fulton said. Ostensibly, the lawsuit is asking for a $100 penalty, but the key point, according to Consumer Law Group lawyer Jeff Orenstein, is that they are asking the court to award punitive damages. In many cases of privacy violations, it's difficult to sue because litigants can't put a dollar figure on the harm they have suffered. But the Quebec Charter of Rights and Freedoms makes privacy a protected right, and that simplifies the case, according to Orenstein. "A Quebec Charter violation gets you punitive damages where you can show that the interference was with your protected rights," he said. "The punitive damages is the more simplistic route, but for that, you really have to show that the defendants intended to interfere with your privacy rights--which is what we allege in this case." Orenstein said most privacy and data cases in Canada have been focused on breaches where companies allowed private information to be leaked or stolen by hackers. But litigation around issues relating to data and privacy could become more common, depending on how the courts respond in this case and future cases. "If the courts realize how important privacy is, and attribute major dollar figures to it, then yes, this litigation will continue," Orenstein said. "And it will be brought to the attention of these companies which will have major business decisions to make in the future--whether it's worth the risk . . . If the courts give a slap on the wrist or nothing at all, then you're not going to see that many cases." [GN] TOM'S OF MAINE: Coburn Disputes "All Natural" Label on Toothpaste ----------------------------------------------------------------- Susan Coburn, on behalf of herself and all others similarly situated, Plaintiffs, v. Tom's of Maine, Inc. and Does 1 through 10, inclusive, Defendants, Case No. 20-cv-01036 (C.D. Cal., June 8, 2020), seeks redress for violation of California's Consumer Legal Remedies Act, unfair business practices, violations of false advertising laws and fraud. Tom's has sold and continues to sell and market "Tom's Toothpaste" which it purports as "all natural" despite containing a chemically-processed ingredient, xylitol and sodium lauryl sulfate, asserts the complaint. [BN] Plaintiffs are represented by: Aashish Y. Desai, Esq. Adrianne De Castro, Esq. DESAI LAW FIRM, P.C. 3200 Bristol St., Suite 650 Costa Mesa, CA 92626 Telephone: (949) 614-5830 Facsimile: (949) 271-4190 Email: aashish@desai-law.com adrianne@desai-law.com TURNCO ENTERPRISES: Misclassifies Oilfield Workers, Daigle Claims ----------------------------------------------------------------- JORDAN DAIGLE, individually and on behalf of all others similarly situated, Plaintiff v. TURNCO ENTERPRISES, LLC., and MEWBOURNE OIL CO., Defendants, Case No. 2:20-cv-00652 (D. N.M., July 2, 2020) is a collective action complaint brought against Defendants for their alleged illegal pay practices in violations of the Fair Labor Standards Act and the New Mexico Minimum Wage Act. Plaintiff was employed by Defendants as an Oilfield Worker. According to the complaint, Plaintiff and the Putative Class Members routinely worked in excess of 40 hours per workweek. Because they were misclassified by Defendant as independent contractors, Defendant failed to pay them overtime of at least one and one-half times their regular rates for all hours worked in excess of 40 hours per workweek. Turnco Enterprises, LLC is an oilfield services company operating throughout the U.S. Mewbourne Oil Company is an oil and gas producer in the Anadarko and Permian Basins of Texas, Oklahoma and New Mexico. [BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 Email: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com UBER TECHNOLOGIES: Baker McKenzie Discusses Drivers' Suit Ruling ---------------------------------------------------------------- George Avraam, Esq., Jennifer Bernardo, Esq., and Shyama Talukdar, Esq., of Baker McKenzie, in an article for Lexology, report that on June 26, 2020, the Supreme Court of Canada released its decision in the highly publicized case of Heller v Uber Technologies Inc. The case arises from a Toronto-based UberEATS driver's effort to bring a $400-million class action against Uber, on behalf of Uber and UberEATS drivers in Ontario. Mr. Heller alleged that Uber violated the Employment Standards Act, 2000 by treating Uber and UberEATS drivers as independent contractors and failing to provide them with employment-related entitlements like minimum wage, vacation, and overtime pay. The issue before the Court was the validity of an arbitration clause in a standard form service agreement. The agreement was governed by the law of the Netherlands and required drivers to litigate their disputes with Uber in the Netherlands. Uber required all of its prospective drivers to enter into this agreement by having them accept the terms through their app. The Court ruled in favor of the drivers, finding that the arbitration clause was unconscionable because its terms effectively made it effectively impossible for the drivers to arbitrate their claims. As a result of the decision, the class action can proceed to a certification motion. Key Takeaways Employers with arbitration clauses in their employment contracts or independent contractor agreements must revisit their agreements to determine whether they continue to be valid in Canada. Based on the Court's decision, employers should not have arbitration clauses that require employees to pay substantial upfront fees to initiate the process. Employers should also consider whether they should pay the administration fees required for private arbitration, subject to the company's right to a refund of those fees if it is successful in arbitration. If employers choose to keep arbitration clauses, they should ensure that in-person hearings remain local. The Supreme Court did not address the Ontario Court of Appeal's finding that the arbitration clause in the Uber service agreement was also invalid because it contracted out of the ESA. This means that the Ontario Court of Appeal's decision that an arbitration agreement that prevents an employee from using the ESA's enforcement mechanisms is unlawful, at least in Ontario. As a result, employers must also review the arbitration clauses in their employment contracts to ensure they do not contract out of the enforcement mechanisms of the ESA. Since the Court of Appeal allowed Mr. Heller to challenge the arbitration clause on the basis of the ESA, even though Uber viewed him as an independent contractor, employers should review the arbitration clauses in their independent contractor agreements as well. Employers who use standard form or boilerplate employment contracts or individual independent contractor agreements, even without arbitration clauses, must take particular note of the Supreme Court's finding that the arbitration clause was unconscionable because a) there was bargaining power inequity between the parties; b) the arbitration clause was part of a standard form contract that could not be negotiated; and c) the substantive terms of the clause were harsh and unfair. The Court also commented that even independent legal advice may not be a valid defence if someone makes an unconscionability claim--such advice must be effective advice. The Court's findings and reasoning will result in more litigation about whether the terms of employment contracts, particularly clauses that limit post-termination entitlements, are valid. Background In early 2018, the Ontario Superior Court of Justice stayed the Uber drivers' proposed class action in favour of arbitration in the Netherlands under the service agreement. The Ontario Court of Appeal overturned the lower court's decision. Based on the presumption that Uber employed the drivers, the Court found that Uber's arbitration clause contracted out of Ontario's ESA. The Court found that being forced to arbitrate a complaint against Uber in the Netherlands deprives an employee of the benefit of making a complaint to, and seeking an investigation by, the Ministry of Labour under section 96(1) of the ESA. The Court decided that this benefit was a guaranteed employment standard and the parties could not waive this right. Separately, the Court held that the arbitration clause was invalid because it was unconscionable, in part because Uber drivers have no avenue for resolving disputes in Ontario and are required to incur approximately $15,000.00 USD to initiate an arbitration proceeding in the Netherlands. The Supreme Court of Canada's Decision By a large majority, the Supreme Court accepted Mr. Heller's claim that Uber's arbitration clause in Ontario was unconscionable because there was an inequality of bargaining power between Uber and its drivers, resulting in an "improvident bargain" for the drivers. While courts are normally expected to defer to arbitrators on the question of whether or not an arbitration clause is valid, the majority of the Court found that courts can depart from this general rule in limited circumstances, including where doing so may raise accessibility issues. For example, if the cost of starting arbitration is significant or if the contract includes a choice of law clause that circumvents mandatory local policy, a court may justified in deciding the validity issue on its own. The majority of the Court declined to consider whether the agreement was also invalid because Uber had contracted out of the ESA. In concurring reasons, Justice Brown concluded that the arbitration clause was invalid because it undermined the rule of law and was contrary to public policy, not because it was unconscionable. In Justice Brown's view, the majority of the Court vastly expanded the scope of the doctrine of unconscionability, without providing any meaningful guidance as to its application. Justice Brown warned that charting such a course will serve only to compound the uncertainty that already plagues the doctrine, and introduce uncertainty to the enforcement of contracts generally. In dissenting reasons, Justice Côté found that consensual agreements should be binding, but also said Uber's agreement with drivers should be amended and that Uber should advance the filing fees to enable Uber drivers to initiate arbitration proceedings. Justice Côté was the only justice to address the ESA issue, finding that it was neither inconsistent with the ESA nor contrary to public policy. [GN] UBER: Judge Trims Drivers' Sick Leave Claim from Class Action ------------------------------------------------------------- Law360 reports that a California federal judge on June 30 trimmed Uber drivers' sick leave claim from a putative class action alleging the ride-hailing giant deprived drivers of benefits by misclassifying them as independent contractors, but declined to dismiss other claims and gave drivers a chance to bolster the sick leave allegation. [GN] UNITED STATES: ICE Unlawfully Jails Migrant Children, Judge Finds ----------------------------------------------------------------- Spencer S. Hsu of the Washington Post reports that a federal judge ruled that U.S. Immigration and Customs Enforcement has unlawfully transferred thousands of unaccompanied children who turned 18 to adult detention facilities without considering alternatives, in violation of a 2013 law. U.S. District Judge Rudolph Contreras of Washington, D.C., said he will order changes "in the near future" after a bench trial in a class-action lawsuit brought in March 2018 on behalf of immigrant teenagers by the National Immigrant Justice Center (NIJC). Contreras found that ICE does not train field offices to search for or select less restrictive options than contractor or ICE prisons and jails for minors aging out of refugee resettlement facilities, and in fact guides officers to act contrary to a law protecting trafficking victims. As a result, the judge ruled, many officers choose not to review minors' files, contact group homes or shelters, or respond to their attorneys suggesting alternatives. Many of ICE's largest field offices "nearly automatically" send minors to adult jails, even when in extreme cases their parents in the United States or other sponsors would take them, the judge wrote. "These are not the decisionmaking processes that Congress required" in the Trafficking Victims Protection Reauthorization Act or federal rulemaking law, Contreras wrote in a 180-page opinion. "By failing to make decisions in the way Congress dictated, and based on the factors Congress identified as relevant, ICE fails to fulfill its obligations under the statute." The Justice Department did not have a comment, spokeswoman Alexa Vance said. In a statement by plaintiffs, pro bono lead counsel Steve Patton of Kirkland & Ellis said, "This is a great victory for thousands of current and future unaccompanied immigrant children who turned 18 in government custody. We could not be happier with the court's thorough and well-reasoned decision." Co-counsel and NIJC senior attorney Gianna Borroto added that the decision "affirms that unaccompanied immigrant children are a uniquely vulnerable group that Congress sought to protect." "As the court recognized, ICE's practice of systematically jailing children on their 18th birthday violates these important protections under the law," Borroto said. AD Attorneys in an 18-day bench trial before Contreras that ended Jan. 15 presented ICE's data showing that many field offices were automatically sending 18-year-olds to contractor or ICE jails without considering safer or more-appropriate options, according to the judge's opinion. The plaintiffs found the most decisive factor in whether 18-year-olds are released or jailed is which ICE field office makes the decision, not any condition the law requires ICE to consider, according to court filings. Miami, El Paso, Houston, Los Angeles, Phoenix and New York reported higher than average detention rates. ICE records indicate the agency detained 1,531 youth from January 2018 to late May 2019; about 100 18-year-olds were recently moved into ICE custody, plaintiffs estimated. The NIJC asked the court to consider appointing a third-party monitor to oversee compliance and to order ICE to strengthen training and supervision of field officers. The center also asked the court to order ICE to report data in real time; deepen contacts with sponsors, group homes and shelters; and direct field offices to use alternatives such as releasing youth on their own recognizance or on bond, under supervision or conditions including electronic monitoring. In April 2018, Contreras entered a preliminary injunction for the case's two individual plaintiffs, both from Honduras. Wilmer Garcia Ramirez came to the United States alone in 2017 when he was 17 to escape forced labor. When he turned 18, ICE sent him to the Eloy Detention Center in Arizona even though a family friend was willing to sponsor him, the lawsuit asserted. The other individual plaintiff, Sulma Hernandez Alfaro, came to the United States alone in 2016 and was taken by ICE when she turned 18 in 2018 to Port Isabel Detention Center in Harlingen, Tex., even though a shelter had agreed to accept her, the suit said. After the court's order, Garcia Ramirez was sent to stay with an uncle in Alabama and Hernandez Alfaro won asylum, the judge's opinion stated. The court in August 2018 granted class-action status to all "age-outs" - former unaccompanied alien children who are detained by ICE or who will be detained because they have turned 18 without the agency considering alternative placements. ICE tried to decertify the class last year, but its request was denied after it revealed months later that it failed to track approximately 1,500 age-outs from April 2016 to May 2019, according to the NIJC. The center said ICE data showed that the rate at which the agency transferred unaccompanied 18-year-olds it accepted from the Office of Refugee Resettlement into adult detention facilities dropped by half within months of the court's class-action certification. However, the group expressed concern that no data has been shared in recent months, as the Trump administration has delayed Office of Refugee Resettlement releases to ICE, citing the coronavirus pandemic. [GN] UNITED STATES: Monk Appeals Ruling in Veterans' Benefits Suit ------------------------------------------------------------- Claimants Conley F. Monk, Jr., et al., filed an appeal from a court ruling entered in their lawsuit styled CONLEY F. MONK, JR., TOM COYNE, WILLIAM DOLPHIN, JIMMIE HUDSON, SAMUEL MERRICK, LYLE OBIE, STANLEY STOKES, Claimants-Appellants v. ROBERT WILKIE, Secretary of Veterans Affairs, Respondent-Appellee, Case No. 2020-1305, in the United States Court of Appeals for the Federal Circuit. As previously reported in the Class Action Reporter, the case involved an individual Vietnam veteran, who suffered from service-connected illnesses and sought to certify a class of those like him, who had been denied disability benefits. The Veterans Courts through which such litigation must proceed held that they lacked authority to certify a class. The Federal Circuit court reversed the Veterans Court decision, finding that such a court does indeed have the authority "to certify a class for a class action and to maintain similar aggregate resolution procedures," and remanded the case for further proceedings in the lower court consistent with that finding. Mr. Monk's action in seeking class treatment was based on further allegations that the cases of members of the proposed class shared questions of law and fact, including whether the VA delays in rendering disability benefits claim decisions constituted a violation of the veterans' due process rights. The Veterans Court rejected the request for class treatment, and Mr. Monk appealed to the Federal Circuit Court. In this matter, the Petitioners argue that VA's delays in deciding their appeals under the legacy system have been unreasonable and a violation of due process rights. The appellate case is captioned as CONLEY F. MONK, JR., ET AL., PETITIONERS v. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, RESPONDENT, Case No. 15-1280, in the United States Court of Appeals for Veterans Claims.[BN] Petitioners Conley F. Monk, Jr., Tom Coyne, William Dolphin, Jimmie Hudson, Samuel Merrick, Lyle Obie, and Stanley Stokes are represented by: Elisa Alcabes, Esq. Lynn K. Neuner, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 E-mail: lneuner@stblaw.com ealcabes@stblaw.com - and - Jade Ford, Law Student Intern Arjun Mody, Law Student Intern Madison Needham, Law Student Intern Jesse Tripathi, Law Student Intern Renee Burbank, Esq. Michael J. Wishnie, Esq. VETERANS LEGAL SERVICES CLINIC Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Telephone: (203) 432-4800 E-mail: michael.wishnie@ylsclinics.org Respondents Robert L. Wilkie, Secretary of Veterans Affairs, et al., are represented by: Brent A. Bowker, Esq. DEPARTMENT OF VETERANS AFFAIRS 810 Vermont Avenue, N.W. Washington, DC 20420 Telephone: (202) 632-6909 VICTORIA BECKHAM: Cruz Sues Over Blind-Inaccessible Web Site ------------------------------------------------------------ Shael Cruz, on behalf of himself and all others similarly situated v. VICTORIA BECKHAM INC., Case No. 1:20-cv-05140 (S.D.N.Y., July 6, 2020), is brought against the Defendant for its failure to design, construct, maintain, and operate its Web site to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its Web site, http://us.victoriabeckham.com/,and therefore denial of its products and services offered thereby and in conjunction with its physical location, is a violation of the Plaintiff's rights under the Americans with Disabilities Act, according to the complaint. Because the Defendants' Web site is not equally accessible to blind and visually-impaired consumers, the Web site violates the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually-impaired and legally blind person, who requires screen-reading software to read Web site content using his computer. The Defendant is a clothing and accessories company that owns and operates the Web site, offering features, which should allow all consumers to access the goods and services, and which the Defendant ensures the delivery of throughout the United States, including New York State.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Phone: (929) 575-4175 Email: Joseph@cml.legal VITOL INC: BB&B, Rightmyer Suit Assets Gas Price Manipulation ------------------------------------------------------------- BB&B Business Group and Larry George Rightmyer II, on behalf of themselves and all others similarly situated, Plaintiffs, v. Vitol Inc., SK Energy Americas, Inc., SK Trading International Co. Ltd., David Niemann and Brad Lucas, Defendants, Case No. 20-cv-03535, (N.D. Cal., May 26, 2020), seek relief under state antitrust and consumer protection laws including for violations of the Cartwright Act and California's Unfair Competition Law. In February 2015, an explosion damaged an oil refinery complex in Torrance, California thus causing an unexpected undersupply of refined gasoline. Vitol, SK Energy Americas and SK Trading International negotiated large contracts to supply gasoline and gasoline blending components for delivery in California in excess of more than 10 million gallons. BB&B Business Group Larry George Rightmyer II purchased fuel at retail in California during the said period. They claim that Vitol and SK manipulated the spot market price for gasoline for profit. [BN] The Plaintiff is represented by: Whitney E. Street, Esq. BLOCK & LEVITON LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (415) 968-1852 Fax: (617) 507-6020 Email: wstreet@blockesq.com - and - Gregory S. Asciolla, Esq. Karin E. Garvey, Esq. Domenico Minerva, Esq. Robin A. van der Meulen, Esq. Ethan H. Kaminsky, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: gasciolla@labaton.com kgarvey@labaton.com dminerva@labaton.com rvandermeulen@labaton.com ekaminsky@labaton.com VOLKSWAGEN GROUP: Pitts Sues Over Start/Stop Defect in Vehicles --------------------------------------------------------------- MICHAEL PITTS, individually and on behalf of all others similarly situated, Plaintiff v. VOLKSWAGEN GROUP OF AMERICA, INC. and AUDI AG, Defendants, Case No. 1:20-cv-00768 (E.D. Va., July 9, 2020) is a class action against the Defendants for fraudulent concealment, breach of contract, breach of implied warranty of merchantability, breach of covenant of good faith and fair dealing, and violations of the Magnuson-Moss Warranty Act, the Virginia Consumer Protection Act, and the Florida Deceptive & Unfair Trade Practices Act. According to the complaint, the Defendants are engaged in unlawful business practice of advertising, marketing, and selling all 2017-2020 Audi models with defective Automatic Start/Stop systems. The defect endangers drivers, passengers, and other persons and property in the vicinity as the affected vehicles' engine, under otherwise normal operating conditions, shuts down before the vehicles come to a complete stop. The Plaintiff and Class members suffered injury as they purchased their affected vehicles under the express and implied warranties that they would operate safely throughout the useful life of such vehicles. Volkswagen Group of America, Inc. is an automobile manufacturing company headquartered in Herndon, Virginia. Audi AG is a Germany-based company that designs, manufactures, promotes, markets, and distributes Audi vehicles. [BN] The Plaintiff is represented by: Gregory Y. Porter, Esq. BAILEY & GLASSER, LLP 1055 Thomas Jefferson Street NW, Suite 540 Washington, DC 20007 Telephone: (202) 548-7790 Facsimile: (202) 463-2103 E-mail: gporter@baileyglasser.com - and – Benjamin L. Bailey, Esq. Jonathan D. Boggs, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301 Telephone: (304) 345-6555 Facsimile: (304) 342-1110 E-mail: bbailey@baileyglasser.com jboggs@baileyglasser.com - and – Steve W. Berman, Esq. Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com toml@hbsslaw.com VOLUME SERVICES: Settlement in Raquedan Suit Gets Prelim. Approval ------------------------------------------------------------------ In the case, MONIQUE RAQUEDAN, et al., Plaintiffs, v. VOLUME SERVICES, INC., et al., Defendants, Case No. 18-CV-01139-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, granted the parties' joint motion for preliminary approval of their fourth amended class action settlement. The parties' proposed class action settlement underwent several amendments since June 2019. The Court previously granted preliminary approval of the third amended class settlement on July 3, 2019 but vacated it due to the dramatic increase in the size of the class. In an October 2019 motion, the parties represented that there were 11,740 class members. In mid-April 2020, Centerplate filed a declaration that explained the changes in the class size, and the Plaintiffs' counsel filed a declaration that generally explained the increase in their requests for attorney's fees. On April 17, 2019, the parties also filed a supplement to their joint motion for preliminary approval of the fourth amended class action settlement. In that supplement, the parties represented that the class size is 11,731. The parties also represented that the Plaintiffs' claims pursuant to the California Investigative Consumer Reporting Agencies Act, California Consumer Credit Reporting Agencies Act, and the California Unfair Competition Law have zero damages value. Having considered all the briefing, the arguments of the counsel, the relevant law, the parties' changes to the various settlements and the class notices, and the record in the case, Judge Koh granted the parties' motion for preliminary approval of the fourth amended class action settlement. The Court preliminarily approved the Notice of Class Action Settlement. The Fourth Amended Class Notice and the parties' proposed Opt-Out Form, are sufficient to inform Class Members of the terms of the Settlement, their rights under the Settlement, their rights to object to or comment on the Settlement, their right to receive a Settlement Share or opt out from the Settlement, and the processes for doing so, and the date and location of the final approval hearing, and are therefore approved. The following persons are certified as Class Members solely for the purpose of entering a settlement in the matter: All employees and applicants in the United States who applied for a job, promotion or job change with Centerplate for which a background check, including a consumer report, was conducted at any time from Feb. 22, 2011, to March 31, 2019, excluding those individuals who already have resolved all the claims asserted in the Action, whether by settlement or adjudication, including, but not limited to, the settlement in Phlisida Gibbs v. Centerplate, Inc., et al., U.S.D.C., M.D. Fla., No. 8-17-cv-2187-EAK-JSS. The Class Members will receive a Settlement Share unless they submit a valid and timely Opt-Out Form not later than 45 days after the mailing of the Fourth Amended Class Notice. Any Class Member who wishes to object to the Settlement, including the Class Counsel's motion for attorney's fees and for Class Representative payments, has until 45 days after the mailing of the Fourth Amended Class Notice to mail to the Settlement Administrator his or her written objection, pursuant to the procedures set forth in the Fourth Amended Class Notice. Simpluris, Inc. has been appointed to act as the Settlement Administrator; Plaintiffs Monique Raquedan and Ronald Martinez has been confirmed as the Class Representatives; and Shaun Setareh, Thomas Segal, and Farrah Grant of Setareh Law Group are named as the Class Counsel. Centerplate is directed to provide to the Settlement Administrator not later than 30 days after the date of the Order the Class Members' Data as specified by the Settlement. The Settlement Administrator is directed to mail the Fourth Amended Class Notice and Opt-Out Form, translated in English and Spanish, by first-class mail to the Class Members not later than 15 days after receipt of the Class Members' Data. A final approval hearing will be held on Sept. 17, 2020, at 1:30 p.m. A full-text copy of the District Court's April 21, 2020 Order is available at https://is.gd/mt6pHw from Leagle.com. WIGWAM MILLS: Cruz Sues in S.D. New York Alleging ADA Violation --------------------------------------------------------------- A class action lawsuit has been filed against Wigwam Mills, Inc. The case is styled as Shael Cruz, on behalf of himself and all others similarly situated v. Wigwam Mills, Inc., Case No. 1:20-cv-05142 (S.D.N.Y., July 6, 2020). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Wigwam Mills is a hosiery company based in Sheboygan, Wisconsin.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal WILL LEATHER: Blind Customers Can't Access Web Site, Cruz Claims ---------------------------------------------------------------- Shael Cruz, on behalf of himself and all others similarly situated v. WILL LEATHER GOODS, Case No. 1:20-cv-05143 (S.D.N.Y., July 6, 2020), is brought against the Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical location, is a violation of the Plaintiff's rights under the Americans with Disabilities Act. Because the Defendants' Website, www.willleathergoods.com, is not equally accessible to blind and visually-impaired consumers, it violates the ADA. 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, 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. The Defendant is a leather goods company that owns and operates the website, www.willleathergoods.com, offering features which should allow all consumers to access the goods and services which Defendant ensures the delivery of throughout the United States, including New York State.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Phone: (929) 575-4175 Email: Joseph@cml.legal [*] AMP Warns Class Actions May Lead to Job Losses, Co. Failures ---------------------------------------------------------------- Charlotte Grieve, writing for Sydney Morning Herald, reports that the chief executive of wealth giant AMP has warned the growing class action industry will lead to job losses, business failures and higher costs to consumers if litigation funders are not reined in with more regulation. Francesco De Ferrari told a Senate economics committee on June 30 he was concerned about litigation funding in Australia, citing research from Liberal Party associated think tank Menzies Research Centre that found the amount received by plaintiffs had fallen by one-fifth over the past four years. "It's interesting to know that Australia, given its current set-up, is the second most attractive class action litigation jurisdiction in the world. The returns for the litigator funding are 17 times the average returns on the ASX 200," Mr. De Ferrari said. AMP is facing two class actions--one brought by shareholders following revelations at the banking royal commission and the other from consumers who claim they were excessively charged for superannuation services. AMP is also facing two additional class actions--one brought by outgoing aligned advisers who claim to be saddled with debt following contract changes and the other by customers who claim to be sold bad insurance products. Mr. Ferrari said the rise in class actions had contributed to the "escalating cost of doing business" in Australia and pushed professional indemnity insurance premiums up as global reinsurers did not want to take on the risk. "Ultimately, that will result in a higher cost of doing business which will result in job losses and higher costs being passed onto consumers," he said. Litigation funders are private companies that bankroll class actions in exchange for a slice of the settlement. Proponents say they take on the risk necessary to hold corporates to account but critics argue opportunistic lawsuits are used to pressure companies into accepting large settlements to minimise the impact on their reputation. Attorney-General Christian Porter launched a parliamentary inquiry to examine all aspects of the class action system in May, citing "enormous profits being made by litigation funders" as a key area of the probe. Treasurer Josh Frydenberg soon after made it compulsory for litigation funders to hold an Australian Financial Services Licence in an effort to boost transparency and accountability for companies. Mr. De Ferrari welcomed the requirement for funders to be licensed. "That would require them to act in the best interest of plaintiffs, which [is] not true I believe with the set-up we have today." AMP appeared before the committee to provide an update on changes implemented following Kenneth Hayne's scathing royal commission that revealed thousands of dead customers were continuing to be charged fees. Mr. De Ferrari said the solution to adviser misconduct was greater use of technology and said AMP had boosted the frequency of aligned adviser audits and was rolling out a mandatory technology platform that enabled greater monitoring of operations. "How do you supervise conduct risk on a workforce of 24,000 licensed advisers operating across Australia? It's a journey and ultimately we'll get there with better technology." Mr. De Ferrari also provided an update on customer remediation, saying AMP had paid over roughly 62,000 clients a total of $241 million out of the total $800 million provision. [GN] [*] Morrison & Foerster Attorneys Discuss COVID-Related Suits ------------------------------------------------------------- Jamis Barcott, Esq.--jbarcott@mofo.com--Penelope Preovolos, Esq.--ppreovolos@mofo.com--and Claudia Vetesi, Esq.--cvetesi@mofo.com--of Morrison & Foerster LLP, in an article for JDSupra, report that several months into the widespread business closures and event cancellations resulting from the COVID 19 pandemic, we have seen businesses adopt a range of strategies to respond. Those strategies, in addition to the closures and cancellations themselves, have sparked a surge in class action litigation, much of it under California's consumer protection statutes, the Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA), and False Advertising Law (FAL). This blog post explores strategies (short of full refunds) that have been adopted by businesses to address cancellations and closures, as well as class actions that have been filed in response. We also examine potential defenses for this new breed of class action litigation. COVID-19 Mitigation and Risk Reduction Strategies and Class Action Challenges Transition to Online Services The expansion of our online presence has become ubiquitous with our post-COVID-19 experience. Rather than simply closing up shop, many companies have transitioned their business models from in-person to online almost overnight. This transition, however, has not been without its own unique challenges, leading to numerous class action suits across the state. Notable examples include: Christina Diaz v. University of Southern California (Central District of California, Judge Dolly Gee) As universities have moved classes online, lawsuits have been filed seeking reimbursement for room and board and reimbursement for the lost benefits of an in-person education. On May 4th, a putative class of students brought UCL claims against the University of Southern California for allegedly continuing to hold students liable for the full pre-shutdown tuition, despite not providing the services the students had bargained for. In the wake of California Governor Gavin Newsom's stay-at-home order, USC had transitioned its entire university from its physical location in Downtown Los Angeles to the videoconference platform Zoom. Despite USC offering the same degrees and accreditation it had offered prior to COVID-19, the putative student class argues that the loss of physical facilities and amenities dilutes the value of their education. Erin Weiler v. CorePower Yoga, LLC (Central District of California, Judge George Wu) Multiple cases throughout the state have also targeted gyms, which have struggled to adapt their business model to California's stay-at-home orders and social distancing guidelines. On April 15th, a putative class brought UCL, CLRA, and FAL claims against CorePower Yoga, a yoga studio in Los Angeles, for allegedly continuing to charge monthly membership fees despite closing down their studio indefinitely. In lieu of offering full refunds, CorePower Yoga offered its monthly members free access to a special collection of online classes that mimicked the classes offered at their physical studio. Despite the availability of these online classes, the putative class argues that this is not what they bargained for when they initially signed up for CorePower and that they can only be made whole by the receiving a full refund. Credits for Future Events Although we are unlikely to see live audiences at concerts, conventions, and sporting events anytime soon, many companies are looking to use the prospect of future events to their advantage. Crediting consumers for future events can be a helpful solution for entertainment businesses operating on thin margins, who may not have the capabilities to provide immediate full refunds. Such strategies have sparked class action challenges, however, including the following: Tess Nesis v. Do Lab, Inc. et al. (Central District of California, Judge Dale Fischer) On April 14th, a putative class brought UCL and CLRA claims against Do Lab, the operator of the 2020 Lightning in a Bottle Music Festival, for refusing to give refunds to those who purchased weekend passes, despite cancelling the event. The COVID-19 pandemic put Do Lab in an extremely precarious position. Not only was Do Lab forced to cancel its festival just a few months before the festival was set to take place, but it had also already spent most of the money brought in through ticket sales on non-refundable deposits, building materials, and staff. Unable to offer immediate refunds, Do Lab offered ticket purchasers the option to either credit funds towards future iterations of the Lightning in a Bottle Music Festival, donate their 2020 ticket funds to Do Lab, or be placed in a pool for a potential refund at an undisclosed time. Despite these options, the putative class argues that Do Lab's promises are illusory and an improper attempt to take money from its ticket purchasers. Discounts/Coupons for Future Events For companies with access to a larger array of events, another option is offering coupons that allow costumers greater flexibility than credits towards a specific event. After mass event cancellations in the wake of COVID-19, many ticket exchange and resale companies began offering coupons for their websites, sometimes offering coupons with even greater value than the original ticket. Class actions have challenged that strategy, however. Alcaraz v. StubHub, Inc. (Northern District of California, Judge Haywood Gilliam Jr.) On April 14th, a putative class brought UCL, CLRA, and FAL claims against Stubhub, Inc., one of the country's largest ticket exchange and resale companies, for rescinding their promise to customers to provide full refunds if an event was cancelled. Prior to COVID-19, Stubhub's FanProtect Guarantee gave ticket purchasers the option of either a full refund or a coupon for 120% of their original purchase. However, due to the overwhelming number of refund requests after the COVID-19 pandemic, Stubhub removed the full refund option and began only processing coupons for event cancellations. Despite being offered coupons that would make them more than whole, plaintiffs argue that they would have never purchased tickets in the first place without the guarantee of a full refund for cancelled events. Defenses and Strategic Considerations for COVID-19-Related Class Actions Under California's Consumer Protection Laws The UCL claims in these class actions have followed a fairly predictable pattern. Utilizing the three-pronged test of the UCL, plaintiffs first allege that the defendants violated the "fraud" prong by falsely representing that consumers would only owe fees when they had access to the defendant's physical facilities, or that by purchasing a ticket they were entitled to a full refund if the event were cancelled. Second, plaintiffs argue the defendants violate the "unlawful" prong by violating the CLRA or FAL or some other common law claim, such as breach of express warranty, fraud, unjust enrichment, conversion, or breach of contract. Finally, plaintiffs argue the defendants' practices violate the "unfair" prong under the various "unfairness" tests applied by the courts. Confronted by these claims, businesses should focus on the following defenses and considerations: Utilizing Existing Contractual Rights and Force Majeure The first step for any company should be to review the text of any applicable agreements, including but not limited to purchase and membership agreements. Look for clauses that allocate the risk to consumers or provide for delayed or different performance in case of an event like the COVID-19 pandemic. Reliance on the plain text of your contractual obligations may mitigate the perception of unfairness. Additionally, many contracts include force majeure clauses that relieve a party from its contractual duty when performance has been prevented by a force beyond its control or when the purpose of a contract has been frustrated. And, if your contract is silent on the matter of force majeure, California law implies such a clause under Cal. Civ. Code Sec. 1511, where performance of an obligation is excused "when it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of the state or of the United States." But bear in mind, as with any contractual dispute, the specific contract language, the governing law, and specific facts will drive the resolution of any dispute about performance. When reviewing your contract's force majeure provisions, consider the following: Is the COVID-19 pandemic a type of event that you or your counterparty identified as a force majeure event? Was the COVID-19 pandemic foreseeable at the time the contract was signed? Is performance impossible post-COVID-19 or merely expensive? Does the force majeure provision require notice within a specific period of time? Does the force majeure provision apply only to certain obligations of the contract? Businesses also should review their underlying agreements for choice of law or choice of forum provisions. California consumer protection statutes are notably plaintiff-friendly, so a choice of law provision that avoids California law and/or permits transfer of the action may reduce exposure or even result in dismissal. The Safe Harbor Defense In 2000, the California Supreme Court established a UCL "safe harbor" in Cel-Tech Communications, essentially holding that a plaintiff cannot plead "unfairness" under the UCL where the legislature specifically permits the challenged conduct. The underlying theory is that courts may not impose their own notions of what is fair or unfair where the legislature has spoken. While a general proclamation of a pandemic probably will not suffice as a statutory hook for a safe harbor claim, companies should determine whether there is a basis for a safe harbor defense by reviewing the statutes underlying plaintiff's claims for permitted conduct during an event like the COVID-19 pandemic. Underlying Defenses to "Borrowed" Law Under the Unlawful Prong of the UCL A principal defense to a UCL "unlawful" claim is to establish a defense under the "borrowed" law. California courts consistently hold that a defense to the borrowed law also applies to a UCL claim based on that law.[ In many of the COVID-19-related class actions, the borrowed law is the CLRA or FAL, but some cases have also been based on other common law claims such as breach of contract, fraud, or unjust enrichment. Defenses to these claims also apply to the UCL "unlawful" claim. Defenses to Class Certification Ninth Circuit law provides strong arguments against the application of California's consumer protection statutes to non-resident Plaintiffs or a nationwide class. Mazza v. Honda. In Mazza, the Ninth Circuit found that California's consumer protection statutes differed so significantly from those of other states that the interests of the foreign states precluded the certification of a nationwide class. Although many courts defer this issue to the class certification stage, some courts have been prepared to grant motions to strike class allegations at the pleading stage, including in cases where there is no California plaintiff. Nationwide classes may also raise predominance issues across states with drastically different stay-at-home orders and social distancing guidelines. Other Considerations Moving Forward into the Post-COVID-19 Landscape Although the law regarding strategies short of full refunds in the context of the COVID-19 pandemic is just starting to develop, businesses should also consider how consumers will respond and how to manage that response. Thus, businesses should carefully craft communications to their customers about a current decision to offer (or continue to offer) something other than a full refund. Going forward, companies should clearly disclose their cancellation policies to their customer base in a manner customers will be sure to see, in order to reduce exposure to future litigation. Finally, businesses should consider ways to address these issues while drafting future iterations of their membership and purchase agreements, particularly with regard to force majeure and the allocation of risk. [GN] [*] Victoria Permits Contingency Fees in Class Actions ------------------------------------------------------ Marcus O'Brien and Nicole Wearne of Clyde & Co report that plaintiff law firms are celebrating. From 1 July 2020 class action lawyers can apply to the Supreme Court of Victoria for permission to charge costs using a contingency fee model. In Australia, there has been a statutory prohibition preventing lawyers from charging a contingency fee on damages obtained by a successful party. An inherent conflict was recognised to exist between the lawyer's own interests and those of the client, which may affect the advice provided. However with the burgeoning litigation funding industry in Australia, plaintiff firms have been lobbying governments for law reform which enables increased access to justice through law firms receiving their costs on a contingency fee basis. Despite the Federal Parliament's current Joint Committee Inquiry on Corporations and Financial Services into Litigation Funding and Regulation of the Class Action Industry, the Victorian Parliament has followed the advice of the Victorian Law Reform Commission and pushed ahead with a contingency fee model. Will Victoria become a preferred State for Class Action litigation? Are plaintiff law firms on a level playing field with litigation funders or do they now have a distinct commercial advantage? Will the new s33ZDA provide the Victorian Supreme Court with a procedural advantage over NSW and Federal Courts? Are contingency fees the new CFO? This article examines some of the consequences and likely implications of this significant and historical change which permits Australian class action lawyers to charge contingency fees. The new law has been the subject of much comment over several months with competing claims about whether it will improve access to justice or whether it will lead to an outbreak of unmeritorious class actions. The legislation comes into effect in Victoria at a time when there is ongoing debate about the Federal Court's authority to regulate common funding of class actions following the decision last year by the High Court in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 in which it held that procedurally s183 of the Civil Procedure Act (NSW) and s33ZF of the Federal Court Act did not empower the NSW Supreme Court or Federal Court respectively, to issue common fund orders (CFO) in the early stages of class actions. The High Court found that those sections are each directed to the exercise of the power in the context of how an action should proceed in order to do justice. The Amendment The Justice Legislation Miscellaneous Amendments Act 2020 (Vic) amends the Supreme Court Act 1986 (Act) to make provisions about costs in group proceedings. New section 33ZDA in relation to group costs orders says: "On application by the plaintiff in any group proceeding, the Court, if satisfied that it is appropriate or necessary to ensure that justice is done in the proceeding, may make an order - (a) that the legal costs payable to the law practice representing the plaintiff and group members be calculated as a percentage of the amount of any award or settlement that may be recovered in the proceeding, being the percentage set out in the order; and (b) that liability for payment of the legal costs must be shared among the plaintiff and all group members. (2) If a group costs order is made - (a) the law practice representing the plaintiff and group members is liable to pay any costs payable to the defendant in the proceeding; and (b) the law practice representing the plaintiff and group members must give any security for the costs of the defendant in the proceeding that the Court may order the plaintiff to give. (3) The Court, by order during the course of the proceeding, may amend a group costs order, including, but not limited to, amendment of any percentage ordered under subsection (1)(a)." In summary, the Act allows the Court to make an order in group proceedings (class actions) for plaintiff law firms to charge their fees as a percentage of the amount recovered, rather than calculating legal fees on scale or using the time-costing billing model with a 25% uplift. Practical impacts of the Act Currently, many plaintiff law firms in Victoria pursue class actions on a no-win, no-fee basis. If the action is successful they charge their clients an uplift fee up to a cap of 25% on their standard legal costs. In many class actions the plaintiff firms enter into agreements with litigation funders to finance the costs of the proceeding, including providing any security for costs required and in most cases an indemnity for an adverse costs order if the action is unsuccessful. So plaintiffs pay both an uplifted fee to their solicitors and a funding fee to the litigation funder. The consequence is that where a funder is involved, group members often receive only around 50% of the settlement or judgment sum, though that percentage is typically larger the bigger the claim and judgment sum. The key purpose of the new law is to increase the group members' share of any proceeds from the class action. The quid pro quo for allowing plaintiff's lawyers to charge a contingency fee is to shift the financial risk to the plaintiff's lawyers. The Act does not set a limit on the percentage of the recovered sum that can be charged as a contingency fee. However the Court will play a determinative role in controlling the percentage of the contingency fee. Whilst the percentage will be set at the time the group costs order is made, the Court can amend that percentage during the course of the proceeding. If a group costs order is made, liability for the defendant's costs shifts from the lead plaintiffs to the plaintiff law firm. The plaintiff law firm will have to fund the costs of pursuing the proceeding and will have to pay the defendant's costs if the action is unsuccessful. To satisfy the Court that a group costs order should be made the plaintiff law firm will have to satisfy the Court such an order is "appropriate or necessary to ensure justice is done". The Court has a complete discretion to determine whether a group costs order is appropriate for a particular class action. Importantly, the Act does not displace the broader prohibition against contingency fees. It only applies to group proceedings. An alternative CFO? Significantly, whilst the impact of the Brewster decision is to potentially curtail CFOs, the introduction of a statutory contingency fee power in Victoria provides an alternative mechanism for group proceedings to obtain certainty of funding at an early stage of the litigation. The position is to be contrasted with the Federal Court where the power to make a CFO or funding equalisation order now appears to only be available towards the end of a proceeding, when settlement is approved or judgment delivered. This new power provides the Victorian Supreme Court with market disrupting influence. It will inevitably cause plaintiff firms to assess which jurisdiction enables them to obtain the best commercial benefit. Security for Costs It is common in funded class actions for defendants to make an application that the representative plaintiff provide security for the defendant's costs. Whether or not an order for security for costs is in the interests of justice will depend upon the consideration of all the relevant circumstances. Where the class action is being funded by group members or the solicitors are working on a speculative basis, the Courts are inclined not to order security. However where a litigation funder is involved an application for security is more likely to be successful or consented to. In a recent Victorian decision if was foreshadowed that if there is a contingency fee arrangement in a class action that will be a relevant consideration for the Court to take into account in deciding whether to order security.1 The Act provides that the plaintiff law firm ". must give any security for the costs of the defendant in the proceeding..." that is ordered by the Court. So as part of the risk reward mechanism the plaintiff law firm will have to provide security that is acceptable to the defendants. For larger plaintiff firms they will no doubt have arrangements in place with their banker to provide appropriate guarantees. It will be interesting to see whether this requirement will prevent smaller law firms from entering the fray. One option is for plaintiff firms to purchase an After the Event (ATE) insurance policy which they will disclose to the defendants in response to an application for security. Impact on Litigation Funders The increase in class actions in Australia and the prevalence of litigation funders has been blamed for inhibiting corporate activity. The returns earned by litigation funders have been the subject of political debate and from 22 August 2020 funders will have to be licensed under the Corporations Act. Some commentators have observed that the introduction of contingency fees provides an alternative funding option to enable some class actions which would not otherwise be funded, either because the sums involved do not provide the returns required by funders or they do not fit the litigation funding model. This new reform only applies to Victoria and it will be business as usual for litigation funders in other States. If the reform significantly impacts their activities in Victoria, as a result of plaintiff firms deciding to go it alone, then we may see funders setting up their own law firms or entering into arrangements with plaintiff firms to provide security for adverse costs in return for a portion of the contingency fees. There is also a real likelihood that other States or the Commonwealth will also introduce contingency fee laws in order to provide equivalent access to justice for their citizens. The Court will scrutinise whether a particular action is deserving of a contingency fee arrangement. In an article published by Vince Morabito and Jarrah Ekstein in 2016, the learned authors reviewed the many different types of class actions not brought by shareholders or investors, but filed on behalf of vulnerable claimants2. Many of those class actions involve smaller numbers of class members, often involve personal injury loss and are less attractive to funders than shareholder and investor claims. We expect that the Court will be likely to approve contingency fees for these types of claims which are plainly deserving, and which require significant investment by the plaintiff firm. In contrast where funders are prepared to provide financial assistance to shareholders and investors, we predict that the introduction of a contingency fee alternative is likely to place additional commercial pressure on funders to reduce their rate of commission. This is particularly so having regard to the statements made by various judges that the current statutory regime does not enable judges to vary the commission rate in funding agreements. In competing class actions where one option is a contingency fee which removes the costs risks from the plaintiff and a funding fee which can result in a significant reduction of the take home settlement to members, the attractiveness to the Court in preferring a contingency fee funded class action is obvious where the prospects are that better returns are likely to result for group members. The plaintiff firms in seeking this reform have stated that the overall benefit to members is a much greater share of the settlement/judgment: 75% instead of 60%3. What will happen next? There has been significant media comment that contingency fees will lead to a financial bonanza for plaintiff law firms. That is unlikely for two reasons. Firstly, the Court has been given a specific power to set, vary or reject the proposed contingency fee arrangement. Recent Court decisions demonstrate that judges take an active role in scrutinising fees and commission rates and we expect that they will carefully review contingency fee rates relative to any judgment or settlement to ensure that they are not excessive. Ultimately the Court has to approve any settlement reached, and the lawyers' costs will be a factor the Court can take into account in assessing whether settlement is in the best interests of group members. Secondly, whilst we expect that plaintiff law firms will initially seek a contingency fee which is similar to the current fees charged by litigation funders, to reflect the risks they are accepting, it is likely that there will be competition between law firms and litigation funders for class actions. We have recently seen class action "auctions" between funders who have competed with each other on funding rates. It has been argued that the contingency fee reform will allow plaintiffs to pursue group claims that are currently considered as too small or too risky by litigation funders or where no lead plaintiff has been prepared to run the risk of being exposed to an adverse costs order. Solicitors are likely to be initially careful about the types of claims they commence where they will seek to apply for a contingency fee order from the Court. We suspect that the early focus will be on those matters where funders have previously not been interested, like bushfire claims, product liability torts, and consumer claims such as mis-selling of financial products, consumer credit insurance and MySuper claims. These types of claims have traditionally been brought on a "no win no fee" basis. We think that Plaintiff firms will focus on these types of claims before they seek to compete in more traditionally funded investor or shareholder claims. In a climate of Royal Commissions investigating institutional abuse, we also expect to see group proceedings for victims of sexual, physical and mental abuse as one class of claims where plaintiff firms will seek to take advantage of the new contingency fee law. It is unlikely that plaintiff law firms will take on unmeritorious class actions when they are exposed to the financial downside if the action fails. If the action involves significant risk then the plaintiff's lawyers will not be able to buy ATE to protect against the adverse costs risk. The matters which the Court will wish to be informed about on any application under s33ZDA are likely to include whether any other costs model has been considered, including the traditional uplift fee; the potential value of the claim; and the backend funding of the lawyers upfront costs, including whether litigation funders are providing any support and likely to receive any fee. When it comes time to discuss settlement, insurers may find that a new dynamic enters the negotiations as the plaintiffs' lawyers need to balance the interests of the group members, with their own financial interests. This interest is not just confined to the greater the settlement the more revenue for the law firm, but also whether in hard fought class actions any revenue will flow to the law firm. Plaintiff firms will need to be careful not to under settle to protect their own interests. We foresee a greater role for Court appointed contradictors of settlements, who may be appointed to independently scrutinise whether a settlement is in the best interests of group members. Summary The introduction of contingency fees is a significant and controversial change to the way that lawyers are permitted to charge their fees. The Victorian Government has been criticised as pandering to the union firms. However, Victoria is frequently at the forefront of reform and this disruptive change is no different. Whilst we do not expect a flood of claims will result, this reform has forever changed the landscape of class action litigation. Footnotes 1. Troiano v Voci [2019] VSC 859, at [57] 2. Vince Morabito and Jarrah Ekstein "Class Actions Filed for the benefit of Vulnerable Persons - An Australian Study" (2016) 35 Civil Justice Quarterly 61 3. Victorian Law Reform Commission report Access to Justice - Litigation Funding and Group Proceedings, Ch 3. para 3.24 [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2020. 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 ***