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/raid1/www/Hosts/bankrupt/CAR_Public/200724.mbx C L A S S A C T I O N R E P O R T E R Friday, July 24, 2020, Vol. 22, No. 148 Headlines AARON'S INC: $5MM Class Settlement in Sevilla Suit Gets Final OK ACTIVEPROSPECT INC: Hill Sues Over Illegal Wiretapping, Recording ADVANCED MICRO: 9th Cir. Upholds Dismissal of Claims in Hauck Suit AIR METHODS CORP: Dyer Slams Emergency Airlift Charges ALLAN MYERS: Weber Suit Seeks to Recover Overtime Pay Under FLSA ALLERGAN INC: Faces Hoskins Suit Over Defective BIOCELL Implants APPLE INC: iPhone Users Sue in New York Over SIM Card Security BAYADA HOME: Obtains Leave to File Summary Judgment Bid in Higgins BIG CITY YONKERS: Order on Opt Outs in Robinson Deal Reversed BOOKING HOLDINGS: Martinez Moved From Super. Court to S.D. Calif. BOYCE HYDRO: Residents File Class Actions Over Flooding CALIFORNIA: Adams to Proceed as Sole Plaintiff in Prisoners Suit CALIFORNIA: Order on Related Cases in Rivas Suit Entered CARGILL LTD: Calgary Law Firm Launches Suit on Covid Outbreak CARNIVAL CORP: Bernstein Liebhard Reminds of July 27 Deadline CHARLESTON DAY: Settlement Reached in Sexual Abuse Class Action CHARTER COMMUNICATIONS: 9th Cir. Upholds Arbitration Ruling in Hart CO-DIAGNOSTICS INC: Glancy Prongay Reminds of August 17 Deadline COLGATE-PALMOLIVE: Must Face Class Suit Over Pension Benefits COMMONWEALTH FINANCIAL: Obtains Judgment on Pleadings in Solis Suit COMPLIANCE ADVANTAGE: Class Certification in Criswell Suit Flipped COPPER CANE: Kay Files False Labeling Suit COSTCO WHOLESALE: Certification of Damages Class in Kurtz Upheld COTTON PATCH: Norred FLSA Suit Administratively Closed DARTMOUTH COLLEGE: $14MM Student Harassment Pact Gets Final Nod DEFENDERS INC: Cox Labor Suit Dismissed With Prejudice EL AL: Faces Class Action Over Unpaid Ticket Refunds ESTRELLITA POBLANA: de la Cruz Sues Over Unpaid Minimum, OT Wages EVERGREEN LIVING: Hicks BIPA Class Suit Removed to N.D. Illinois FACEFIRST INC: Faces Vance Suit Over Collection of Biometric Data FIRST NATIONAL: Remand of Zielinski Suit Stayed Pending Appeal FSD PHARMA: Court Orders Virtual Pre-Certification Motion Hearing GENERAL MOTORS: Claims in Weiss Suit Over Faulty Drivelines Trimmed HARTFORD FINANCIAL: Hodges, Three Commas Slam Denied Insurance HARVEY WEINSTEIN: Women Object to Class Action Settlement HEALTHY FRESH: Reyes Sues Over Unpaid Minimum and Overtime Wages HEBRON TECHNOLOGY: Pomerantz LLP Reminds of August 7 Deadline HELIUS MEDICAL: Shareholder Class Action Voluntarily Dismissed HITACHI AUTOMOTIVE: Class Certification in Held Labor Suit Upheld HUNTINGTON BANCSHARES: Prinzo Sues Over Failure to Pay PPP Agents IDEANOMICS INC: RM LAW Reminds of August 27 Deadline INTERNATIONAL PAPER: Court Narrows Claims in Ashworth Suit IRONMAN: Faces Class Action Over No-Refund Policy J2 GLOBAL: Bernstein Liebhard Reminds of September 8 Deadline JAZZ PHARMACEUTICALS: Faces UFCW Suit Over Anticompetitive Scheme JO-ANN STORES: McCoy Suit Moved From Super. Court to N.D. Calif. JOHN DOE CORP: Rodriguez Sues Over Unpaid Minimum and OT Wages LEAD INTELLIGENCE: Hill Sues Over Illegal Wiretapping & Recording LINKEDIN: Sued for Reading Apple Users' Clipboard Content LONGFIN CORP: Referral for Inquest Order in Securities Suit Vacated MARRIOTT INT'L: Zermeno Sues to Recover Unpaid Wages Under FLSA MCCREARY VESELKA: Bid to Strike Judgment Offer in Perez Denied MORRIS & MANNING: Faces Turk Suit Over Fraudulent SCE Strategy NB GENERAL: Denied Construction Workers Overtime Pay NEW HANOVER, NC: Band Director Sexual Assault Class Suit Pending NEW YORK: Faces Srabyan Suit Over Reopening of Schools in Sept. OH MY GREEN: Bid to Dismiss Count Six in Kastler Labor Suit Denied OKLAHOMA: Federman & Sherwood Files Muscogee Creek Class Action OLD NAVY: Fails to Obtain Dismissal of Nemykina Class Suit PENNSYLVANIA STATE: Burgos Suit Moved From N.Y. to Pennsylvania PROASSURANCE CORP: Levi & Korsinsky Reminds of Aug. 17 Deadline R S EXPEDITING: Vogler Sues Over Violations of FLSA and OPPA ROYAL CANADIAN: Faces Class Action Over Alleged Systemic Racism ROYAL CANADIAN: Sued Over Personal Biometric Data Collection SAIA MOTOR: Juarez Employment Suit Removed to N.D. California SAMSUNG ELECTRONICS: Attorneys Fees in ODD Antitrust Suit Vacated SCHMIDT'S DEODORANT: Tenzer-Fuchs Sues Over Inaccessible Web Site SIMMONS BANK: Violates CARES Act and SBA's Loan Program, JEK Says SODEXO INC: Fails to Provide Compliant COBRA Notice, Thomas Says SOPHIE'S CUBAN: Pantaleon Slams Tip Credit, Seeks Overtime Pay SPECIALTY RESTAURANTS: Siefert Suit Moved From Calif. to New York TRANSPORTATION INSURANCE: Orthodontic Clinic Slams Denied Insurance TREASURER AND RECEIVER: Judgment on Pleadings in Machado Upheld UBER TECHNOLOGIES: Hassell Seeks Unpaid Wages, Reimbursements UNITEDHEALTH GROUP: Scott Suit Challenges Cross-Plan Offsetting WALMART INC: Hubmer Suit Removed From Super. Court to C.D. Calif. WAWA: Settles ESOP Lawsuit for $21.6 Million WEBER COUNTY, UT: Jail Faces Class Action Over COVID-19 Outbreak [*] Parliamentary Inquiry Into Class Actions in Australia Begins [*] Two Big U.S. Cos. Face Class Action on CCPA Violations Asbestos Litigation ASBESTOS UPDATE: Court of Appeals Upholds Verdict in J&J Talc Case ASBESTOS UPDATE: Netflix Sues Neasden Studios for GBP200,000 ASBESTOS UPDATE: PPG Industries Had 500 Open Claims at June 30 ASBESTOS UPDATE: Settlement Reached on Cleanup in Arena Site ASBESTOS UPDATE: Union Carbide Faces Lawsuit over California Death ********* AARON'S INC: $5MM Class Settlement in Sevilla Suit Gets Final OK ---------------------------------------------------------------- In the case captioned ARMINDA SEVILLA, individually and on behalf of all other persons similarly situated, and on behalf of the general public, Plaintiff, v. AARON'S, INC., a Georgia corporation, and DOES 1 through 30, inclusive; Defendant, Case No. CV 17-4053-DMG (Ex) (C.D. Cal.), Judge Dolly M. Gee of the U.S. District Court for the Central District of California granted final approval of the proposed class action settlement. The Court finds that the Gross Settlement Fund of $5,100,000 and the terms and conditions set forth in the Settlement Agreement are fair, reasonable, and adequate and in the best interest of the Class. The Court confirms the appointment of the Class Representative and her attorneys of record, Shadie L. Berenji, Esq. and Brittanee A. Marksbury, Esq. of Berenji Law Firm, APC, to act on behalf of the Class in connection with the settlement. The Court concludes that $1,700,000 is the amount of reasonable attorneys' fees and $36,700 is the amount of reasonable costs that should be paid to Class Counsel for all work done in and to be done until the completion of this litigation, and as reimbursement for reasonable fees and costs incurred in prosecuting this action, and hereby authorizes payment of the said amounts from the Gross Settlement Fund, in accordance with the Settlement Agreement. Plaintiff's Motion for Attorneys' Fees and Costs is GRANTED. Defendant is ordered to pay the settlement awards to the Class Representative and Class Members, the Class Representative incentive award in the amount of $15,000, the PAGA penalty payment in the amount of $510,000 to the Labor and Workforce Development Agency and the Class Members, and the settlement administration costs to Rust Consulting in the amount of $25,000. A full-text copy of the District Court's May 15, 2020 Judgment is available at https://is.gd/SoJfnZ from Leagle.com. ACTIVEPROSPECT INC: Hill Sues Over Illegal Wiretapping, Recording ----------------------------------------------------------------- AMANDA HILL, Individually and On Behalf of All Others Similarly Situated v. ACTIVEPROSPECT, INC., Case No. 5:20-cv-01351 (C.D. Cal., July 3, 2020), seeks damages and injunctive relief against the Defendant for its unauthorized and illegal wiretapping and recording of communications with the Plaintiff without any notification or warning, causing the Plaintiff and the Class Members damages. The Plaintiff contends that the Defendant has a policy and practice of wiretapping and recording the electronic communications of consumers, who reside in California, as these consumers input information into fields on web-based forms from within California, in violation of the California Invasion of Privacy Act. The Defendant provides lead data and lead-verification services to online companies, including by recording consumers' electronic communications on third-party companies' websites, such as by recording consumers' keystrokes in real time as they input information into fields on web-based forms on third-party websites.[BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6806 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Frank S. Hedin, Esq. David W. Hall, 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 dhall@hedinhall.com ADVANCED MICRO: 9th Cir. Upholds Dismissal of Claims in Hauck Suit ------------------------------------------------------------------ In the case, DIANA HAUCK, et al., Plaintiffs-Appellants, v. ADVANCED MICRO DEVICES, INC., Defendant-Appellee, Case No. 19-16124 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court order granting AMD's motion to dismiss the claims in the Plaintiffs' second amended complaint that the parties had identified as bellwether claims. The Plaintiffs-Appellants, each of whom had purchased a computer processor manufactured by Defendant-Appellee AMD or a device containing such a processor, filed the putative class action alleging various state law claims arising out of alleged defects in those AMD processors. Like all major computer processor manufacturers, AMD employs branch prediction, speculative execution, and caches in its processors' microarchitecture. The Plaintiffs' operative second amended complaint alleges that AMD processors are defective because their reliance on these features renders the processors vulnerable to cybersecurity attacks in which attackers (1) artificially induce mis-speculation to influence what metadata a processor stores, and then (2) launch side-channel attacks to deduce users' underlying sensitive information from that metadata. The Plaintiffs allege that the vulnerability was publicized to consumers in January 2018, and they acknowledge that the type of attack the processors were vulnerable to was commonly referred to as a Spectre attack. They do not allege that any such attack has successfully compromised their data or any other consumer's data. Instead, their claims are premised on allegations that they would not have purchased their devices or would have paid less for them if they had known about the defect, and on allegations that the defect prompted them to install third-party patches that then caused their processors' performance to worsen. The district court granted AMD's motion to dismiss the claims in the Plaintiffs' second amended complaint that the parties had identified as bellwether claims, entered a partial final judgment pursuant to Federal Rule of Civil Procedure 54(b), and certified the matter for immediate appeal. The Plaintiffs timely appealed. The Ninth Circuit finds that the Plaintiffs have adequately alleged Article III standing as to their claims for damages. The Plaintiffs' allegations that their devices degraded in performance after they installed third-party patches to attempt to mitigate their processors' vulnerability to the alleged defect are sufficient to establish an injury in fact that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." That injury is "fairly traceable" to the design of AMD processors. The Ninth Circuit opines that the district court did not err in concluding that, to the extent the Plaintiffs' second amended complaint alleged that AMD processors were defective for the reason that their caches are vulnerable to side-channel attacks generally and not only Spectre-like attacks in particular, or because of other some other subset of their features, the Plaintiffs failed to allege the nature of the defect with sufficient specificity to state any of their claims sounding in fraud under the heightened pleading standard of Federal Rule of Civil Procedure 9(b). The Ninth Circuit further opines the district court did not err in dismissing for failure to state a claim the California Plaintiffs' claims for violation of the unfair business practices prong of the Unfair Competition Law ("UCL") and for fraud by omission under California law. The fraud by omission claim was properly dismissed for failure to plausibly allege the existence of any of the relevant bases for a fraud claim set forth in LiMandri v. Judkins. The California Plaintiffs do not allege that AMD is their fiduciary. Nor are their allegations sufficient to establish either AMD's knowledge or active concealment of the defect. Although the California Plaintiffs allege that AMD was aware of some of the vulnerabilities created by its design choices, they do not plausibly allege that AMD knew of the specific vulnerability identified in their second amended complaint until that vulnerability was disclosed to AMD in June 2017, which was after the California Plaintiffs had made their purchases. Nor do the California Plaintiffs plausibly allege that AMD "suppressed" material facts regarding that specific defect. To the extent the California Plaintiffs' unfair business practices UCL claim is not also grounded in fraud, the Ninth Circuit holds that it was nevertheless properly dismissed, because the California Plaintiffs have not stated a plausible claim that AMD engaged in an unfair business practice under either the "tethering" or the "balancing" tests. The Plaintiffs have not plausibly alleged either the existence of false advertising or an actual violation of a privacy right, nor have they plausibly alleged that the harm represented by the theoretical risk of a cybersecurity flaw that has not yet been successfully exploited outweighs the other benefits of AMD's processor design. The Florida Plaintiff's omission claim under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), and the Massachusetts and Florida Plaintiffs' affirmative misrepresentation claims under the Massachusetts Consumer Protection Act ("MCPA"), and FDUTPA were also properly dismissed. The Plaintiffs do not plausibly allege that AMD's statements or omissions offended established public policy or were immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Nor were any of the alleged statements or omissions "likely to mislead" consumers acting reasonably in the circumstances to their detriment, given that such consumers would not plausibly believe that AMD's clock-speed representations were premised on any implicit security assurances, or that their devices would be completely impervious to novel cybersecurity threats. The Massachusetts Plaintiff's omission claim under the MCPA was properly dismissed. Given the wide publicity the alleged defect received prior to the Massachusetts Plaintiff's purchase of his AMD processor and the absence of plausible allegations that consumers would have believed their devices were not susceptible to any cybersecurity threats, the second amended complaint does not plausibly allege that AMD's failure to disclose the defect "could reasonably be found to have caused the Massachusetts Plaintiff to act differently from the way he otherwise would have acted. The California Plaintiffs' warranty claims were properly dismissed. Even if AMD's clock-speed representations are treated as an express warranty, the Plaintiffs fail to identify any specific or unequivocal written statement that guarantees that such clock speeds could be attained without any possible security compromises. Nor have the Plaintiffs plausibly alleged that their devices lack "even the most basic degree of fitness for ordinary use" as required to state a claim for breach of an implied warranty of merchantability. Finally, the Louisiana Plaintiff's redhibition claim was also properly dismissed. The Ninth Circuit finds that the Plaintiffs have not plausibly alleged either that AMD's processors were "absolutely useless" or that they were so inconvenient or imperfect that a reasonable person would not have purchased them. A full-text copy of the Ninth Circuit's May 15, 2020 Memorandum is available at https://is.gd/Tam5mO from Leagle.com. AIR METHODS CORP: Dyer Slams Emergency Airlift Charges ------------------------------------------------------ Vaughn Dyer, individually and on behalf of all others similarly-situated, Plaintiff, v. Air Methods Corporation and Rocky Mountain Holdings, LLC, Defendant, Case No. 20-cv-02309 (D.S.C., June 18, 2020), seeks to impose a constructive trust, where appropriate, on amounts wrongfully collected from Plaintiff pending resolution of claims; issuance of appropriate declaratory and injunctive relief, as requested to declare whether the parties have an enforceable contract for the payment of Defendants' services not preempted by the Air Line Deregulation Act of 1978, together with any contract rights and obligations existing between the parties; reimbursement of all costs and disbursements, including attorneys' fees, experts' fees, and other class action related expenses; pre-judgment and post-judgment interest; and such further relief under the Airline Deregulation Act of 1976. On November 17, 2018, Air Methods Corporation and Rocky Mountain Holdings transported Dyer's child from an accident scene in Beaufort County, South Carolina to a Memorial Hospital in Savannah, Georgia in which Dyer was charged for the air-lift without any voluntary contractual relationship formed prior to transport and without knowledge of the charge. [BN] The Plaintiff is represented by: J. Preston Strom, Jr., Esq. Mario A. Pacella, Esq. STROM LAW FIRM, LLC 6923 N. Trenholm Rd. Suite 200 Columbia, SC 29206 Tel: (803) 252-4800 Fax: (803) 252-4801 Email: petestrom@stromlaw.com mpacella@stromlaw.com - and - Terry E. Richardson, Jr., Esq. Daniel S. Haltiwanger, Esq. Chris Moore, Esq. RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC P.O. Box 1368 1730 Jackson Street Barnwell, SC 29812 Telephone No.: (803) 541-7850 Fax No.: (803) 541-9625 E-Mail: trichardson@rpwb.com dhaltiwanger@rpwb.com cmoore@rpwb.com - and - Richard Joseph Burke, Esq. Zachary Allen Jacobs, Esq. QUANTUM LEGAL LLC – HIGHLAND PARK 513 Central Avenue, Suite 300 Highland Park, IL 60035 Tel: (847) 433-4500 Email: richard@qulegal.com zachary@qulegal.com - and - Edward L. White, Esq. EDWARD L. WHITE, PC 829 East 33rd Street Edmond OK 73013 Tel: (405) 810-8188 Email: ed@edwhitelaw.com ALLAN MYERS: Weber Suit Seeks to Recover Overtime Pay Under FLSA ---------------------------------------------------------------- Jeffery Weber, Daniel Rifenburg, Victor Teasley, Jody Moore, on behalf of themselves individually and all others similarly situated v. ALLAN MYERS and DAVE BAILEY, Case No. 1:20-cv-00951-UNA (D. Del., July 15, 2020), is brought under the Fair Labor Standards Act to seek damages for unpaid overtime compensation and unpaid wages, which the Plaintiffs were wrongly deprived of. According to the complaint, the Defendants willfully violated the provisions of the FLSA by having a policy and practice of requiring employees to meet at a job site and carpool in an employer owned vehicle (van) to a different job site for that day's work. The Defendants had a strict policy of not paying individuals for the van ride. The Defendants had a policy and practice of refusing to pay for the hours of travel time from the meeting site to the job site, as well as for overtime compensation to the Plaintiffs. As a result of The Defendants' willful failure to compensate its employees, including the Plaintiffs and similarly situated current and former employees of the Defendants, for all of the hours travelled, the Defendants have violated FLSA, says the complaint. The Plaintiffs were employed by the Defendants as Truck Drivers. Allan Myers is incorporated in the State of Delaware.[BN] The Plaintiffs are represented by: Ronald G. Poliquin, Esq. THE POLIQUIN FIRM, LLC 155 S. Bradford St., Suite 203 Dover, DE 19904 Phone: (302) 702-5001 ALLERGAN INC: Faces Hoskins Suit Over Defective BIOCELL Implants ---------------------------------------------------------------- PATRICIA HOSKINS and CHARLES HOSKINS v. ALLERGAN PLC, now known as ABBVIE, INC.; ALLERGAN, INC., ALLERGAN USA, INC., and DOES 1-100, Case No. 2:20-cv-08547 (D.N.J., July 9, 2020), is brought on behalf of the Plaintiffs and all others 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. 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 Plaintiffs contend they 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 Hoskins case has been consolidated in MDL 2921, IN RE: ALLERGAN BIOCELL TEXTURED BREAST IMPLANT PRODUCTS LIABILITY LITIGATION. Patricia Hoskins 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 Plaintiffs are represented by: Virginia M. Buchanan, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 South Baylen Street P. O. Box 12308 Pensacola, FL 32591 Telephone: (850) 435-7023 Facsimile: (850) 436-6023 E-mail: vbuchanan@levinlaw.com APPLE INC: iPhone Users Sue in New York Over SIM Card Security -------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that iPhone users are claiming Apple misrepresented the data privacy and security of the devices. In a class action lawsuit filed July 6 in New York federal court, plaintiffs claimed iMessage and Facetime aren't as confidential as Apple claimed. "Apple deceived consumers by failing to disclose a significant security flaw in the Apple iOS software--the operating system for the iPhone--known only to Apple that allowed iMessage correspondence sent by iPhone users and Facetime calls made by iPhone users to be improperly directed to and accessed by third parties," the lawsuit says. The lawsuit also names T-Mobile as a defendant for marketing and selling iPhone-compatible SIM cards. The company failed to disclose its practice of recycling phone numbers linked to SIM cards and selling those cards without requiring prior users to disassociate their Apple IDs from the phone numbers. The law firm pursuing the case is Oved & Oved. [GN] BAYADA HOME: Obtains Leave to File Summary Judgment Bid in Higgins ------------------------------------------------------------------ In the case, STEPHANIE HIGGINS, MEGHAN TANEYHILL, SHIELA LEVESQUE, MARGARET MAGEE, SHERRI KRAMER, SHELLY NEAL, and YVETTE MARSHALL, for themselves and all others similarly situated, Plaintiffs, v. BAYADA HOME HEALTH CARE, INC., Defendant, Civil No. 3:16-CV-02382 (M.D. Pa.), Judge Jennifer P. Wilson of the U.S. District Court for the Middle District of Pennsylvania: (i) granted Defendant Bayada's motion for leave to file a summary judgment motion on a threshold legal issue; and (ii) denied Defendant's motion to stay discovery and motion for a protective order staying depositions of six fact witnesses pending summary judgment on the threshold legal issue. Higgins initiated the action by filing a collective and class action complaint against Bayada on behalf of her herself and all others similarly situated on Nov. 30, 2016. On May 11, 2018, the Court granted Higgins' motion for conditional certification and notice under 29 U.S.C. Section 216(b). On Oct. 11, 2018, Higgins sought leave to amend the complaint to add additional named Plaintiffs and assert state law Rule 23 class claims under the overtime laws of New Jersey, Massachusetts, Maryland, Colorado, Arizona, and North Carolina. Bayada opposed the motion and the court subsequently requested supplemental briefing by the parties. On Dec. 2, 2019, the court granted Plaintiff Higgins' motion to amend. That same day, Higgins filed an amended complaint which included additional named Plaintiffs -- Meghan Taneyhill, Shiela Levesque, Margaret Magee, Sherri Kramer, Shelly Neal, and Yvette Marshall -- and six state law minimum wage claims in states where Bayada operates. Thereafter, Bayada timely filed an answer to the amended complaint. On Dec. 3, 2019, the matter was reassigned to Judge Wilson. According to the allegations in the amended complaint, the Plaintiffs are former "clinician" employees of Bayada. Higgins represents a conditionally certified class of the Plaintiffs who allege that Bayada is illegally classifying clinician employees as overtime exempt under the Fair Labor Standards Act ("FLSA"), and improperly denying them overtime pay. The other named Plaintiffs represent putative classes under numerous related state laws based on the same claims. Particularly, the Plaintiffs allege that Bayada uses a "hybrid wage scheme" through which hours worked are estimated by "productivity points" and clinician compensation is adjusted based on the number of points earned in a week, thus approximating an hourly wage system while calling such employees "salaried" for the purposes of the FLSA. On Jan. 8, 2020, Bayada filed a motion, with the Plaintiffs' concurrence, requesting an in-person status conference with the court to discuss timing and parameters for discovery relating to the new claims and the Plaintiffs that were added in the amended complaint, as well as options for moving forward with the original FLSA opt-in class. The Court granted the parties' request and scheduled a status conference for Jan. 29, 2020. The Plaintiffs filed a status report prior to the conference advising the court that Bayada unilaterally cancelled six fact witness depositions. Bayada filed a response to the Plaintiffs' status report along with the instant motion to stay discovery and for leave to file a summary judgment motion. It requests leave to file a motion for summary judgment which would substantially narrow the issues in the case, and for the court to stay all discovery until that motion can be ruled upon. Because Bayada filed its motion a day before the status conference, and the Plaintiffs did not have the opportunity to submit a response to the motion, the Court did not address the motion at the status conference. Following the status conference, it issued an order vacating the prior case management order, and granting Bayada leave to file a motion for protective order in addition to its motion for stay. Bayada filed a motion for protective order on Feb. 7, 2020, requesting that the Court prevents the Plaintiffs from deposing six fact witnesses pending the resolution of the motion for summary judgment Bayada requested to file. Judge Wilson holds that beyond Bayada's generalized allegations that continuing discovery will cause them to "undertake significant time and expense," there is no evidence in the record that the burden imposed by the Plaintiffs' specific requests outweighs their interest in having evidence relevant to the potentially dispositive motion for summary judgment threatened by Bayada. Therefore, Bayada's motion for a stay of discovery will be denied. However, the Plaintiffs will not be permitted discovery beyond the scope of what they requested in their opposition brief, without good cause shown. The Judge is not persuaded that a protective order is appropriate in the case. At the outset, the motion requests essentially identical relief as the motion to stay discovery. The six fact depositions noticed by Plaintiffs fall within the scope of the limited discovery that the court is permitting. Given that the relief sought in the motion for protective order is essentially a subset of the relief sought in the motion to stay all discovery, and given that the court is denying the motion for stay, it would be contradictory to grant a protective order. Furthermore, as Bayada acknowledges, it unilaterally cancelled the six fact witness depositions without taking the procedurally proper step of seeking a protective order. While Bayada contends that it was not done in bad faith, it was still an improper means to avoid discovery. Lastly, reviewing the merits of the motion, the Judge finds that Bayada has not shown good cause to protect it from undue burden or expense. Accordingly, Judge Wilson granted in part and denied in part Bayada's motion to stay discovery and for leave to file a summary judgment motion, and denied Bayada's motion for a protective order. A full-text copy of the District Court's May 15, 2020 Memorandum is available at https://is.gd/D1WMwZ from Leagle.com. BIG CITY YONKERS: Order on Opt Outs in Robinson Deal Reversed ------------------------------------------------------------- In the case, FRANK ROBINSON, ETC., ET AL., Respondents, v. BIG CITY YONKERS, INC., ETC., ET AL., Defendants; JOSE R. RODRIGUEZ, ET AL., Nonparty-Appellants, Case No 2018-04108, Index No. 60015/16 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, reversed a Feb. 16, 2018 order of Judge Denise L. Sher of the Nassau County Supreme Court that determined as invalid certain opt-out statements that were not part of the Plaintiffs' unopposed class settlement motion and which relief was not requested in the motion. The Plaintiffs commenced the action against the Defendants to recover unpaid wages and overtime pay. They alleged that they worked for the Defendants as delivery drivers and were misclassified as exempt employees and independent contractors in violation of both the Fair Labor Standards Act, and the New York Labor Law. By order dated Jan. 17, 2017, the Nassau Supreme Court certified the matter as a class action. The parties eventually reached a settlement agreement and, thereafter, the Plaintiffs moved, among other things, for final approval of the settlement, approval of the proposed service awards, and approval for the payment of attorney's fees and costs to the class counsel. By order entered Feb. 16, 2018 ("February 2018 order"), the court granted the unopposed motion and dismissed the action with prejudice. Pursuant to the February 2018 order, all the class members who did not opt out were permanently enjoined from asserting, pursuing, and/or seeking to reopen claims that were released pursuant to the settlement agreement. It also contained a handwritten provision declaring that the opt outs received on Jan. 26, 2018 from Lee Litigation Group are deemed invalid as they were dated prior to the Class Notice which was sent Dec. 27, 2017, and do not contain the required opt-out language pursuant to the Class-Notice ordered by the court on Nov. 22, 2017. Such relief was not sought in the motion filed by the Plaintiffs nor was it contained in the proposed order submitted to the court by the Plaintiffs' counsel. Thereafter, the appeal, brought by the 45 captioned non-party appellants, ensued. The appellants allege that they are those class members on whose behalf Lee Litigation Group submitted the opt-out statements which the court, sua sponte, declared invalid in the February 2018 order. Contrary to the Plaintiffs' contention, the Appellate finds that Supreme Court should not have declared invalid certain opt-out statements that were not part of the Plaintiffs' unopposed motion and which relief was not requested in the motion. The relief awarded by the court in the handwritten provision in the February 2018 order is "dramatically unlike" the relief sought by the Plaintiffs and was prejudicial to the appellants. Moreover, the opt-out statements referred to in the February 2018 order were not among the exhibits submitted on the Plaintiffs' motion, and therefore were not properly before the court for consideration. Accordingly, the Appellate Court reversed the February 2018 order insofar as appealed from. A full-text copy of the Appellate Court's Jan. 22, 2020 Decision & Order is available at https://is.gd/SlBem9 from Leagle.com. Lee Litigation Group, PLLC, New York, NY (C. K. Lee of counsel), for nonparty-appellants. Shulman Kessler LLP, Melville, NY (Troy L. Kessler and Garrett Kaske of counsel), Anthony A. Capetola, Williston Park, NY, and Outten & Golden, New York, NY (Justin M. Swartz and Juno Turner of counsel), for respondents (one brief filed). Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (David L. Weissman -- dweissman@eckertseamans.com -- and Sarah H. Morrissey -- smorrissey@eckertseamans.co -- of counsel), for defendants. BOOKING HOLDINGS: Martinez Moved From Super. Court to S.D. Calif. ----------------------------------------------------------------- The class action lawsuit captioned as DAVID E. MARTINEZ, on behalf of himself and all others similarly situated v. BOOKING HOLDINGS, INC.; and Does 1 through 10, inclusive, Case No. 37-2020-00018413-CU-BT-CTL (Filed June 3, 2020), was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California on July 9, 2020. The Southern District of California Court Clerk assigned Case No. 3:20-cv-01289-JAH-MSB to the proceeding. The Plaintiff purports to sue on behalf of "[a]ll U.S. citizens who used agoda.com or the Agoda smart app for hotel bookings, along with all other persons who used agoda.com or the Agoda smart app to book hotel rooms located in the United States," unrestricted by any date range. The Plaintiff alleges that "[i]n the third quarter of 2019 alone, consumers booked $25.3 billion worth of gross travel bookings through Defendant's properties such as agoda.com and the Agoda app. Of that, the Defendant recognized $5.0 billion in revenue for the quarter and $2.0 billion in net income." The Plaintiff claims that the alleged wrongful practices are the "Defendant's common practice across agoda.com and the Agoda app for all its offerings." Booking Holdings is an American company organized in Delaware and based in Norwalk, Connecticut, that owns and operates several travel fare aggregators and travel fare metasearch engines including agoda.com and the Agoda app.[BN] The Defendant Booking Holdings is represented by: Teresa H. Michaud, Esq. Sara Victoria M. Pitt, Esq. Alexander G. Davis, Esq. Anne K. Assayag, Esq. BAKER & McKENZIE LLP 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067 Telephone: 310 201 4728 Facsimile: 310 201 4721 E-mail: teresa.michaud@bakermckenzie.com sara.pitt@bakermckenzie.com BOYCE HYDRO: Residents File Class Actions Over Flooding ------------------------------------------------------- Luke Galvin, writing for World Socialist Web Site, reports that it has been nearly two months since the breaching of the Sanford, Edenville and Smallwood dams in central Michigan. Along with subsequent dike failures along the Tittabawassee River the breaches caused record flooding and damage throughout the Midland County, Michigan, region. On July 10, seven weeks later, the Trump administration finally officially declared the area to be a major disaster area. The declaration allows for up to $43 million of federal relief aid to be provided through the Federal Emergency Management Agency (FEMA), the Small Business Administration, and the US Department of Agriculture. These funds, however, represent only a small percentage of the actual damage inflicted on the region, which is at least six to seven times that amount by official accounts. Thus far government agencies estimate the cost of the damages dealt to homes, businesses and buildings at $190 million in Midland County, with an additional $55 million for infrastructure damage. The flooding destroyed most of the village of Sanford, emptied Wixom and Sanford Lake and covered the downtown area of the city of Midland in as much as 12 feet of water at points. Flooding forced the evacuation of over 10,000 residents, some of whom remain in very precarious circumstances. Reports are emerging of continuing social, health and economic fallout in the region. Sanford, for instance, faced the brunt of the flood's onslaught with many of its homes and businesses demolished or severely damaged. The village's lake-reliant recreational economy is also very likely to collapse completely with the draining of the Sanford Lake. In neighboring Gladwin County, the flooding has impacted over 300 residents who face little to no access to water from reliance on wells that are now too shallow to be functional due to a drop in groundwater levels. The Detroit News reported that the average cost for digging wells deeper in the area to attempt to counteract the groundwater drop is $5,000. Residents are currently being told by officials that they need to live on bottled water. The return of the wells to normal function depends on the restoration of the breached dams. The Four Lakes Task Force estimates rebuilding taking three to six years at the cost of $220 million. While the day to day life of residents continues to worsen, virtually nothing is being done by state and local governments. Midland County families in need of assistance for destroyed home appliances like furnaces and air-conditioners and damage to basements, vehicles or entire homes are being forced to turn to local religious groups for basic forms of aid. Most residents and businesses in the area do not have flood insurance, and local and state government relief aid failed to mitigate much of the disaster. Desperate residents have filed numerous class-action lawsuits against the private owner of the Edenville dam, Boyce Hydro LLC, as well as Midland County, the Michigan Department of Natural Resources and the EGLE (Michigan Department of Environment, Great Lakes and Energy). These lawsuits will likely take years to resolve, if residents can even afford the legal costs. FEMA's involvement in the recovery efforts will also likely provide little to no substantive relief or comfort to those impacted by the floods, if history is an indicator. The agency played an especially notorious role in the responses to both Hurricane Katrina and Hurricane Sandy, failing to provide any meaningful assistance to those affected while enriching companies like Carnival Cruise Lines. The ongoing COVID-19 pandemic also quickly collided with ongoing cleanup efforts. A recent report from NPR revealed that many cleanup workers were brought in from private companies, with a large contingent of heavily exploited immigrant workers. The report details the horrid conditions on the job site, the cramped hotel rooms serving as temporary living quarters for workers, and the lack of access to masks. At least nineteen workers from one company at the Midland recovery site were documented as having contracted COVID-19. Democratic Governor Gretchen Whitmer, for her part, responded to the outbreak by seeking to blame the workers themselves, claiming in an interview with WDET in Detroit that they "brought COVID-19 with them." The Whitmer administration, like its Republican and Democratic predecessors, has overseen and defended a large push for privatization of infrastructure and education, which has contributed to the decay, defunding and breakdown of dams and public education. Making matters even worse is the ongoing impact of the floods upon Midland's sprawling Dow Chemical Company complex. Located on the bank of the Tittabawassee River, the notorious industrial polluter saw its containment ponds overflow during the flooding in May. The WSWS reported on the implications of this aspect of the floods, outlining the potential environmental risk this poses for any area downstream of the complex. As of July 12, EGLE has only released preliminary test results from its investigation into possible contamination showing low dioxin levels downstream. The full scale of testing has yet to cover major areas of concern, such as the heavily contaminated riverbanks near Dow, the containment ponds and Dow's manufacturing areas. Given Dow was forced to pay $77 million just last year to restore nearby fish and wildlife habitats contaminated by its past actions, the likelihood of further contamination from the flooding is very high. While the chain of failures and disaster in central Michigan is a sharp expression of the failing privatized infrastructure of the state, it is by no means unique. A recent report by the Brooklyn-based First Street Foundation outlines the national scale of similar events that are at risk of unfolding. The report reveals 70 percent more homes at risk of flooding than currently shown on FEMA's Special Flood Hazard Area maps. In Michigan alone, the study lists 400,000 more homes at risk of flooding damage than listed by federal government, meaning that most of these homes do not have flood insurance. The First Street Foundation study conclusions take into account the impact of climate and environmental change, unlike FEMA which only considers historical risk each year. Underlying the threat of larger flooding is the aging infrastructure of dams, bridges and roads, often badly in need of repairs. If added to the First Street and FEMA reports, the threat of future flooding and flood damage from crumbling infrastructure is undoubtedly even larger. [GN] CALIFORNIA: Adams to Proceed as Sole Plaintiff in Prisoners Suit ---------------------------------------------------------------- Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California ordered that Plaintiff Adams will proceed as the sole Plaintiff in the case, PAUL ADAMS, et al. Plaintiffs, v. GAVIN NEWSOM et al., Defendants, Case No. 1:20-cv-00674-SAB (PC) (E.D. Cal.). Plaintiffs Adams and Hendrix Moreno Montecastro filed the instant action pursuant to 42 U.S.C. Section 1983, on Feb. 21, 2020, in the U.S. District Court for the Northern District of California, along with separate motions to proceed in forma pauperis. On May 13, 2020, the action was transferred to the Court. The Plaintiffs seek to litigate the action on behalf of themselves, and as a class action on behalf of all other inmates. Plaintiff Adams seeks to be appointed as the counsel for the class action. The Plaintiffs contend that over the past two decades a history of serious danger, overcrowding, and an excessive increase in violence has emerged in the State of California prisons and County Jails, due in large part to double bunking. Upon review of the complaint, Magistrate Judge Boone finds that each Plaintiff will proceed separately on his own claims. As an initial matter, Plaintiff Adams is informed that he cannot bring an action on behalf of fellow inmates because he is proceeding in pro se in the action. Pro se litigants have no authority to represent anyone other than themselves; therefore, they lack the representative capacity to file motions and other documents on behalf of prisoners. In addition, it is well established that a layperson cannot ordinarily represent the interests of a class. The rule becomes almost absolute when the putative class representative is incarcerated and proceeding pro se. The action, therefore, will not be construed as a class action and instead will be construed as an individual civil suit. To avoid the problems related to case-management and filing fees, permissive joinder of Adams and Montecastro, as co-Plaintiffs in the action is denied. They may each, however, proceed with their own actions. Accordingly, the action will proceed with Adams as the sole Plaintiff, and the claims presented by Plaintiff Montecastro will be severed and filed in a new civil rights action. Based on the foregoing, Magistrate Judge Boone ordered that Plaintiff Adams will proceed as the sole Plaintiff in case number 1:20-cv-00674-SAB (PC). The Judge severed the claims of Plaintiff Montecastro from the claims of Plaintiff Adams. The Clerk of the Court is directed to (i) open a separate Section 1983 civil action with nature of suit 550 for Hendrix Monroe Montecastro CDCR # AS-6243 California Correctional Institution P.O. Box 107 Tehachapi, CA 93581; (ii) assign the new action to the Magistrate Judge to whom the instant case is assigned and make appropriate adjustment in the assignment of civil cases to compensate for such assignment; (iii) file and docket a copy of this order in the new action opened for Plaintiff Montecastro; and (iv) place copies of the complaint and the motion to proceed in forma pauperis in the new action opened for Plaintiff Montecastro. A full-text copy of the District Court's May 15, 2020 Order is available at https://is.gd/NS6ET9 from Leagle.com. CALIFORNIA: Order on Related Cases in Rivas Suit Entered -------------------------------------------------------- In the case, ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs, v. DAVID JENNINGS, et al., Defendants, Case No. 20-cv-02731-VC (N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for the Northern District of California has entered an order regarding related cases. Several judges in the District have issued referrals to the Court to determine whether other individually-filed cases are related to the Rivas class action. Judge Chhabria's current view is that an individual case should be deemed related to the class action if it includes nothing that falls outside the scope of this class action -- that is, if the sole claim for relief in the individual case involves allegedly unconstitutional conditions of confinement relating to Covid-19 at Mesa Verde or Yuba County Jail. He says cases in which the Plaintiff or the Petitioner raises additional claims or requests for relief should not be deemed related to the instant case. It will, of course, be up to the judge presiding over such an individual case to decide whether to stay the case while the Court is considering bail applications submitted by the class members. If the Court receives a bail application from a class member who has a separate individual case pending, the fact that the individual case is pending will not prevent this Court from considering the bail application. The Court will rule on pending and future referrals accordingly. A full-text copy of the District Court's May 15, 2020 Order is available at https://is.gd/nmBWVk from Leagle.com. CARGILL LTD: Calgary Law Firm Launches Suit on Covid Outbreak ------------------------------------------------------------- CBC News reports that the province is putting out a call for bids on a third-party review of Alberta's pandemic response. The request for proposals is now open, and will close Aug. 10. The province plans to select a candidate by Aug. 18, and hopes to have the review completed this fall, according to a July 12 news release. As of July 10, there were 592 active COVID-19 cases across Alberta. So far, 160 deaths have attributed to COVID-19 in the province, while 7,844 people have recovered. According to the news release, the successful consultant will review "all aspects" of Alberta's pandemic response including the health system, the economic response, governance and decision-making, procurement and engagement with other levels of government and organizations. Like other jurisdictions, Alberta has battled outbreaks in care homes, medical facilities, and businesses. In Edmonton, the Misericordia Community Hospital closed to all new patients as it battles an outbreak in both staff and patients. In a statement on July 11, Covenant Health said 17 patients and 17 staff had tested positive thus far, and that five deaths have been connected to the outbreak in the hospital. At one point, an outbreak at a Cargill Ltd. beef-processing plant near High River, Alta., was the largest outbreak in North America. More than 1,500 cases of COVID-19 were linked to the plant, according to health officials, with more than 940 employees testing positive. Three deaths were linked to the facilities, and on July 10, a Calgary firm launched an attempt to file a class action lawsuit in connection to the outbreak. The province says the third-party review will be similar to those that followed past natural disasters, such as the wildfires in Fort McMurray and Slave Lake, and the floods that hit Calgary and southern Alberta in 2013. [GN] CARNIVAL CORP: Bernstein Liebhard Reminds of July 27 Deadline ------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action has been filed on behalf of investors that purchased or acquired the securities of Carnival Corporation ("Carnival" or the "Company")(NYSE:CCL) between September 26, 2019 and May 1, 2020 (the "Class Period"). The lawsuit filed in the United States District Court for the Southern District of Florida alleges violations of the Securities Exchange Act of 1934. If you purchased Carnival securities, and/or would like to discuss your legal rights and options please visit Carnival Shareholder Class Action 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: (1) the Company's medics reported increasing events of COVID-19 illness on the Company's ships; (2) Carnival had violated port of call regulations by concealing the amount and severity of COVID-19 infections onboard its ships; (3) in responding to the outbreak of COVID-19, Carnival failed to follow the Company's health and safety protocols developed in the wake of other communicable disease outbreaks; (4) by continuing to operate, Carnival ships were responsible for continuing to spread COVID-19 at various ports throughout the world; and (5) 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 April 16, 2020, when the Company still had at sea two (2) of its cruise ships, Bloomberg Businessweek published an article titled "Carnival Executives Knew They Had a Virus Problem, But Kept the Party Going." In that article, it was revealed that Carnival may have failed to adequately protect passengers from COVID-19 on a series of cruise voyages, and indeed continued to operate new cruise departures despite its knowledge that the threat posed by COVID-19 had materialized on its ships and was likely to proliferate further. On this news, the Company's share price fell $0.53 per share from a prior close of $12.38 per share to close at $11.85 per share on April 16, 2020. Then, on May 1, 2020, The Wall Street Journal published an article titled "Cruise Ships Set Sail Knowing the Deadly Risk to Passengers and Crew." That article detailed how cruise ships, particularly Carnival ships, facilitated the spread of COVID-19, and provided new facts on early warning signs Carnival and its affiliated cruise lines possessed and the Company's disclosure failures. Further, the article also noted that The House Committee on Transportation and Infrastructure had requested documents from Carnival related "to Covid-19 or other infectious disease outbreaks aboard cruise ships" and that testimony from a separate investigation in Australia revealed that Carnival and its affiliated cruise lines may have misled shore officials by concealing those exhibiting COVID-19 symptoms before docking. On this news, the Company's share price fell $1.97 per share from a prior close of $15.90 per share to close at $13.93 per share on May 1, 2020. If you purchased Carnival securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/carnivalcorporation-ccl-shareholder-class-action-lawsuit-stock-fraud-274/apply/ contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. If you wish to serve as lead plaintiff, you must move the Court no later than July 27, 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. 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. [GN] CHARLESTON DAY: Settlement Reached in Sexual Abuse Class Action --------------------------------------------------------------- F. Brian Ferguson, writing for Gazette-Mail, reports that a preliminary settlement was reached on July 13 in a class-action lawsuit against a Charleston doctor convicted of sexual abuse on a patient while under anesthesia. Counsel for the plaintiffs reached a $890,000 settlement amount in the civil court case against gastroenterologist Dr. Steven Matulis and the Charleston Day Surgery Center. The amount will be divided among 372 plaintiffs. Since the Kanawha Circuit Clerk's Office is closed until July 10 following an employee's positive COVID-19 case, the motion has not been entered into court yet, but it was approved on July 13 by Kanawha Circuit Judge Jennifer Bailey via teleconference. However, if 10% of plaintiffs reject the settlement amount, a new motion must be approved. If the amount--estimated at $2,100 for each defendant--is agreed upon, final approval will be given during a hearing at 9 a.m. Nov. 12. Matulis was criminally charged with five counts of second-degree sexual assault and two counts of first-degree sexual abuse in 2018. Four of those charges were dismissed, and Matulis was only convicted on one charge of sexual abuse. But Matulis was accused of a number of sexual crimes by former Charleston Area Medical Center nurses and surgical technicians. It got to the point where nurses and technicians said they would put a star next to the names of female patients whom they believed would later be sexually abused by Matulis. In addition, Matulis sexually harassed female employees, asking them about their favorite sex positions and if they performed certain sexual acts, they said during depositions. He was accused of commenting on female employees' breasts and asking them about their personal grooming habits. Employees also said Matulis took photos of patients' tattoos while they were under anesthesia, then would clean and wipe patients after colonoscopy procedures as a means to "discreetly abuse female patients." The employees said Matulis was the only doctor in CAMC's endoscopy suite to clean patients. Dante diTrapano, class counsel in the case, said on July 13 following the teleconference the agreement was just another step in getting the victims justice. "We believe the settlement against Day Surgery is fair, given the limited amount of insurance available to cover claims against Day Surgery," diTrapano said. "In order to maximize the amount of money that each class member will receive, we are not seeking a fee out of the settlement. We would strongly encourage all eligible class members to file a claim for benefits at the appropriate time." The Calwell, Luce & diTrapano law firm is also serving as class counsel in the class-action suit against Matulis and CAMC, which is entirely separate from the civil case against Matulis and the Day Surgery Center. [GN] CHARTER COMMUNICATIONS: 9th Cir. Upholds Arbitration Ruling in Hart ------------------------------------------------------------------- In the case, ELIZABETH HART, individually, and on behalf of all others similarly situated, Plaintiff-Appellant, and LEROY ROBERSON, Plaintiff, v. CHARTER COMMUNICATIONS, INC.; SPECTRUM MANAGEMENT HOLDING COMPANY, LLC, Defendants-Appellee, Case No. 19-55538 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order compelling arbitration. Hart filed a putative class action under the Class Action Fairness Act ("CAFA") against Defendants-Appellees Spectrum and its parent company, Charter. Hart alleged Time Warner Cable, Inc. ("TWC"), which merged into Spectrum in 2016, defrauded and misled consumers who bought residential Internet services and enrolled in automatic bill payment. The Appellees moved to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), arguing that Hart had accepted prior TWC subscriber agreements that bind subscribers to arbitration. The district court granted the motion, holding that Hart had inquiry notice of a 2014 TWC subscriber agreement and assented to the agreement by continuing to accept TWC's services. The district court held that the Appellees, as TWC's successors, could enforce the terms of the agreement, including the arbitration clause. The Ninth Circuit holds that the district court did not err by determining that Hart had inquiry notice of TWC's 2014 subscriber agreement as a result of the notice she received in two billing statements. The notice was sufficiently clear and conspicuous to provide a reasonably prudent subscriber with constructive notice of the proposed contract terms. Because there is no dispute Hart received the relevant billing statements, Hart's continued acceptance of TWC's services constituted assent to the agreement. Hart is bound by the terms of the 2014 subscriber agreement, including the arbitration clause. Hart argues for the first time on appeal that her opt-out of the arbitration clause in the 2017 subscriber agreement supersedes any prior agreement to arbitrate. The Ninth Circuit considers the argument to be forfeited because it was not raised. Finally, the Ninth Circuit reviews the district court's denial of a request for discovery for abuse of discretion. Under the FAA, discovery in connection with a motion to compel arbitration is allowed only if the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue. The district court did not abuse its discretion by determining there were no triable issues as to whether Hart was bound by the 2014 arbitration agreement and by denying Hart's request for pre-arbitration discovery, the Ninth Circuit opines. For these reasons, the Ninth Circuit affirmed. A full-text copy of the Ninth Circuit's May 15, 2020 Memorandum is available at https://is.gd/PodtnJ from Leagle.com. CO-DIAGNOSTICS INC: Glancy Prongay Reminds of August 17 Deadline ---------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming August 17, 2020 deadline to file a lead plaintiff motion in the class action filed on behalf of Co-Diagnostics, Inc. ("Co-Diagnostics" or the "Company") (NASDAQ: CODX) investors who purchased securities between February 25, 2020 and May 15, 2020, inclusive (the "Class Period"). If you suffered a loss on your Co-Diagnostics 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/co-diagnostics-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 February 24, 2020, Co-Diagnostics announced that it had received regulatory clearance to sell its COVID-19 tests in the European Community. Then on April 6, 2020, the Company announced that it had received emergency use authorization for its tests from the U.S. Food and Drug Administration ("FDA"). Finally, on May 14, 2020, after the Company continued to uphold its statements about the success of its test in its first quarter results, public reports began to circulate, questioning the Company's claims of 100% accuracy because the Company was hesitant to participate in U.S.-based testing. Later in the day, the U.S. FDA stated publicly that no COVID-19 test is 100% accurate. On this news, the Company's share price fell $5.06, or over 22%, to close at $17.07 per share on May 15, 2020, thereby injuring investors. If you purchased or otherwise acquired Co-Diagnostics securities during the Class Period, you may move the Court no later than August 17, 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] COLGATE-PALMOLIVE: Must Face Class Suit Over Pension Benefits ------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that Colgate-Palmolive Co. must face a class action challenging how it calculated the pension benefits of about 1,200 retirees, after a federal judge in the Southern District of New York denied the household product maker's request to have the case resolved before trial. Colgate's calculation of certain retirees' "residual annuity" benefits is "erroneous as a matter of law," Judge Lorna G. Schofield said in a July 10 opinion. Schofield denied the company's request for summary judgment on some of the lawsuit's central allegations but agreed to resolve other issues in the company's favor. [GN] COMMONWEALTH FINANCIAL: Obtains Judgment on Pleadings in Solis Suit ------------------------------------------------------------------- In the case, MARISOL SOLIS, individually and on behalf of all others similarly situated, Plaintiffs, v. COMMONWEALTH FINANCIAL SYSTEM, INC. and PENDRICK CAPITAL PARTNERS, LLC, Defendant, Case No. 18-cv-6130 (SJF) (AKT) (E.D. N.Y.), Judge Sandra J. Feuerstein of the U.S. District Court for the Eastern District of New York granted the Defendant's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff Solis commenced the putative class action, alleging that the Defendants have used unlawful collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiff is a "consumer," as defined by the FDCPA, residing in Nassau County, New York. Both the Defendants are "debt collectors" within the meaning of the statute. The Defendants allege Plaintiff owes two debts incurred in 2011, primarily for medical purposes. At some point after incurrence of the debts, the Plaintiff fell behind on the payments owed, and thereafter, the debts were assigned or otherwise transferred to Defendants for collection. In an effort to collect the debts, the Defendants contacted the Plaintiff by sending the Letter dated Aug. 15, 2018. The Plaintiff alleges that the statute of limitations on the debts "began to accrue in 2011," that the statute of limitations "ran in 2017," and that the Letter was sent after the statute of limitations expired. She further states that making any payment on time-barred Debts may result in revival of her otherwise time-barred Debts. On Nov. 1, 2018, the Plaintiff commenced the action, asserting claims under Sec. 1692e of the FDCPA. Plaintiff claims that the Letter violates Sec. 1692e(2)(A)'s prohibition on the false representation of the character, amount or legal status of any debt by failing to inform her that (1) no legal action could be taken to recover the debts due to the expiration of the statute of limitations, and (2) any partial payment by Plaintiff could result in the revival of her otherwise time-barred debts. She claims that these omissions further violate §1692e, which prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt. The Defendants move to dismiss the complaint pursuant to Rule 12(c). They contend that: (1) the Letter is not an attempt to collect a debt; and (2) since the Letter does not threaten legal action or offer to settle the debt, no time-bar disclosure is required. After the motion was fully briefed, the Defendants submitted a Notice of Supplemental Authority that attached a case decided after the motion was filed. The Plaintiff filed a motion to strike Defendants' Notice to the extent it contained additional legal argument as an "impermissible supplemental brief." The Defendants have not opposed that motion. The motion to strike is granted to the extent that the Court declines to address any additional legal argument put forth in the Notice. The threshold question presented is whether the Letter is a "communication" made "in connection with the collection of any debt. Judge Feuerstein holds that the Letter satisfies two Hart factors as it both references the Plaintiff's debt and includes the debt collector's "self-identification" language stating that "this is an attempt to collect a debt and any information obtained will be used for that purpose. This is a communication from a debt collector." Although the statement does not appear in all capital letters or bold-faced type, it is essentially the same language employed in Hart. The least sophisticated consumer would understand the clear meaning of the Letter to be that it is, in fact, an "attempt to collect a debt." These facts are sufficient to establish that the Letter was sent in connection with the collection of a debt and is therefore subject to the FDCPA. The Defendants argue that the Letter "is a requested—and expected—response to the Plaintiff's request for documents verifying the account," and thus constitutes a ministerial response to her inquiry. Even assuming that the Plaintiff did request information, a fact that does not appear in the complaint, a letter can have been sent for more than one reason and will be subject to the FDCPA if one of those purposes is in connection with the collection of a debt. The Plaintiff contends that the Letter improperly failed to disclose that the statute of limitations had run on the debts, thus barring legal action, and that any payment she might make could revive the debts. The complaint fails to plausibly claim a violation of the FDCPA. The complaint contains insufficient factual allegations regarding the statute of limitations issue to survive this motion. It includes a vague reference to the year in which the debts accrued, followed by the year in which the statute of limitations allegedly ran, but fails to identify the statute of limitations that applies. Without the requisite information, the Plaintiff's claim that the debt in question is time barred is an unadorned legal conclusion. Even assuming the complaint had adequately alleged that the debts were time-barred, the lack of disclosure of that status on the Letter sent here does not violate the FDCPA. The Letter also includes no language that the least sophisticated consumer could plausibly interpret as a settlement offer, demand for payment, or a threat of litigation. The mere mention of the "Current Balance" alone does not suffice, particularly in the absence of any method to effectuate any payment such as a payment coupon, direction indicating how and where to submit payment, or reference to a payment website. Even the least sophisticated consumer would not view the Letter's invitation to call and "discuss further" to be a settlement offer. Finally, generally, a creditor can seek voluntary payment of a time-barred debt. The violation of the FDCPA occurs when the letter's statements could mislead an unsophisticated consumer to believe that her time-barred debt is legally enforceable. The Plaintiff has offered no authority for the proposition that every communication from a debt collector regarding a time-barred debt must disclose that fact to the consumer. In short, while there may be circumstances were a debt collector's silence regarding the expiration of the statute of limitations on a debt may be actionable under the FDCPA, the current case does not present such a situation. For the foregoing reasons, Judge Feuerstein granted the Defendants' motion for judgment on the pleadings. The Clerk of the Court is directed to close the case. A full-text copy of the District Court's May 15, 2020 Memorandum & Order is available at https://is.gd/nIR1X0 from Leagle.com. COMPLIANCE ADVANTAGE: Class Certification in Criswell Suit Flipped ------------------------------------------------------------------ In the appellate case, COMPLIANCE ADVANTAGE, LLC, D/B/A C.A.L. LABORATORY SERVICES; RELIABLE LAB; AND CAL LEASING, LLC, Appellants, v. HEATHER CRISWELL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED; AND JADE MADDOX, ON BEHALF OF HERSELF AND ALL OTHER EMPLOYEES AND BUSINESS VICTIMS SIMILARLY SITUATED, Appellees, Case No. 2019-CA-000872-ME (Ky. App.), the Court of Appeals of Kentucky reversed the May 23, 2019 order certifying a class action under Kentucky Rules of Civil Procedure. The Appellants provide laboratory testing services, including blood and urine testing. Appelleee Maddox operated a counseling agency that utilized the Appellants' laboratory services. Appellee Criswell was a patient of the counseling agency and alleged that appellants falsely and negligently reported false laboratory results on numerous patients at the counseling agency. On April 24, 2017, Criswell, on behalf of herself and all others similarly situated, (Criswell) and Maddox, on behalf of herself and all other employees and business victims similarly situated, (Maddox) filed a class action complaint in Boyd Circuit Court against the Appellants. Within 2016, Plaintiff Criswell was one of many similarly situated persons whose laboratory results were falsely reported by the Defendants, thereby causing her and others similarly situated physical, economic and emotional damage. Plaintiff Maddox during 2016 was a business owner whose business was adversely and economically affected, along with similarly situated employees, agents and/or contractors, by the Defendants' false reporting. The Plaintiffs bring the action on behalf of themselves and others similarly situated. The Plaintiff and all the similarly situated employees seek to recover either physical, economic and/or emotional damages, or economic damages for loss of clients and business caused by the Defendants' false and/or fraudulent conduct. Plaintiff Criswell was a client of an addiction counseling business in Ashland, Kentucky, during 2016, during which time false testing and/or lab results were reported by defendants concerning her, thereby causing her to lose custody of her child and other severe emotional and economic damages. There are numerous other similarly situated victims of false lab reports by these Defendants. Additional Plaintiffs include those owning or employed by the business(es) that lost clients and revenue as a result of the Defendants' actions, including clerical staff and contract physicians. Criswell, brings this claim for relief on behalf of herself and on behalf of all similarly situated victims of false reporting of laboratory results by the Defendants. Plaintiff Maddox brings the claim for relief on behalf of herself and on behalf of all similarly situated business victims of false reporting of lab results. While the Defendants' acts or omissions were false, and reasonably believed to be knowingly false, the acts or omissions are at least reckless, grossly negligent, and/or outrageous. In the prayer for relief, Criswell and Maddox sought (a) certification of the action as a class action; (b) designation of the Plaintiffs as the class representatives; (c) appointment of the attorneys as the class counsel; and (d) judgment in favor of the Plaintiffs and the other similarly situated victims of false reporting and/or employees, agents, and/or contractors for physical, emotional and/or economic damages for each class member victimized by false reporting and each claim being in excess of the jurisdictional amount of the Court, and anticipated unpaid wages, salaries, commissions, accrued holiday pay, vacation pay, retirement contributions and other employee benefits that would have been paid to the owner, employees and/or contractors collectively in excess of the jurisdictional amount of the Court. The Appellants filed answers to the complaint on May 19, 2017, and May 24, 2017. Eventually, on March 5, 2019, Criswell and Maddox filed a motion to certify the class action. The Appellants filed a response and argued that the requirements for class certification were not satisfied pursuant to CR 23.01 and CR 23.02. In replying to the response, Maddox withdrew her request for class certification. A hearing on the motion to certify the class was held by the circuit court on May 15, 2019. By order entered May 23, 2019, the circuit court granted Criswell's motion to certify the class action with Criswell as the representative party. The circuit court defined the class as those individuals who have received false laboratory reports or results from the Appellants through the business of Counselor's Clinical Cottage. The circuit court also observed that Maddox had withdrawn her request to certify the class, but her individual claims against appellants remained. The interlocutory appeal follows. The Appellants contend that the circuit court erroneously certified the class action. Initially, they assert that the class certified by the circuit court constitutes a legally improper "fail-safe class." The Appellants argue that the certified class only includes individuals who suffered injury because of alleged false laboratory reports from appellants. According to the Appellants, membership in the class is defined first by the individual proving the exact liability questions before the Court -- was the individual's laboratory report false, and was its falsity caused by the Appellants. Thus, the Appellants maintain that the certified class constitutes a fail-safe class. The Appellate Court concludes that Thomas K. Herren cannot adequately represent the interests of the class. That alone constitutes an abuse of discretion and reversible error by the circuit court in certifying the class as the fourth prerequisite of adequacy of representation under CR 23.01 is not satisfied. Additionally, the Appellate Court notes that by separate Order, he has stricken the appendices attached to appellees' brief. The matters contained therein were not part of the record on appeal, nor considered by the circuit court in its order entered May 23, 2019. It is well-established that the Court will not consider evidence that the circuit court had no opportunity to examine. Likewise, CR 76.12(4)(c)(vii) provides that any evidentiary material or documents not part of the record on appeal will not be included in the appendix to a party's brief. CR 76.12(4)(d)(v) requires the Appellees to identify in their appendix index where the attached documents can be found in the record on appeal. Since the materials in their appendices were produced in discovery after the circuit court's ruling on the class action issue, they will not be considered in the appeal. Thus, the primary premise of the Appellees' arguments to support the class action as set out in their brief is not part of the record on appeal considered by the circuit court. As noted, there was little discovery taken or produced prior to the May 15, 2019, hearing and the record is meager at best. That begs the question of whether the circuit court had a sufficient evidentiary or legal basis to grant the class action motion under CR 23. The Appellate Court holds that trial courts often are required to probe behind the proceedings to rigorously analyze a class certification issue. Given the lack of supporting evidence in the record below, the Appellate Court harbors grave doubt that the circuit court was in a position to adequately address the issue as mandated by CR 23. For example, appellees allege in their brief that they have produced over 31,000 documents in support of their claims, yet these documents are not part of the record on appeal and obviously were not available for consideration by the circuit court. Given that the typicality, commonality, and adequacy prongs overlap in a CR 23 analysis, the Appellate Court directs the circuit court on remand to revisit all of the necessary prerequisites required under CR 23.01 and CR 23.02 to determine whether to certify a class action in the case. For the foregoing reasons, the Appellate Court reversed the order of the Boyd Circuit Court, and remanded for proceedings consistent with its Opinion. A full-text copy of the Appellate Court's May 15, 2020 Opinion is available at https://is.gd/3RXtvt from Leagle.com. Tonya S. Rager -- trager@ksattorneys.com -- David A. Trevey -- dtrevey@ksattorneys.com -- Justin T. Baxter, Lexington, Kentucky. Joshua J. Leckrone -- josh@wmrdefense.com -- Tamara Patterson, Lexington, Kentucky, BRIEFS FOR APPELLANTS. Tonya S. Rager, Lexington, Kentucky, ORAL ARGUMENT FOR APPELLANTS. Thomas K. Herren -- tom.herren@herrenadams.com -- Lexington, Kentucky, BRIEF AND ORAL ARGUMENT FOR APPELLEES. COPPER CANE: Kay Files False Labeling Suit ------------------------------------------ Barry N. Kay, individually and on behalf of all others similarly situated, Plaintiff, v. Copper Cane, LLC, Defendant, Case No. 20-cv-04068 (N.D. Cal., June 18, 2020), seeks restitution and disgorgement of all profits and unjust enrichment, statutory and punitive damages, injunctive relief, attorneys' fees and litigation costs, prejudgment and post-judgment interest and such other and further relief for violation of the California Consumers Legal Remedies Act, California False Advertising Law and California Unfair Competition Law. Copper Cane operates as Copper Cane Wines & Provisions, distributing wines labeled as "Elouan." The labels on Elouan-branded wines indicate that this wine originates from and is produced in various wine-growing American Viticultural Areas within the State of Oregon. However, contrary to the representations made on the labels, boxes, and marketing materials for Elouan, Kay claims that the wine was not actually made in the state of Oregon but instead vinified and bottled at Copper Cane's facilities in the Napa Valley in the State of California. [BN] Plaintiff is represented by: Edwin J. Kilpela, Esq. James P. McGraw, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 Email: ekilpela@carlsonlynch.com jmcgraw@carlsonlynch.com - and - Todd D. Carpenter, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1350 Columbia Street, Suite 603 San Diego, CA 92101 Tel: (619) 762-1910 Fax: (619) 756-6991 Email: tcarpenter@carlsonlynch.com - and - Stephen B. Murray, Esq. Stephen B. Murray, Jr., Esq. Caroline W. Thomas, Esq. MURRAY LAW FIRM 650 Poydras Street, Suite 2150 New Orleans, LA 70130 Telephone: (504) 525-8100 Facsimile: (504) 584-5249 Email: smurray@murray-lawfirm.com cthomas@murray-lawfirm.com smurrayjr@murray-lawfirm.com COSTCO WHOLESALE: Certification of Damages Class in Kurtz Upheld ---------------------------------------------------------------- In the case, D. JOSEPH KURTZ, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. COSTCO WHOLESALE CORPORATION, KIMBERLY-CLARK CORPORATION, Defendants-Appellants, Case Nos. 17-1856-cv, 17-1858-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit reversed the district court's certification of the injunctive relief class under Rule 23(b)(2), and affirmed the district court's certification of the damages class under Rule 23(b)(3), and remanded. D. Joseph Kurtz, on behalf of himself and all others similarly situated, filed suit against Costco and Kimberly-Clark alleging that the two companies falsely represented that their wipes were "flushable" and that purchasers of these supposedly "flushable" wipes had paid a price premium attributable to that misrepresentation. On March 27, 2017, the district court certified damages and injunctive relief classes pursuant to Federal Rule of Civil Procedure 23. The parties appealed. On the record then before it, the Court could not decide whether the Defendants' predominance argument had merit, and therefore it concluded that further development of the record was appropriate. The Court stayed further consideration of the injunctive relief classes and remanded to the district court. On remand, the district court received additional evidence, including supplemental expert reports, and conducted a hearing. On Oct. 25, 2019, the court issued a second decision. It concluded that the testimony of Colin Weir, the Plaintiff's expert, and Dr. Keith Ugone, Kimberly-Clark's expert, was admissible. The court also reaffirmed its prior certification decision, determining that the Plaintiff had demonstrated that he could prove injury and causation with common evidence, thereby satisfying Rule 23(b)(3)'s predominance requirement. The Defendants appealed again. Kimberly-Clark contends that Kurtz has not demonstrated that he is both an adequate and typical representative for the class. The Second Circuit disagrees. As the district court explained, the plumbing damages other class members might have suffered are not significantly higher than the statutory damages of $50 per purchase provided for under New York's General Business Law Section 349. Because the cost of litigating such plumbing damages claims likely would have outweighed any recovery, the district court concluded that the strategic decision to forgo plumbing damages and pursue statutory damages did not amount to a "fundamental" conflict. The Second Circuit discerns no abuse of discretion in that conclusion. Kimberly-Clark further argues that Kurtz cannot be a typical class member because he alleges that he continued to buy the wipes after he learned that they were not flushable. But their theory of injury is predicated on the existence of a price premium, so the harm he suffered occurred at the time of purchase. Accordingly, his purchasing history is largely irrelevant to typicality and does not warrant setting aside the court's certification order. Turning to whether the district court properly certified an injunctive relief class pursuant to Rule 23(b)(2), the Defendants argue that Kurtz lacks standing to seek an injunction because there is no indication that Kurtz will buy the Defendants' flushable wipes products in the future and, therefore, there is no likelihood of future injury. The Second Circuit agrees. Kurtz makes no assertion that he intends to purchase additional flushable wipes products -- from Costco, Kimberly-Clark, or any other company. Absent any stated intention to buy additional flushable wipes products in the future, Kurtz has not pleaded an injury that is "actual and imminent, not conjectural or hypothetical. Finally, the Second Circuit considers whether the district court properly concluded, on remand, that the Plaintiff's claims are susceptible to class-wide proof. Ultimately, the Second Circuit finds that none of the Defendants' critiques demonstrates that there exists some fatal dissimilarity among the class members that would make use of the class-action device inefficient or unfair. Instead, what they allege is a fatal similarity -- an alleged failure of proof as to an element of the Plaintiffs' cause of action. The Defendants' central contention is that Weir's analysis either does not or cannot establish a price premium because of issues such as an incomplete dataset, flawed parameters of the regression, or business considerations not captured by the model. A factfinder may ultimately agree. But if that is the case, then the class claims will fail as a unit. Accordingly, the district court did not abuse its discretion in concluding that class issues predominate, the Second Circuit opines. The Second Circuit has considered the Defendants' remaining arguments and find them to be without merit. Accordingly, the Second Circuit reversed the district court's certification of the injunctive relief class under Rule 23(b)(2); affirmed the district court's certification of the damages class under Rule 23(b)(3); and remanded. A full-text copy of the Second Circuit's June 26, 2020 Summary Order is available at https://is.gd/fT9Qfr from Leagle.com. Previous Order on Reassertion of Class Certification In a previous October 2019 Order, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York reasserted a decision certifying a Rule 23(b)(3) class in the cases, D. JOSEPH KURTZ, individually and on behalf of all others similarly situated, Plaintiff, v. KIMBERLY-CLARK CORPORATION & COSTCO WHOLESALE CORPORATION, Defendants. ANTHONY BELFIORE, individually and on behalf of all others similarly situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY, Defendant, Case Nos. 14-CV-1142, 14-CV-4090 (E.D. N.Y.). A full-text copy of the Court's Oct. 25, 2019 Order is available at https://is.gd/29wpRn from Leagle.com. The three classes certified in December 2017 for injunctive relief and damages classes of New York consumers who alleged a violation of New York State consumer law are: 1. All persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and March 1, 2017. 2. All persons and entities who purchased Kimberly-Clark Flushable Products in the State of New York between Feb. 21, 2008 and March 1, 2017. Kimberly-Clark Flushable Wipes are flushable, moist wipe products sold under the Cottonelle, Scott, Huggies, PullUps, U by Kotex, and Poise brands. 3. All persons and entities who purchased Kirkland Signature Flushable Wipes in the State of New York between July 1, 2011 and March 1, 2017. DOUGLAS WILENS -- DWilens@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Boca Raton, FL (Samuel H. Rudman, Mark S. Reich, and Vincent M. Serra, Robbins Geller Rudman & Dowd LLP, Melville, NY, on the briefs) for D. Joseph Kurtz, for Plaintiff-Appellee. BRIAN R. MATSUI -- bmatsui@mofo.com -- Morrison & Foerster LLP, Washington, DC (Bryan J. Leitch, James M. Bergin, and Kayvan Betteridge Sadeghi, Morrison & Foerster LLP, Washington, DC; Adam J. Hunt and Lena H. Hughes, Morrison & Foerster LLP, New York, NY, on the briefs) for Costco Wholesale Corporation EAMON P. JOYCE , Sidley Austin LLP, New York, NY, (Kwaku A. Akowuah, Sidley Austin LLP, New York, NY; Kara L. McCall and Daniel A. Spira, Sidley Austin LLP, Chicago, IL, on the briefs) for Kimberly-Clark Corporation, for Defendants-Appellants. COTTON PATCH: Norred FLSA Suit Administratively Closed ------------------------------------------------------ Judge A. Joe Fish of the U.S. District Court for the Northern District of Texas has ordered for the administrative closing of the case captioned IAN NORRED, Individually, and on behalf of all others similarly situated under 29 U.S.C Sec. 216(b),). Plaintiffs, v. COTTON PATCH CAFE, LLC, Defendant, Civil Action No. 3:19-CV-1010-G (N.D. Tex.). Before the closing of the case, Judge Fish granted the Defendant's motion to compel arbitration and stay proceedings in the case pending arbitration. Lead Plaintiff Norred filed suit against his employer, Cotton Patch, on April 26, 2019, alleging violations of the Fair Labor Standards Act ("FLSA"). On June 4, 2019, another former Cotton Patch employee, Rain Bennett, joined Norred as a named Plaintiff. The Defendant operates a chain of Cotton Patch Cafe restaurants. Norred worked as a server at one of these restaurants from December 2017 until April 2019. Bennett worked as a server at a Cotton Patch restaurant from June of 2018 until March or April of 2019. On Dec. 27 or 28, 2017, Norred underwent Cotton Patch's onboarding process for new hires. The process required him to fill out various forms on a computer. During his onboarding, Norred electronically signed a document titled "Notice to Employees," which contains a section titled "Arbitration Acknowledgment, Safety Pledge and Receipt," and another titled "Agreement to Arbitrate." Bennett also underwent the onboarding process and electronically signed the notice to employees on her first day of employment at Cotton Patch. Norred was 17 years old when he signed the notice to employees and began working for Cotton Patch in December of 2017. He turned 18 on July 9, 2018, and stopped working at Cotton Patch on April 30, 2019. Norred filed the complaint in the action on April 26, 2019, alleging that Cotton Patch has failed to adequately compensate him and other similarly situated employees, in violation of the FLSA. Bennett filed her notice of consent on June 4, 2019, and Cotton Patch filed the instant motion to compel arbitration on June 7, 2019. In its motion, Cotton Patch asserts that the Plaintiffs' FLSA claim is subject to the terms of the notice to employees and the arbitration agreement, and that, in consequence, the Court should stay proceedings in this case and order the Plaintiffs to arbitrate their claims, or, in the alternative, that the Court should dismiss the action with prejudice. Upon review of the briefing and evidence submitted by the parties, Judge Fish concludes that the Defendant has met its burden to establish by a preponderance of the evidence that Cotton Patch entered valid contracts with both Norred and Bennett, the terms of which are comprised of both the notice to employees and the arbitration agreement. The notice to employees that both Norred and Bennett signed directly references the arbitration agreement. Furthermore, the aforementioned hyperlink that leads to the arbitration agreement appears at the top of the notice to employees in underlined text that reads "View Agreement." Taken together, these provisions establish that the notice to employees did not comprise the "full document" that the parties contemplated at the time of signing, that the arbitration agreement that became effective Aug. 1, 2014 informs the scope of the notice to employees, and that Norred and Bennett either read, or had the opportunity to read, the arbitration agreement prior to signing the notice to employees. Thus, not only does the notice to employees expressly reference the arbitration agreement, the signed notice to employees at the time of the signature can be shown from its contents to be based on an adoption of the then existing unsigned arbitration agreement. The Judge therefore concludes that the notice to employees incorporates by reference the arbitration agreement. Having concluded that the notice to employees incorporates the arbitration agreement, the Judge concludes that the arbitration contracts between Cotton Patch and the Plaintiffs are supported by mutual consideration. Thus, all parties to the contracts incurred a legal detriment by foregoing the right to bring claims covered by the arbitration agreement in a court of law, and the contracts are supported by mutual consideration. The Judge therefore concludes that the arbitration contracts between Cotton Patch and the Plaintiffs are valid. In addition to the Plaintiffs' arguments concerning mutual assent and consideration, they assert various defenses to the enforceability of the arbitration contracts. Namely, the Plaintiffs argue that the arbitration contracts are unenforceable because: 1) the contracts are illusory; 2) the arbitration agreement applies only to current Cotton Patch employees, not past employees; 3) the contract between Norred and Cotton Patch is voidable and disaffirmed, as Norred was a minor when he signed the notice to employees; and 4) the arbitration contracts are unconscionable. The Judget finds none of these arguments persuasive. He concludes that (i) the arbitration contracts between Cotton Patch and the plaintiffs are both valid and enforceable; (ii) the Plaintiffs' FLSA claim falls within the scope of the arbitration contract, even under the more restrictive language of the notice to employees; (iii) the parties do not raise any legal constraints external to the arbitration contract, nor is the Court aware of any, therefore, he need not address whether any constraints foreclose arbitration of the dispute. In sum, Judge Fish granted the Defendant's motion to compel arbitration and stay proceedings in the case pending arbitration. The FAA directs federal district courts to stay proceedings pending arbitration. A full-text copy of the Court's Memorandum Opinion & Order is available at https://is.gd/ec1T4l from Leagle.com. Ian Norred, Individually, and on behalf of all others similarly situated under 29 U.S.C. 216(b), Plaintiff, represented by Drew N. Herrmann -- drew@herrmannlaw.com -- Hermann Law PLLC & Pamela Herrmann -- pamela@herrmannlaw.com -- Herrmann Law PLLC. Cotton Patch Cafe LLC, Defendant, represented by Michael V. Abcarian -- mabcarian@fisherphillips.com -- Fisher & Phillips LLP & John Keith Skousen -- jskousen@fisherphillips.com -- Fisher & Phillips LLP. DARTMOUTH COLLEGE: $14MM Student Harassment Pact Gets Final Nod --------------------------------------------------------------- Bloomberg Law reports that a federal court granted final approval of Dartmouth College's $14 million class action settlement with a group of female students who alleged sexual assault and rampant harassment by three professors. The pact, which the U.S. District Court for the District of New Hampshire preliminarily approved Jan. 29, resolves a lawsuit brought by Kristina Rapuano and eight other women on behalf of themselves and more than 80 other current and former female students and teaching and research assistants. They accused the university of ignoring decades of abuse by the professors. [GN] DEFENDERS INC: Cox Labor Suit Dismissed With Prejudice ------------------------------------------------------ Judge Dale S. Fischer of the U.S. District Court for the Central District of California has dismissed the case, STEVEN COX, an individual, FRANK MATA, an individual, OSCAR SEPULVEDA, an individual, for themselves and on behalf of others similarly situated, Plaintiffs, v. DEFENDERS, INC., a corporation, and DOES 1 through 10, inclusive, Defendants, Case No. 2:19-CV-06019 DSF (PJW) (C.D. Cal.), in its entirety, with prejudice as to the Plaintiffs' individual claims and without prejudice as to their putative class and representative claims under the Private Attorneys' General Act of 2004. The Court entered the Order pursuant to the parties' Joint Stipulation for Dismissal of Plaintiffs' Individual Claims with Prejudice and Putative Class and PAGA Claims without Prejudice, filed on Oct. 23, 2019. Each party will bear his/its own costs and fees. A full-text copy of the Court's Order is available at https://is.gd/uSlfsV from Leagle.com. Steven Cox, Frank Mata & Oscar Sepulveda, Plaintiffs, represented by James H. Cordes -- jim@jamescordes.com -- James H. Cordes Law Offices & Angelica J. Caro -- ajc@jamescordes.com -- James H. Cordes and Associates. Defenders, Inc., Defendant, represented by Eric J. Gitig -- Eric.Gitig@jacksonlewis.com -- Jackson Lewis PC, Talya Friedman -- Talya.Friedman@jacksonlewis.com -- Jackson Lewis PC & Mia D. Farber -- Mia.Farber@jacksonlewis.com -- Jackson Lewis PC. EL AL: Faces Class Action Over Unpaid Ticket Refunds ---------------------------------------------------- David Kaminski-Morrow, writing for FlightGlobal, reports that Israeli flag-carrier El Al is facing a lawsuit over allegations that it failed to reimburse customers for cancelled flights, and did not inform the public about their right to receive a refund. The class-action suit has been brought before a district court by all passengers who were due to fly from 1 February but whose flights were cancelled, and who allegedly did not receive a refund--or information about refunds--within the required time period. It argues that El Al has violated aviation legislation and a number of other laws. The plaintiffs are seeking collective reimbursement of $400 million, says the airline, as part of "various remedies" against the company. El Al says it will "study the application" before submitting a response. But it points out that new temporary legislation going through the Israeli Knesset is intended to amend the country's aviation law in response to the coronavirus crisis. It will extend the period for airlines to compensate passengers to 90 days from the flight date, or 30 days from the directive's approval following a third reading in the Knesset. This temporary law would apply retroactively to flights cancelled from 1 March, says El Al, although it says there is "no certainty" that the legislation will be implemented. El Al is under financial pressure as a result of the crisis and is engaged in a series of negotiations with the government and employees in order to seal a $400 million funding package, which is likely to comprise a loan and issue of new shares. [GN] ESTRELLITA POBLANA: de la Cruz Sues Over Unpaid Minimum, OT Wages ----------------------------------------------------------------- Ruben Marquez de la Cruz, individually and on behalf of others similarly situated v. ESTRELLITA POBLANA, INC. (D/B/A ESTRELLITA POBLANA), GEMA CORP. (D/B/A ESTRELLITA MIXTECA), LEONARDO GONZALEZ , and ANTONIO DOE, Case No. 1:20-cv-05437 (S.D.N.Y., July 15, 2020), is brought for alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938. The lawsuit is also brought for violations of the New York Labor Law and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. The Plaintiff worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked, according to the complaint. Rather, the Defendants failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which he had to work over 10 hours a day. Plaintiff Marquez de la Cruz was employed as a cook at the Defendants' restaurants. He also alleges that the Defendants repeatedly failed to pay the Plaintiff wages on a timely basis. He adds that the Defendants maintained a policy and practice of requiring the Plaintiff to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations. The Defendants own, operate, or control two Mexican Restaurants, located in Bronx, New York, under the names "Estrellita Poblana" and "Estrellita Mixteca."[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 EVERGREEN LIVING: Hicks BIPA Class Suit Removed to N.D. Illinois ---------------------------------------------------------------- The class action lawsuit captioned as JARITA HICKS, on behalf of herself and all others similarly situated v. EVERGREEN LIVING & REHAB CENTER, LLC d/b/a THE VILLA AT EVERGREEN PARK and AVANTARA EVERGREEN PARK, Case No. 2020CH04423 (Filed June 2, 2020), was removed from the Illinois Circuit Court, Cook County, to the U.S. District Court for the Northern District of Illinois on July 9, 2020. The Northern District of Illinois Court Clerk assigned Case No. 1:20-cv-04032 to the proceeding. The Plaintiff alleges that Evergreen violated the Biometric Information Privacy Act by using a "biometric time tracking system" to "collect" her "fingerprint" without first complying with BIPA's policy, notice and consent requirements. Evergreen operates a nursing facility.[BN] The Plaintiff is represented by: Alejandro Caffarelli, Esq. Lorrie T. Peeters, Esq. Katherine Stryker, Esq. CAFFARELLI & ASSOCIATES LTD. 224 N. Michigan Ave., Ste. 300 Chicago, IL 60604 E-mail: lpeeters@caffarelli.com acaffarelli@caffarelli.com kstryker@caffarelli.com The Defendant Evergreen is represented by: Anne E. Larson, Esq. Cyle R. Catlett, Esq. Melissa A. Ortega, Esq. OGLETREE , DEAKINS, NASH, SMOAK & STEWART, P.C. 155 North Wacker Drive, Suite 4300 Chicago, IL 60606 Telephone: 312 558 1220 Facsimile: 312 807 3619 E-mail: anne.larson@ogletree.com cyle.catlett@ogletree.com melissa.ortega@ogletree.com FACEFIRST INC: Faces Vance Suit Over Collection of Biometric Data ----------------------------------------------------------------- STEVEN VANCE and TIM JANECYK, for themselves and others similarly situated v. FACEFIRST, INC., Case No. 2:20-cv-06244-CBM-KS (C.D. Cal., July 14, 2020), alleges that the Defendant violated Illinois' Biometric Information Privacy Act by unlawfully collecting, obtaining, storing, using, possessing and profiting from the biometric identifiers and information of the Plaintiffs and other Illinois residents and citizens. Facial recognition technology--once a thing only seen in movies--now threatens to end individual privacy, according to the complaint. Public and private entities increasingly deploy facial recognition products to determine a private citizen's identities, as well as other personal information, such as their addresses, phone numbers, whereabouts and acquaintances. The Plaintiffs contend that unlike the way facial recognition technology is depicted in the movies, the actual technology is plagued by a major problem--it is inaccurate, especially when it comes to correctly identifying women and people of color. In recent years, an "arms race" has developed amongst for-profit companies seeking to become market leaders in the facial recognition arena. Critical to winning this battle has been to the ability to claim a low identification error rate--i.e., the for-profit companies want to herald the accuracy of their products, including accuracy in identifying woman and people of color. The Plaintiffs were--and remain--Illinois residents, who lived in the Northern District of Illinois. FaceFirst collected, obtained, stored, used, possessed and profited from Plaintiff Vance's biometric identifiers and information, namely, facial geometric scans of Plaintiff Vance.[BN] The Plaintiffs are represented by: Megan Pierce, Esq. Michael Kanovitz, Esq. Scott R. Drury, Esq. LOEVY & LOEVY 311 N. Aberdeen, 3rd Floor Chicago, IL 60607 Telephone: (312) 253-5900 Facsimile: (312) 243-5902 E-mail: megan@loevy.com mike@loevy.com drury@loevy.com - and - Gary Lynch, Esq. Katrina Carroll, Esq. Kyle A. Shamberg, Esq. Nicholas R. Lange, Esq. CARLSON LYNCH LLP 111 West Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: glynch@carlsonlynch.com kcarroll@carlsonlynch.com kshamberg@carlsonlynch.com nlange@carlsonlynch.com FIRST NATIONAL: Remand of Zielinski Suit Stayed Pending Appeal -------------------------------------------------------------- In the case, BENJAMIN ZIELINSKI, Plaintiff, v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, Defendant, Case No. 3:19-cv-06244-RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington, Tacoma, granted the Defendant's Motion to Stay Enforcement of Remand Order Pending Appeal to the Ninth Circuit. On March 26, 2020, the Washington District Court granted Plaintiff Zielinski's Motion to Remand on the basis that First National's estimate of the amount in controversy was based in part on unreasonable assumptions. Despite finding issues with both parties' methods of calculation, the District Court remanded the class action to state court because First National had not met its burden under Ibarra v. Manheim Investments, Inc. First National argues that its appeal raises the important legal question of what constitutes a "reasonable assumption" by a defendant in a CAFA case when a plaintiff's class definition is so specific that a defendant would have to investigate every potential class member to establish federal jurisdiction. First National further argues that the possibility of spending time and money on duplicative litigation in state court if the case is sent back to federal court constitutes irreparable injury. First National also points out that any stay would be brief in light of CAFA's requirement that appeals from remand orders be resolved within 60 days. There is therefore little possibility of injury to Zielinski. Zielinski responds (belatedly) that, because the remand order has already been issued, the Court now lacks jurisdiction to entertain First National's Motion. Alternatively, Zielinski argues that First National cannot be harmed because Zielinski has promised not to move forward with the state court action until the appeal is resolved. Even if the case did move forward, Zielinski points out that discovery in the state court proceedings would also be useful if the case is removed to federal court. Further, Zielinski contends that First National's appeal does not raise novel legal questions and will surely be denied. Judge Leighton disagrees with Zielinski that jurisdiction is lacking. As many courts have already observed, CAFA's provision allowing defendants to appeal remand orders would be somewhat toothless if they were unable to obtain a stay from the district court. The District Court has limited jurisdiction to resolve First National's Motion. The Judge also agrees with First National that a stay is appropriate in the case. First National's appeal raises serious questions about how the Ninth Circuit's standard for evaluating calculations of the amount in controversy applies in cases such as this where the plaintiff has limited their class definition in multiple nuanced ways. Indeed, the District Court found remand to be a close question. And while the Judge agrees that discovery in state court could be equally useful if the case was sent back to federal court, the parties would still likely expend some duplicative efforts in state court. Zielinski's promise not to advance the case in state court is also not fully reassuring, since the court may advance the case on its own. The representation does, however, demonstrate that Zielinski does not stand to be injured by a stay because he already intends to wait until the appeal is resolved before moving forward with his lawsuit. Indeed, if Zielinski's promise is genuine, his motivation for opposing First National's Motion is somewhat mysterious. Finally, the District Court finds that the likelihood of saving judicial resources means that a stay is in the public interest. For these reasons, Judge Leighton granted First National's Motion to Stay Enforcement of Remand Order Pending Appeal to the Ninth Circuit. A full-text copy of the District Court's May 15, 2020 Order is available at https://is.gd/zawsKs from Leagle.com. FSD PHARMA: Court Orders Virtual Pre-Certification Motion Hearing ----------------------------------------------------------------- McCarthy Tetrault LLP, in an article for Mondaq, reports that in a matter of a few months, the coronavirus pandemic ("COVID-19") has radically altered the normal practice of Ontario courts. The case management decision in Miller v. FSD Pharma, Inc., 2020 ONSC 3291 ("Miller") provides a good snapshot of the steps taken by the Ontario judiciary to resume "normal" court operations amidst COVID-19. It is also indicative of the fact that there has been a shift in the mindset of courts and judges regarding the use of technology in proceedings with the result that even in a post COVID-19 world, there is likely to be a "new normal" -- one that embraces technology irrespective of the complexity of the proceeding. The parties in Miller had a two-day pre-certification motion in a proposed class action that had been scheduled for early May 2020. However, following the decision to suspend regular court operations in Ontario in March 2020, the parties' case management judge, Morgan J., issued an endorsement on April 14, 2020 to adjourn the motion until late June 2020. Justice Morgan stated that the purpose of the adjournment was to "give some time for the suspension of regular court operations due to the Coronavirus pandemic to run its course and for the courts to resume regular operations." In the weeks that followed the decision to adjourn, "regular" court operations took on an entirely new meaning. The Toronto Expansion Protocol for Court Hearings During COVID-19 issued by the Regional Senior Justice for Toronto, Firestone J., specifically indicated that pre-certification motions in proposed class actions were among the matters that could be heard virtually. Despite the plaintiffs' preference to wait so that the motion could be heard in person in court, in light of the above direction and Rule 1.08 of the Rules of Civil Procedure, which authorizes the court to order that a proceeding be conducted by video conference with or without the consent of the parties, Morgan J. ordered the motion scheduled for late June to proceed virtually. He stated that, although he had initially been "wary" of proceeding virtually due to fairness concerns, in a matter of weeks, he had "become convinced that counsel and the courts have developed the ability to conduct these hearings in a way that minimizes any of the problems originally foreseen with them." Irrespective of the size, complexity, or nature of the motion (i.e. interim or final), Morgan J. said there was nothing "inherently unfair to either side". Having overcome the fairness hurdle, Morgan J. addressed some of the logistical and practical challenges to proceeding virtually, including a voluminous evidentiary record and distractions at home. He recognized that addressing these challenges requires the cooperation of the parties and the judge overseeing the matter. In the case at hand, Morgan J. was confident that, despite the adversarial positon of the parties, they appeared to have developed a professional and civil working relationship that would enable them to "rise to the challenge of conducting a complex hearing by video conference." It is likely, if not inevitable, that when the courts resume regular operations, what is normal will have taken on a new meaning. Judges will expect that parties will continue to "rise to the challenge". There will, of course, still be in-person motions and trials, but advocates will also need to be conversant with mediums such as Zoom and other equivalent video conference technologies to advocate their client's position even if they are not in a traditional courtroom setting. [GN] GENERAL MOTORS: Claims in Weiss Suit Over Faulty Drivelines Trimmed ------------------------------------------------------------------- In the case, Douglas Weiss, Plaintiff, v. General Motors LLC, Defendant, Civil Action No. 19-21552-Civ-Scola (S.D. Fla.), Judge Robert N. Scola of the U.S. District Court for the Southern District of Florida granted in part and denied in part the Defendant's motion to dismiss the Plaintiff's complaint. Weiss purchased a new 2015 General Motors Chevrolet Silverado from Auto Nation Chevy in Coral Gables, Florida on Sept. 10, 2015. According to the Plaintiff, GM vehicles are equipped with defective drivelines. The defective drivelines cause the GM vehicles to shake violently when they reach certain interstate cruising speeds. The defect is often referred to as the "Chevy Shake." The cause of the defect is a defective drive shaft. Drivers have reported that the defect makes the vehicles feel unstable at high speeds and can cause a loss of control. Over time, the defect can cause the part to deteriorate and eventually fail as the shaft drops to the ground and renders the vehicle undriveable. The Plaintiff commenced the action on behalf of himself and a class of individuals who purchased or leased a 2015 or newer Cadillac Escalade, 2014 or newer Chevrolet Silverado, 2015 or newer Chevrolet Suburban, 2015 or newer Chevrolet Tahoe, 2014 or newer GMC Sierra, or 2015 or newer GMC Yukon/Yukon XL. He asserts claims on behalf of a nationwide class and a Florida subclass. The Plaintiff alleges that GM was on notice of the Chevy Shake through its own knowledge about the material, design, and manufacture of the part, feedback from customers, complaints in the National Highway Transportation Safety Administration ("NHTSA") database, online complaints in web forums, and news reports. His complaint details a number of online consumer complaints. When customers brought their vehicles to GM dealerships, GM would orally confirm the presence of the defect after a test drive but then later misrepresent the problem to avoid having to address it. GM acknowledged the large volume of complaints and continued to provide vague representations without suggesting a concrete solution. NHTSA also reported over 100 complaints regarding the Chevy Shake. The consumer complaints filed with NHTSA are delivered to GM and reviewed by GM's engineers. The complaint also includes anecdotes of customers who have replaced the aluminum drive shaft themselves and successfully fixed the problem. In GM's technical service bulletins, GM admitted that drive shafts could be a source of the problem and further admitted that there have been many cases of dented propeller shafts. It instructed its dealers to inspect the drive shaft, noted that any dents or damage to the drive shaft requires replacement, but then permitted only replacement of its defective aluminum drive shaft with the same defective drive shaft. GM has issued half a decade of service bulletins regarding the Chevy Shake but systematically refused to disclose the known defect and honor its warranties to customers. GM's vehicles are sold with a 5-year/100,000 Powertrain Limited Warranty. It is commonly understood that the drive shaft in sport utility vehicles and passenger trucks should have an expected useful life of at least 75,000 miles. GM customers have spent substantial costs attempting to fix the Chevy Shake but GM has remained publicly silent regarding the defect. Through his complaint, the Plaintiff seeks damages under the Magnuson-Moss Warranty Act (Count I), breach of express warranties (Count II), breach of implied warranties (Count III), and violation of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) (Count IV). Count I is brought on behalf of a nation-wide class and Counts II-IV are brought on behalf of the Florida sub-class. The matter before the Court is the Defendant's motion to dismiss. In its motion to dismiss, GM argues that the Plaintiff lacks standing to sue on behalf of consumers who purchased vehicles other than the 2015 Chevrolet Silverado 1500 that he owns. The Defendant next argues that Count II for breach of the express warranty should be dismissed because (1) the GM warranty does not cover design defects, only materials and workmanship repairs and (2) the Plaintiff has not alleged that his vehicle was within the time and mileage limitations of the warranty when he brought it to the GM dealership. The Defendant presents two arguments in support of its motion to dismiss Count III, breach of implied warranty. First, it argues that the Plaintiff lacks privity with GM because Plaintiff purchased the vehicle from a dealership. Second, the Defendant argues that the Plaintiff has failed to allege that the vehicle is unmerchantable because Plaintiff continued to drive the vehicle. The Defendant moves to dismiss the Plaintiff's FDUTPA claim (Count IV) on two grounds: (1) the Plaintiff's FDUTPA claim does not meet Rule 9(b)'s heightened pleading requirements and (2) the Plaintiff did not allege that the Defendant knew of the defect at the time he purchased the vehicle. Judge Scola granted in part and denied in part the Defendant's motion. The Judge dismissed the Defendant's claims as to the nationwide class are dismissed. Accordingly, Count I will remain as to the Florida sub-class only. The Judge denied the Defendant's motion as to Counts II, III, and IV. As to Count II, the Judge finds a plain reading of the Powertrain Warranty demonstrates that it covers "repairs to correct any vehicle defect" and not "slight noise, vibrations, or other normal characteristics of the vehicle related to materials or workmanship." GM's reading of the sentence would require the Court to insert another comma after "vehicle" so that the main clause would read "the warranty covers repairs to correct any vehicle defect related to materials or workmanship." The Judge will not adopt such a strained reading of the Powertrain Warranty's plain language. He thus denied GM's motion to dismiss the express warranty claim. As to Count III, the Judge finds that the Plaintiff has alleged facts that, if proven, would show that the Chevy Shake affects the drivability and safety of the car. At this stage of the proceedings, that is all that is required. As to Count IV, the Judge finds that a plain reading of the statute indicates that the Plaintiff is entitled to declaratory and injunctive relief without regard to any other remedy or relief to which a person is entitled. There is no requirement that a plaintiff show an ongoing practice or irreparable harm, and declaratory relief is available regardless of whether an adequate remedy at law also exists. Thus, Judge Scola denied the Defendant's motion to strike the Plaintiff's request for injunctive and declaratory relief. Because the Court declined to dismiss Counts II and III, the Plaintiff's Magnuson-Moss Warranty act claim (Count I) survives with respect to the Florida class only. The Court denied as moot the Defendant's motion to stay discovery. A full-text copy of the Court's Order is available at https://is.gd/GSe7FJ from Leagle.com. In a more recent order, dated July 15, 2020, the Court denied a Motion for Extension of Time to pursue discovery relief, as no good cause was shown why such an extension was required. The parties' agreement does not by itself warrant an extension, the Court finds. Douglas Weiss, on behalf of himself and all others similarly situated, Plaintiff, represented by Adam W. Pittman, Cory Watson, PC, pro hac vice, Hirlye R. Lutz, III, Cory Watson PC, pro hac vice, Jason S. Rathod -- jrathod@classlawdc.com -- Migliaccio & Rathod LLP, pro hac vice, Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- Migliaccio & Rathod, LLP, pro hac vice & Frank Jerome Tapley -- jtapley@corywatson.com -- Cory Watson, P.C. General Motors LLC, Defendant, represented by Adam Reinke -- areinke@kslaw.com -- King & Spalding LLP, pro hac vice, Harold E. Franklin, Jr. -- hfranklin@kslaw.com -- King, Spalding, Stephen B. Devereaux, King & Spalding LLP, pro hac vice, Susan M. Clare -- sclare@kslaw.com -- King & Spalding LLP, pro hac vice & Ursula Marie Henninger -- uhenninger@kslaw.com -- King & Spalding LLP. HARTFORD FINANCIAL: Hodges, Three Commas Slam Denied Insurance -------------------------------------------------------------- Kennedy Hodges & Associates Ltd., LLP and Three Commas, LLC, individually and on behalf of all others similarly situated, Plaintiffs, v. The Hartford Financial Services Group, Inc. and Twin City Fire Insurance Company, Defendants, Case No. 20-cv-00853 (D. Conn., June 19, 2020), seeks injunctive relief, prejudgment and post-judgment interest at the maximum rate, attorney's fees and costs and such other relief from breach of contract. Kennedy Hodges & Associates operates a legal practice in Houston, Texas while Three Commas owns the property where Kennedy Hodges & Associates occupies. Plaintiffs purchased all-risk commercial property insurance policies from Hartford and Twin City to protect them in the event of property loss and business interruption. But during the COVID-19 pandemic, both denied coverage despite that policy does not contain an exclusion for pandemic and/or virus-related losses, asserts the complaint. [BN] Plaintiff is represented by: Mark P. Kindall, Esq. Douglas P. Needham, Esq. IZARD, KINDALL & RAABE LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Tel: (860) 493-6292 Fax: (860) 493-6290 Email: mkindall@ikrlaw.com dneedham@ikrlaw.com - and - Gary F. Lynch, Esq. Kelly K. Iverson, Esq. Edward W. Ciolko, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 Email: glynch@carlsonlynch.com eciolko@carlsonlynch.com kiverson@carlsonlynch.com HARVEY WEINSTEIN: Women Object to Class Action Settlement --------------------------------------------------------- Ashley Cullins, writing for Hollywood Reporter, reports that one woman says she was dropped by her lawyers for criticizing the terms and another says the New York Attorney General's Office attempted to bully her into settling. One of the women at the core of a class action complaint against Harvey Weinstein says she was fired as a client by her lawyers for not being "deferential" enough and for voicing her concerns about the terms of a proposed settlement. She's one of several Harvey Weinstein accusers asking a New York federal judge to deny preliminary approval of the deal. Zoe Brock on July 10 filed an opposition to the settlement and told the court that she'd been dropped by Elizabeth Fegan. In a Dec. 18, 2019, email attached to the filing, Fegan writes, "It is clear that our relationship has deteriorated to the point that it cannot be reconciled," and advises Brock to find new attorneys either at the other firm representing the Weinstein class of accusers, Hagens Berman, or elsewhere. "While Ms. Brock is a named Plaintiff in this case and is listed in the Amended Complaint as a class representative, she was excluded from the settlement negotiations in this matter," writes attorney Daniel D. Williams in the filing. "When proposed settlement terms were disclosed to Ms. Brock last fall, she vocally objected that the terms of the settlement were inadequate to hold Mr. Weinstein, his enablers, and his companies responsible for the harm they had caused. Ms. Brock also had voiced serious concerns that the compensation proposed for Fegan and Hagans was excessive and did not put their clients first. Once Ms. Brock voiced those concerns, Attorney Fegan notified Ms. Brock that she would no longer represent her." In a footnote in Fegan's reply to the filing, the attorney disputes that characterization. "Ms. Brock has put what she asserts is the reason for Fegan Scott's termination of her at issue, apparently waiving the attorney-client privilege," it reads. "While her accusations are inaccurate, they are a red herring not relevant to preliminary approval. If the Court would like a declaration regarding the facts and timeline, Ms. Fegan will provide one upon the Court's request." Brock is arguing the settlement should be rejected because the victims' fund is being funded by insurance companies, so Weinstein and the other executives who are accused of enabling the alleged conduct are paying nothing. "It defies credulity to suggest that neither of the Weinstein brothers nor other alleged conspirators have any money to contribute to the settlement," writes Williams. "Likewise, many of the officers and directors who facilitated or turned a blind eye to Mr. Weinstein's conduct appear to be very wealthy individuals, who could withstand a significant judgment even if The Weinstein Company were dissolved in bankruptcy and no indemnification was available because the relevant insurance policies were exhausted. The settlement papers before the Court do not explain why these wealthy men are being asked to contribute literally nothing to a settlement that releases them from the potential of huge damages judgments against them." Brock also takes issue with the claims process, arguing the disclosures that it requires will "inhibit and obstruct the most traumatized potential claimants," as well as the criteria that will be used by the special master to allocate awards. Fegan replied in a July 12 filing that calls Brock's objection "premature and misinformed." While every class member has a right to object and be heard, she argues, "there's a time and a place for objections to a class action settlement, and this is not it." That time, Fegan argues, is when the court is considering final approval. "The typical settlement approval sequence--preliminary approval and issuance of notice, followed by opt-outs and objections, and then final approval--makes sense and serves important purposes," writes Fegan. The attorney also argues that Brock's claim that Weinstein attempted to assault her in 1996 during the Cannes Film Festival was dismissed for being outside the statute of limitations and likely wouldn't be revived on appeal. "Absent this Settlement, Ms. Brock is likely to receive nothing." Fegan also defends the claims process, arguing it is based on claim forms used in other sex abuse and discrimination matters including the $215 million settlement in the highly publicized class action against USC gynecologist George Tyndall. Meanwhile, former Weinstein Co. employee Alexandra Canosa on July 13 filed her own objection to the settlement. She alleges there were "multiple attempts to scare her into settling"--including a "heavy-handed" attempt by someone from the New York Attorney General's Office during a Skype interview. Canosa alleges that the agreement is structured to penalize non-settling class members and rewards Weinstein at the expense of the women who accuse him of abuse and harassment. "Elementary decency, fairness and justice would not permit a convicted rapist to receive settlement monies at the expense of his victims," writes attorney Thomas P. Giuffra. "To punish the non-settling Plaintiffs for not settling, HW and his brother will be provided with a $1,500,000.00 defense fund taken from the monies that would otherwise have gone to Ms. Canosa, Weidil David and Dominique Huett so that he can fight their claims. . . . This provision standing alone demonstrates what an unjust and vile agreement the Court is being asked to approve." Canosa also notes that if the settlement is finalized, TWC--her former employer--will be dismissed from her lawsuit against Weinstein and she'll be forced to accept a "paltry" $25,000 from the company. She also argues that even if she does accept the settlement now, she's being penalized $600,000 for not agreeing to settle sooner. Like Brock, Canosa takes issue with the insurance companies footing the bill for the settlement and attorneys' fees. Also on July 13, Douglas Wigdor and Kevin Mintzer, who represent several women who have claims against Weinstein, filed an opposition to the settlement. The filing on behalf of Wedil David, Dominique Huett, Kaja Sokola, Rowena Chiu, Zelda Perkins and Tarale Wulff echoes many of the same concerns. The attorneys in a statement to the press described it as the most one-sided and unfair settlement they've seen proposed to a court. "Under no set of circumstances should the uber-wealthy former directors, including Harvey and Bob Weinstein, receive more money than a class of rape and sexual assault survivors," it reads, in part. "The efforts being made to prevent women from continuing with their litigation and holding those responsible for their trauma accountable are simply unprecedented. We are heartened by the growing opposition to this settlement and are hopeful that it will be rejected." Another objection was filed on July 13 by a group of four anonymous women who say they were sexually assaulted by Weinstein. Their attorney Jordan K. Merson wrote in a filing that his clients "strenuously, vociferously and wholly object to the proposed 'settlement.'" Attorneys for Miriam "Mimi" Haley, who was among the victims that testified at Weinstein's criminal trial, on July 13 sent a letter to U.S. DIstrict Judge Alvin K. Hellerstein asking him to delay ruling on the motion for preliminary approval so they can assess whether their client should intervene in the proceedings. States the letter, "Although we have only begun exploring the terms of this complex proposed settlement, it is clear even from our initial research that the terms of the proposed mandatory settlement class would unlawfully deprive Ms. Haley of her right to opt out if she decides to pursue her unusually strong civil claims against Harvey Weinstein and/or his aiders and abettors." Because Weinstein's conviction is tied, in part, to Haley's testimony, the statute of limitations for her to bring a civil claim is extended to five years from the date of that conviction. "Moreover, Weinstein's criminal conviction would collaterally stop him from relitigating in Ms. Haley's potential civil action whether he raped her, and she therefore could move for summary judgment immediately and would be entitled to a judgment as a matter of law regarding Weinstein's liability in any civil action she might file against him," writes attorney John Cuti in the letter. "But counsel in this action would require Ms. Haley to forfeit those rights if this proposed settlement is approved. Under the terms of the proposed settlement, Ms. Haley, who was assaulted on July 10, 2006, would be a member of the putative Post-2005 Subclass. No member of that putative Subclass has the right to opt out." It's worth noting that, even if Hellerstein doesn't deny preliminary approval, if enough women object the settlement could fall through. There is an opt-out threshold for certain members of the class that would allow the defendants to withdraw from the deal. That number is currently not public -- and attorneys for the class are fighting to keep it that way. Fegan filed a motion asking the court to keep it confidential to "discourage third parties from soliciting class members to opt out." Weinstein's lawyer Imran H. Ansari of Aidala, Bertuna & Kamins on July 13 sent The Hollywood Reporter a statement in response to the objections. "Mr. Weinstein does not intend to forfeit his legal and constitutional right to mount a defense to the accusations against him and has every intention to defend against the claims made against him by those who are not partaking in the settlement," said Ansari. "The practical reality is that those who opt out of the settlement face an uncertain financial recovery, with The Weinstein Company bankrupt, and Mr. Weinstein defending legal matters, facing debt and judgments, frozen assets, and a line of creditors looking for compensation. Mr. Weinstein's current and future financial state is far from healthy, not only has his personal liberty been taken from him, but his financial liberty as well." A hearing was set for July 14. Here's how long each of the parties' legal teams were set to argue: the class (15 minutes), Weinstein (5 minutes), The Weinstein Co. (5 minutes), the New York Attorney General's Office (5 minutes), Brock (2 minutes), Canosa (2 minutes), Haley (2 minutes), and Wigdor will get 5 minutes total on behalf of Chiu, David, Huett, Perkins, Sokola and Wulff. [GN] HEALTHY FRESH: Reyes Sues Over Unpaid Minimum and Overtime Wages ---------------------------------------------------------------- Paul Reyes and Miguel Angel Reyes, individually and on behalf of others similarly situated v. HEALTHY FRESH JUICE INC. (D/B/A HEALTHY FRESH), JAIME BAEZA, and IVAN ZUNIGA, Case No. 1:20-cv-05452 (S.D.N.Y., July 15, 2020), is brought for alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938. The lawsuit is also brought for violations of the New York Labor Law, and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. The Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked, according to the complaint. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiffs appropriately for any hours worked, at either at the straight rate of pay or for any additional overtime premium. The Plaintiffs allege that the Defendants failed to pay the Plaintiffs the required "spread of hours" pay for any day in which they had to work over 10 hours a day. The Defendants maintained a policy and practice of requiring the Plaintiffs and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, says the complaint. The Plaintiffs were employed as a salad and smoothie preparer, cook, cashier, food purchaser, and general assistant at the restaurants. The Defendants own, operate, or control a chain of healthy food restaurants, located in Bronx, New York, under the name "Healthy Fresh."[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 HEBRON TECHNOLOGY: Pomerantz LLP Reminds of August 7 Deadline ------------------------------------------------------------- Pomerantz LLP on July 13 disclosed that a class action lawsuit has been filed against Hebron Technology Co., Ltd. ("Hebron" or the "Company")(NASDAQ: HEBT) and certain of its officers. The class action, filed in United States District Court for the Southern District of New York, and indexed under 20-cv-04746, is on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired Hebron securities between April 24, 2020, and June 3, 2020, both dates inclusive (the "Class Period"). Plaintiff pursues claims against the Defendants under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Hebron securities during the class period, you have until August 7, 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 newaction@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. Hebron conducts equipment and engineering service operations focusing on the research, development and manufacture of fluid equipment including valves, pipe fittings and others. Since July 2019, the Company has also provided financial advisory service operations. 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 the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (i) many of Hebron's acquisitions, including Beijing Hengpu and Nami Holding (Cayman) Co., Ltd., involved undisclosed related parties; (ii) the Company's disclosure controls regarding related party transactions was ineffective; and (iii) 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 June 3, 2020, Grizzly Research presented a report alleging that Hebron is an "insider enrichment scheme without economic basis," citing questionable transactions including an undisclosed related party transaction for nearly $26 million. On this news, the Company' s share price fell $8.26, or nearly 37%, to close at $14.29 per share on June 3, 2020, on unusually heavy trading volume. The stock continued to decline the next trading session by $2.51, or nearly 18%, to close at $11.78 per share on June 4, 2020, on unusually heavy trading volume. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm--http://www.pomerantzlaw.com--concentratesits practice 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. [GN] HELIUS MEDICAL: Shareholder Class Action Voluntarily Dismissed -------------------------------------------------------------- Helius Medical Technologies, Inc. (NASDAQ:HSDT) (TSX:HSM) ("Helius" or the "Company"), on July 14 announced the dismissal of a putative shareholder class action in the Southern District of New York. The plaintiffs voluntarily dismissed the 2019 lawsuit with prejudice, ending the case against Helius in In re Helius Medical Technologies Litigation, 19-CV-6365. U.S. District Judge Loretta Preska signed the final order dismissing the litigation on July 1, 2020. "We are gratified that this meritless lawsuit has been dismissed," said Helius CEO and Chairman Philippe Deschamps. "We have maintained from the outset that we never misled anyone, and these claims were baseless. I, along with Joyce LaViscount, Jonathan Sackier and the rest of our leadership team, remain fully committed to our mission and protecting the interests of our investors." About Helius Medical Technologies, Inc. Helius Medical Technologies--http://www.heliusmedical.com--isa neurotech company focused on neurological wellness. The Company's purpose is to develop, license and acquire unique and non-invasive platform technologies that amplify the brain's ability to heal itself. The Company's first product in development is the Portable Neuromodulation Stimulator (PoNSTM). About the PoNS Device and PoNS Treatment The Portable Neuromodulation Stimulator (PoNS) is an authorized class II, non-implantable medical device authorized for sale in Canada. PoNS is intended as a short term treatment (14 weeks) of chronic balance deficit due to mild-to-moderate traumatic brain injury and is to be used in conjunction with physical therapy and indicated as a short term treatment (14 weeks) of gait deficit due to mild and moderate symptoms from MS and is to be used in conjunction with physical therapy. The PoNS is an investigational medical device in the United States, the European Union, and Australia, and is currently under review for clearance by the AUS Therapeutic Goods Administration. PoNS is not commercially available in the United States, the European Union or Australia. [GN] HITACHI AUTOMOTIVE: Class Certification in Held Labor Suit Upheld ----------------------------------------------------------------- In the case, HITACHI AUTOMOTIVE SYSTEMS AMERICAS, INC., Appellant, v. RONALD D. HELD AND CAROL LEAR, INDIVIDUALLY AND ON BEHALF OF CLASS OF PERSONS SIMILARLY SITUATED, Appellees, Case No. 2019-CA-001318-ME (Ky. App.), the Court of Appeals of Kentucky affirmed the Madison Circuit Court's order granting the Appellees' motion for class certification. Two supervisors, Ronald Held and Carol Lear ("Appellees"), employed in the Berea manufacturing facilities owned by Hitachi filed an action against Hitachi alleging they and members of a putative class were entitled to recover unpaid and underpaid overtime wages under the Kentucky Wage and Hour Act ("KWHA") codified in KRS1 Chapter 337. Before filing the underlying action in the Madison Circuit Court, Lear filed an action in the U.S. District Court for the Eastern District of Kentucky alleging the same KWHA overtime claims at issue here and federal overtime claims under the Fair Labor Standards Act ("FLSA"). Senior U.S. Judge Joseph M. Hood conditionally certified a class of supervisors under the FLSA. However, Judge Hood declined to exercise supplemental jurisdiction over Lear's KWHA claims due to the differences in the state and federal laws governing the claims. Judge Hood dismissed Lear's KWHA claims without prejudice, so she could refile the claims in state court. On May 30, 2018, Held and Lear filed a class action on behalf of themselves and all similarly situated supervisors employed in the Berea manufacturing facilities owned by Hitachi. They alleged Hitachi failed to pay supervisors at the same hourly rate for all hours work and failed to pay them at the required overtime rate. Held and Lear asserted Hitachi's compensation policy for the class of supervisors violated the KWHA and sought to recover overtime pay under the Act. The circuit court action was dormant for approximately a year. In the meantime, Lear continued to litigate the federal case and fact discovery proceeded. Discovery was set to expire on April 12, 2019 but shortly before that, Lear moved to stay the case or dismiss the FLSA action without prejudice. Judge Claria Horn Boom inherited the case from Judge Hood and dismissed the FLSA case with prejudice after Lear agreed that would be an acceptable resolution. On July 12, 2019, the Appellees moved to certify the class. In their motion, they proposed a class of all current and former supervisors employed by Hitachi in its Berea, Kentucky, manufacturing facilities at any time since April 24, 2012, excluding all supervisors who have only worked on the south side of the Berea Motors facility since April 24, 2012. The Appellees also requested that the class be divided into two subclasses. The first subclass included all Class Supervisors employed by Hitachi at any time from April 24, 2012 to present. The Appellees asserted that all employees in the class were hourly employees. The second subclass included a smaller subset of all Class Supervisors employed by Hitachi at any time from April 24, 2012 through June 13, 2016. Before June 2016, the supervisors received extra pay at an hourly rate but not overtime premium pay for every hour worked over forty hours per week. After June 2016, Hitachi revised its compensation policy, so they only received extra pay for the first 10 hours worked over 40 hours per week, thus greatly reducing the disparity between actual pay and the guaranteed minimum. Hitachi opposed certification of the class before the circuit court, arguing all the supervisors were paid on a salary basis, so the supervisors were not entitled to overtime pay. Alternatively, Hitachi argued that even if the supervisors were paid on an hourly basis, many members of the proposed class would not be entitled to recover damages under the reasonable relationship test under 803 KAR2 1:070 Section 11(2). Hitachi asserted that the proposed class did not meet the numerosity, commonality, and predominance requirements for certification because many individuals would not ultimately be entitled to damages. The circuit court heard oral arguments on the motion on Aug. 21, 2019. Although the circuit court did not conduct an evidentiary hearing, it noted it reviewed the numerous volumes of record filed prior to the hearing. It further noted the amount of discovery that had been conducted was somewhat unusual for the certification stage but understandable given the delay. The court entered an order certifying the class and two subclasses on Aug. 22, 2019. The circuit court rejected Hitachi's merits-based arguments and found the proposed class met all requirements for certification. The appeal followed. On appeal, Hitachi specifically argues that certification of the "reasonable relationship" subclass of supervisors employed from April 24, 2012 through June 13, 2016, was inappropriate. Hitachi's argument is based on the premise that many individual claims for damages fail under the reasonable relationship test because the ratio of total compensation to their guaranteed compensation does not meet the minimum threshold of 1.5-to-1. As a result, the compensation is within the bounds of what the law deems "reasonable." Additionally, Hitachi argues the circuit court's failure to address its reasonable relationship argument in the order certifying the class shows the court's lack of understanding of Hitachi's position. The Appellate Court agrees with the circuit court's certification and holds that Hitachi's merits-based arguments do not warrant reversal. Hitachi asks the Court to reverse the circuit court's order certifying a subclass of supervisors, arguing several members of the subclass will not be entitled to damages. As noted by the circuit court during the hearing, ruling in Hitachi's favor would require the court to make a merits determination, which is inappropriate at the class certification stage. Additionally, every single member of the challenged subclass is also a member of the unchallenged subclass, so there would be no practical benefit of decertifying the 'reasonable relationship' subclass. Doing so would result in many of the members of that subclass filing individual actions in the Madison Circuit Court in addition to the class action of which they would all remain class members. As the circuit court properly found, managing the litigation as a class action would be much less complicated than managing separate actions of more than 150 individual employees. Therefore, the circuit court did not abuse its discretion in certifying the class and subsequently two subclasses. For the foregoing reasons, the Appellate Court affirmed the Madison Circuit Court's order certifying the class. A full-text copy of the Appellate Court's May 15, 2020 Opinion is available at https://is.gd/rmnKgp from Leagle.com. Craig P. Siegenthaler -- csiegenthaler@fisherphillips.com -- Timothy J. Weatherholt -- tweatherholt@fisherphillips.com -- Louisville, Kentucky, Briefs for Appellant. William R. Garmer, Jerome P. Prather, John E. Norman, Lexington, Kentucky, David W. Garrison, Joshua A. Frank, Nashville, Kentucky, J. Chris Sanders, Louisville, Kentucky, Brief for Appellees. HUNTINGTON BANCSHARES: Prinzo Sues Over Failure to Pay PPP Agents ----------------------------------------------------------------- Prinzo & Associates LLC, individually and on behalf of all others similarly situated v. HUNTINGTON BANCSHARES INC.; HUNTINGTON NATIONAL BANK; and DOES 1 through 100, inclusive, Case No. 2:20-cv-01061-WSS (W.D. Pa., July 15, 2020), is brought to seek compensation from the Defendants, who refuse to comply with the CARES Act that requires it to pay out of the compensation it received for processing PPP loans, for services the Plaintiff and a large number of other agents rendered on behalf of recipients of Small Business Administration emergency loans. As a result of the Defendants' acts and omissions, the Plaintiff avers it and a large number of others like it have been deprived of payment for their critical work in supporting their clients' PPP loan applications. In order to distribute the money swiftly to small businesses, Congress decided to utilize the nation's financial institutions to take applications and distribute the funds that would be fully guaranteed by the federal government. However, in order to avoid delay, Congress decided that the financial institutions would not be required to verify the accuracy of the applications. Instead, the burden to provide accurate information was put directly and solely on the small businesses submitting applications. Huntington operates more than 800 branches, across seven states and has reported approval of approximately 35,283 PPP applications totaling approximately $6.5 billion in borrowed funds. The average PPP loan approved by the Defendants was approximately $183,067. However, the Plaintiff alleges, the Defendants apparently decided that they do not need to complete the final step of the process and have refused to pay the agents, who assisted PPP loan recipients with their applications. This practice seemed to be a deliberate scheme from the beginning as even though they were required to pay agents that assisted in the application process, the Defendants did not set up a structure or ask any questions to determine whether borrowers utilized an agent in completing applications, according to the complaint. It appears that this scheme was to claim ignorance of the existence of the agent as an excuse not to pay the agent its share of the compensation. These agents, including the Plaintiff, have no other recourse for collecting fees for assisting borrowers on PPP loan applications because the PPP regulations delegate the responsibility for paying agents to the lenders alone. And yet, the Defendants have disregarded the regulations and refused to pay agents who assisted small businesses in receiving PPP funds. The Plaintiff insists it has been harmed by the Defendants' practice. Plaintiff Prinzo & Associates is a Certified Public Accounting ("CPA") firm organized in Pennsylvania. Huntington Bancshares Inc. is a bank holding company incorporated in Columbus, Ohio, which provides banking services through branches in seven states.[BN] The Plaintiff is represented by: Kenneth J. Grunfeld, Esq. GOLOMB & HONIK, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Phone: (215) 985-9177 Fax: (215) 985-4169 Email: kgrunfeld@golombhonik.com - and - Elaine S. Kusel, Esq. MCCUNE WRIGHT AREVALO LLP One Gateway Center, Suite 2600 Newark, NJ 07102 Phone: (909) 557-1250 Facsimile: (909) 557 1275 Email: esk@mccunewright.com - and - Richard D. McCune, Esq. Michele M. Vercoski, Esq. Tuan Q. Nguyen, Esq. MCCUNE WRIGHT AREVALO LLP 18565 Jamboree Road, Suite 550 Irvine, CA 92612 Phone: (909) 557-1250 Facsimile: (909) 557-1275 Email: rdm@mccunewright.com mmv@mccunewright.com tqn@mccunewright.com IDEANOMICS INC: RM LAW Reminds of August 27 Deadline ---------------------------------------------------- RM LAW, P.C. on July 13 disclosed that a class action lawsuit has been filed on behalf of all persons or entities that purchased Ideanomics Inc. ("Ideanomics" or the "Company") (NYSE: IDEX) securities during the period from March 20, 2020 through June 25, 2020 inclusive (the "Class Period"). Ideanomics shareholders may, no later than August 27, 2020, move the Court for appointment as a lead plaintiff of the Class. If you purchased shares of Ideanomics and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299. According to the complaint, in May 2020, Ideanomics touted that its Mobile Energy Global ("MEG") center "in Qingdao now hosts a full suite of car dealer services for new energy and used cars with a capacity of 18,000 vehicles onsite." Then, on June 9, 2020, Ideanomics announced that auto dealers operating in MEG have sold 2,139 vehicles for a total of $33 million. However, on June 25, 2020, Hindenburg Research revealed that Ideanomics had manipulated photos to suggest it owns/operates the MEG center and "to drive its stock price up." Hindenburg also had an investigator call some of Ideanomics' purported customers and "'none of them were aware of Ideanomics and none were able to confirm doing business with' Ideanomics". That same day J Capital Research stated "[o]ne thing remains a constant [with Ideanomics] . . . shareholders get wiped out." After attempts by Ideanomics to clarify the findings in these reports, Hindenburg Research stated "[w]e continue to believe that Ideanomics is engaged in flagrant securities fraud and that its stock will end up in pennies." On this news, Ideanomics' share price fell over 53% over two days to close at $1.46 per share on June 26, 2020. If you are a member of the class, you may, no later than August 27, 2020, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed 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. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain RM LAW, P.C. or other counsel of your choice, to serve as your counsel in this action. For more information regarding this, please contact RM LAW, P.C. (Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by email at rm@maniskas.com. For more information about class action cases in general or to learn more about RM LAW, P.C. please visit our website at http://www.rmclasslaw.com RM LAW, P.C. is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. [GN] INTERNATIONAL PAPER: Court Narrows Claims in Ashworth Suit ---------------------------------------------------------- In the case, LARRY W. ASHWORTH, v. INTERNATIONAL PAPER CO., ET AL, Case No. 2:20-CV-00053 (W.D. La.), Judge James D. Cain, Jr. of the U.S. District Court for the Western District of Louisiana, Lake Charles Division, granted in part and denied in part BNSF Railway Co.'s Motion to Dismiss; and (ii) denied BNSF's Motion for a More Definite Statement. The action arises from claims of land contamination by Plaintiff Ashworth, who asserts that his property has been damaged by toxic waste from former creosote plants in Beauregard Parish, Louisiana. Specifically, Mr. Ashworth identifies the International Paper Company ("IP") site (Parcel A) and the American Creosote site (Parcel B). He asserts that creosoting operations ceased on Parcel A in 1989 and on Parcel B in 1963. Mr. Ashworth asserts that he first became aware of the contamination less than one year before filing the suit, when he witnessed dark colored thick liquid coming from the ground" after extracting a tree stump. He brought claims for damages and injunctive relief based on theories of negligence (Count I), strict liability (Count II), and continuing nuisance and trespass (Count III). Ashworth asserts that he is also entitled to punitive damages under former Louisiana Civil Code Article 2315.3 (Count IV). As Defendants, Mr. Ashworth names various corporations as owners/operators of the creosote plants, or successors to same. He also raises the same claims against BNSF, which allegedly owned a right-of-way and track "in and near" the two parcels where creosote-treated poles were stored and/or loaded and transported on BNSF's railways for commercial sale. Mr. Ashworth further asserts that BNSF and IP discovered contamination in the soil and waters underlying the creosote plant sites when they drilled monitoring wells near Parcels A and B. BNSF now moves for dismissal of all claims raised against it, arguing that Mr. Ashworth's factual allegations fail to state a claim on which relief can be granted for each of the counts. BNSF also asserts that Mr. Ashworth should be limited to pre-purchase damages under the subsequent purchaser rule and moves for a more definite statement as to certain allegations. No party has filed an opposition to this motion and the time for doing so has passed. Accordingly, the motions are regarded as unopposed. For Count I, Judge Cain finds that the Plaintiff has alleged that BNSF had some responsibility for transporting and storing poles treated with toxic chemicals, on or near parcels where subsurface contamination was later discovered. Plaintiff has also alleged that BNSF, in particular, drilled monitoring wells and became aware of subsurface contamination at those sites. Several of the allegations appear more suited to the creosote plant defendants, but there is enough articulated with respect to BNSF's possible failure of due care to satisfy plaintiff's initial burden and invite discovery. Accordingly, the motion to dismiss is denied as to the negligence claim. Mr. Ashworth has also raised strict liability claims against BNSF under Louisiana Civil Code articles 667, 2317 and 2317.1, and 2322. To this end, Plaintiff has alleged that BNSF had "custody, control, and garde of damaging chemicals associated with the creosoting process" and is strictly liable for the unreasonably dangerous condition caused by the migration of these chemicals. BNSF maintains that the cause of action fails under all of these provisions. The Judge holds that there is nothing in the complaint to support, much less allege, that the storage and treatment of the creosote-treated poles would be dangerous even with the exercise of reasonable care. Accordingly, the Plaintiff has shown no basis for deeming the activities ultrahazardous. These claims against BNSF must therefore be dismissed. Mr. Ashworth has not described any vice or defect with respect to the creosote-treated poles in BNSF's custody. Accordingly, Ashworth also fails to state a strict liability claim under these articles, the Court opines. Finally, Mr. Ashworth describes no particular building owned by BNSF that contributed to the damages alleged in the case, nor does he allege the ruin of any of BNSF's facilities. Accordingly, Ashworth also fails to state a claim under Article 2322. For Count III, BNSF argues that the claims against it for continuing nuisance and trespass fail because the Plaintiff alleges no ongoing conduct or presence of any neighbor. Mr. Ashworth asserts that his property is approximately 5.1 miles away from Parcel A. He does not describe the property over which BNSF was owner or proprietor. The exhibit attached identifies only Parcels A and B and the Ashworth property. The Judge cannot gauge the scale or locate BNSF-owned or controlled property on the map. Mr. Ashworth, however, has not alleged that BNSF's property is adjacent to his or otherwise any closer. Accordingly, Ashworth fails to establish that he is a neighbor within the meaning of the nuisance statute and the claim fails as well. For Count IV, under the punitive damages claim, Plaintiff has only alleged that BNSF engaged in the damage-causing activities before 1984 and that these activities then caused the creosote to migrate to his property while Article 2315.3 was in effect. Elsewhere, however, he alleged that BNSF's conduct lasted from the inception of the creosoting operations/business to its cessation on or about 1989. At this stage, the Court does not require any more specificity as to dates and the Plaintiff has adequately alleged that some conduct giving rise to punitive damages might have occurred within the time period covered by Article 2315.3. Accordingly, the motion is denied as to that claim. Next, BNSF argues that the Plaintiff's claims must be dismissed to the extent he seeks damages incurred before his purchase of the property. To this end, BNSF attaches a cash warranty deed. From this deed, it appears that Mr. Ashworth purchased the property in 1987 and that the prior landowner did not assign any litigation rights. BNSF's attachment is outside the scope of the motion. Moreover, any question of time limitations on damages is premature at this point and better suited to summary judgment. Accordingly, the motion is denied in that respect. Finally, BNSF argues that it is entitled to a more definite statement under Rule 12(e) on the timing and alleged manner of negligence. As shown, however, Mr. Ashworth has alleged BNSF's involvement in the storage and transportation of a specific item from a specific site within an approximate date range. While the time range is broad, the geographic particularity and type of damage alleged gives BNSF adequate notice to begin investigating the claims against it. Accordingly, the motion is also denied. In light of the foregoing, Judge Cain granted in part and denied in part the Motion to Dismiss. The Judge denied the Motion for a More Definite Statement. A full-text copy of the District Court's May 15, 2020 Memorandum Ruling is available at https://is.gd/Db0eVz from Leagle.com. IRONMAN: Faces Class Action Over No-Refund Policy ------------------------------------------------- Kevin Mackinnon, writing for Triathlon, reports that Ironman's no-refund policy has led to the filing of a class-action law suit against the company. Kelli Blake wasn't going to accept that Ironman couldn't give her a refund for her entry to Ironman 70.3 Musselman after the race was "postponed" to 2021. After hours of phone conversations with the Ironman athlete services department, she finally said to the supervisor she'd been referred to: "This is not acceptable. You're giving me tomatoes -- lots of different versions of tomatoes. Do you want tomato soup? In a salad? I don't want tomatoes. That's not acceptable." When Ironman "postponed" the race, Blake, like the rest of the athletes registered for the event, was sent an email with a list of options. She could defer her entry to next year or could have her entry transferred to a different race scheduled for later this year. All those events were in the United States. "How do you see that working?" she asked one of the Athlete Services representatives, pointing out that the Canada/ US border was closed and any re-opening in the near future remained very uncertain. Despite those conversations, she received an email from Ironman. Pick another race by June 24 or forfeit your entry. Blake is nothing if not persistent. If anyone embodies the Ironman philosophy of "Anything is Possible" it is the 59-year-old from Wasaga Beach, Ont. She had entered the Musselman event because it would be a great way to celebrate her 60th birthday in July. After doing her first triathlon in 2007, she's done 43 events in total, including full-distance Ironman races in Mont-Tremblant and Muskoka. "Ironman tells us they want us to be determined," Blake says. "Find different pathways to get to the finish line. Overcome obstacles -- all these different sayings and mantras they tell us to follow in order to be successful triathletes, because that's how they make money. But, when I use those skills to talk to them and get a refund, they don't like it." Blake would eventually end up on the phone with Keats McGonigal, Ironman's Head of Operations for North America, who would offer her the opportunity to transfer her entry to a race in Canada either next year or the year after. When she kept pressing for a refund, he told her that he would put her in touch with the company's legal department. She has yet to hear back from them. Blake is hardly the only Ironman athlete who is frustrated with the company's policies around "postponed" or "rescheduled" events. Ironman practically never says that an event is "cancelled" -- on the Ironman COVID-19 update page the word appears exactly twice, for Ironman Maceio Alagoas and Ironman Rio de Janeiro. A look at Facebook posts on the event pages for races like Ironman 70.3 Mont-Tremblant or Ironman 70.3 Connecticut provide ample proof that athletes are not happy with the fact that Ironman will not provide refunds for events. That's even though those same athletes are likely aware that when they entered the races the waiver they signed includes the following (or something similar): "If the race course or Event is changed, modified, delayed, or cancelled for any reason, including but not limited to acts of God or the elements (including without limitation, wind, rough water, rain, hail, hurricane, tornado, earthquake), acts of terrorism, fire, threatened or actual strike, labor difficulty, work stoppage, insurrection, war, public disaster, flood, unavoidable casualty, race course conditions, or any other cause beyond the control of WTC, there will be no refund of Organizer's entry fee or any other costs incurred in connection with the Event." Some athletes are ready to take the company to court over its refund policy. In May a suit was filed against Ironman and Competitor Group "for not providing refunds during COVID-19," according to the Top Class Actions website. In this case the plaintiff, Mikaela Ellenwood, had registered for the Rock 'n' Roll Marathon Series half marathon in San Francisco, which was originally postponed, then rescheduled to next year. "Ellenwood says that, because of the coronavirus, the defendants have attempted to reschedule or postpone many of the Ironman races that were scheduled to take place in 2020," the story on the Top Class Action website continues. "However, the defendants have allegedly refused to provide a refund for cancelled events, forcing Class Members to participate in another event rescheduled later in 2020, re-register for a race in a different city for 2021 or defer their participation to 2021." "As a result of the postponement or cancellation, Defendants have not delivered the events for which Plaintiff and members of the class paid," the Ironman Race 2020 class action lawsuit avers." Here at Triathlon Magazine Canada, we've reported on the challenges race directors are facing when it comes to refunds after races have had to be cancelled due to the COVID-19 pandemic. "I would strongly suggest that if an independent race or series of races were to lose a year of race revenue, they would be bankrupt," Multisport Canada's John Salt told us for a story we posted in March. Salt pointed out that many race costs are spent months in advance. For this year, Multisport Canada had already ordered all the race medals for the 2020 season by the time we published the story on March 17. "Ninety per cent of all costs are due two to three months prior to an event; most of the products have been ordered, and services have been contracted," Salt continued. "Postponing, or even cancelling a race, is always a worst-case scenario for everyone involved: athletes, the organization team, volunteers and sponsorship partners." Despite those challenges, the Multisport Series offered athletes a 75 per cent refund for the 2020 races after it was forced to cancel the series. Athletes also had the opportunity to defer their entry to 2021. What were they doing with the other 25 per cent? "Make no mistake: COVID-19 is now the defining challenge of our generation," the company says on its website. "MultiSport Canada is a small business, operating year-round with several full-time employees, 30+ part-time employees, an office and storage facilities for our equipment along with all costs associated with hosting each race. We carefully reviewed all our 2020 expenses and calculated what refund amount we can afford to offer. We want to be here in 2021 to produce the races you love." Ironman would certainly be in the same boat as other races, and presumably at an even bigger scale. To keep the business going, employees have had to take pay cuts, with senior management taking a more significant percentage cut. For North American and Asian events Ironman doesn't offer refunds, but does offer transfers to other races when available. In Europe, South Africa and Oceania athletes can get 50 per cent or 25 per cent refunds based on when they withdraw from the race -- there is a deadline after which no refunds are available. Those policies remain in place, according to a spokesperson for Ironman, but "we are working with athletes, especially those with border and travel restrictions." Ironman has remained firm on these policies, unlike events in the Challenge-Family series that have been cancelled this year. Challenge St. Polten, for example, offered racers the opportunity to defer their entry to the following year or "live the values of the Challenge-Family" and get refunds, less applicable administration fees. When Challenge Roth, the largest full-distance event in the world, announced the cancellation in March, it offered refunds (less an administration fee), but asked athletes to waive part of their refund as a donation to the event. "As you know, this is purely a family business, there is no other investor behind us who can support us or provide us with additional funds," race director Felix Walchshoefer says in a video posted on the Challenge Roth website. "Nevertheless, we have a deep desire and a firm intention to organize our Challenge Roth event with the help of our athletes, friends and supporters -- and it will be a good one – to lead the future. That is why we want to put something to you: for those who can, we ask you to voluntarily waive part of the refund in support of Challenge, the proceeds of which provide an emergency fund to ensure the long-term survival of our brand." Kelli Blake received a 75 per cent refund from the Multisport Triathlon Series for a race she had entered in that series this summer. She can't understand why a small race series in Ontario can provide a refund, while the world's largest endurance events organizer, Ironman, can't. She's not the only Ironman athlete who feels that way. [GN] J2 GLOBAL: Bernstein Liebhard Reminds of September 8 Deadline ------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, on July 13 disclosed that a securities class action has been filed on behalf of investors that purchased or acquired the securities of J2 Global Inc. ("J2 Global" or the "Company") (NASDAQ: JCOM) between October 5, 2015 and June 29, 2020 (the "Class Period"). The lawsuit filed in the United States District Court for the Central District of California alleges violations of the Securities Exchange Act of 1934. If you purchased J2 Global securities, and/or would like to discuss your legal rights and options please visit J2 Global 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: (1) J2 Global engaged in undisclosed related party transactions; (2) J2 Global used misleading accounting to hide requisite impairments and underperformance in acquisitions; (3) several so-called independent members of the Company's board of directors and audit committee were not disinterested; and (4) as a result, defendants' public statements were materially false and/or misleading at all relevant times. On June 30, 2020 before the market opened, Hindenburg Research published a report explaining that J2 Global had, among other issues: (i) failed to disclose questionable transactions with related parties; (ii) utilized misleading accounting to hide underperformance and impending impairments; and (iii) failed to disclose a lack of board independence. On this news, shares of J2 Global fell $6.29 per share, or over 9% to close at $63.21 per share on June 30, 2020, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than September 8, 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 J2 Global securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/j2globalinc-jcom-shareholder-class-action-lawsuit-stock-fraud-282/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. [GN] JAZZ PHARMACEUTICALS: Faces UFCW Suit Over Anticompetitive Scheme ----------------------------------------------------------------- UFCW Local 1500 Welfare Fund, on behalf of itself and all those similarly situated v. JAZZ PHARMACEUTICALS IRELAND LIMITED, JAZZ PHARMACEUTICALS, INC., ROXANE LABORATORIES, INC., HIKMA PHARMACEUTICALS PLC, EUROHEALTH (USA), INC., and WEST WARD PHARMACEUTICALS CORP., Case No. 3:20-cv-04725 (N.D. Cal., July 15, 2020), is brought for claims under the Sherman Act and various state laws to recover damages and injunctive relief for the substantial injuries the Plaintiff and others have sustained arising from the Defendants' anticompetitive conduct. The lawsuit arises from an alleged unlawful scheme between Jazz and Roxane to delay the entry of generic competition for Jazz's blockbuster medication Xyre. Xyrem (sodium oxybate oral solution) is indicated to treat two common symptoms associated with narcolepsy: excessive daytime sleepiness and cataplexy. Xyrem is an "orphan drug," treating fewer than 200,000 Americans per year. However, despite the relatively small patient pool, Xyrem has become a commercial success, generating billions of dollars in sales for Jazz since its acquisition. While Xyrem only cost $2.04 per 1-milliliter dose in 2007, by 2014, it cost $19.40 per 1-milliliter dose. By year-end 2019, Xyrem sales have comprised over three-quarters of Jazz's revenues. In 2010, Roxane filed the first new drug application (ANDA) seeking approval of generic Xyrem. Roxane's ANDA contained certain certifications claiming that the patents purportedly covering Xyrem--known as Paragraph IV certification--were invalid, unenforceable, or not infringed by Roxane's proposed generic Xyrem. As the first generic competitor to file an ANDA for generic Xyrem, Roxane was entitled to 180 days of generic marketing exclusivity--meaning that upon FDA approval of its generic Xyrem ANDA, Roxane would be the only generic version of Xyrem permitted on the market for 180 days (with the exception of an authorized generic ("AG") licensed by Jazz). Upon the expiration of the 180-day exclusivity period, any other approved generic manufacturer could begin marketing its generic Xyrem, leading to increased price competition. However, the Plaintiff alleges, to stymie the ability of Roxane--and other generics--to market less expensive generic versions of Xyrem, Jazz embarked on a pattern of anticompetitive behavior to slow down and ultimately eliminate the competitive threat they posed. According to the complaint, first, to protect its cash cow, Jazz filed serial and abusive patent infringement lawsuits--nine patent infringement lawsuits against Roxane alone, covering over a dozen patents. Second, Jazz abused regulatory processes concerning the development of a single shared system ("SSS") for a Risk Evaluation and Mitigation Strategy ("REMS")--a drug safety program the FDA requires drug manufacturers to develop when a particular drug has a potential for misuse or abuse--covering Xyrem and its generic equivalents. Third, in January 2017, the FDA granted final approval of Roxane's ANDA and therefore was in a position to launch its generic Xyrem during the pendency of the patent litigation. In April 2017, as the patent trial on the Xyrem patents approached—placing Jazz's monopoly at significant risk—Jazz settled its patent infringement claims against Roxane through an unlawful reverse payment to Roxane. Because Jazz's launch of an AG would have cut Roxane's sales during 180-day marketing exclusivity by between 40% and 50% over that 180-day period, Jazz's "no-AG" promise conferred significant monetary value—worth hundreds of millions of dollars--to Roxane. To remedy past and ongoing injury to the Plaintiff and members of the Classes, the Plaintiff brings this action to restrain the Defendants' anticompetitive conduct and restore competition to the sodium oxybate marketplace. The Plaintiff also seeks damages under state law to compensate it and all others similarly situated, who have overpaid, and will continue to overpay, for Xyrem. Plaintiff UFCW Local 1500 Welfare Fund is an employee welfare benefits fund. Jazz Pharmaceuticals Ireland Limited is a pharmaceutical developer and manufacturer.[BN] The Plaintiff is represented by: Christina C. Sharp, Esq. Scott Grzenczyk, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Phone: (415) 981-4800 Facsimile: (415) 981-4846 Email: dsharp@girardsharp.com scottg@girardsharp.com - and - Gregory S. Asciolla, Esq. Karin E. Garvey, Esq. Robin A. van der Meulen, Esq. Domenico Minerva, Esq. Matthew J. Perez, Esq. Veronica Bosco, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Phone: (212) 907-0700 Fax: (212) 818-0477 Email: gasciolla@labaton.com kgarvey@labaton.com rvandermeulen@labaton.com dminerva@labaton.com mperez@labaton.com vbosco@labaton.com - and - Roberta D. Liebenberg, Esq. Paul Costa, Esq. Mary L. Russell, Esq. FINE, KAPLAN AND BLACK, RPC One South Broad Street, 23rd Floor Philadelphia, PA 19107 Phone: (215) 567-6565 Email: rliebenberg@finekaplan.com pcosta@finekaplan.com mrussell@finekaplan.com - and - Michael J. Freed, Esq. Robert J. Wozniak, Esq. Brian Hogan, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Phone: (224) 632-4500 Fax: (224) 632-4521 Email: mfreed@fklmlaw.com rwozniak@fklmlaw.com bhogan@fklmlaw.com JO-ANN STORES: McCoy Suit Moved From Super. Court to N.D. Calif. ---------------------------------------------------------------- The class action lawsuit captioned as BOBBY RAY MCCOY, on behalf of himself and others similarly situated v. JO-ANN STORES, LLC, and DOES 1 through 50, inclusive, Case No. RG20061158 (Filed May 11, 2020), was removed from the Superior Court of the State of California for the County of Alameda to the U.S. District Court for the Northern District of California on July 9, 2020. The Northern District of California Court Clerk assigned Case No. 4:20-cv-04566 to the proceeding. The complaint alleges that the Defendants failed to pay lawful wages owed, failed to provide lawful meal periods and rest periods or compensation in lieu thereof, and failed to timely pay wages under the California Labor Code.[BN] Defendant Jo-ann Stores is represented by: Michael J. Nader, Esq. Rabia Z. Reed, Esq. OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. 500 Capitol Mall, Suite 2500 Sacramento, CA 95814 Telephone: 916 840 3150 Facsimile: 916 840 3159 E-mail: michael.nader@ogletree.com rabia.reed@ogletree.com JOHN DOE CORP: Rodriguez Sues Over Unpaid Minimum and OT Wages -------------------------------------------------------------- Eduardo Rodriguez, individually and on behalf of others similarly situated v. JOHN DOE CORP. (D/B/A AZTEC SOUL), FACUNDO VASQUEZ, and BLANCA PABLO, Case No. 1:20-cv-03141 (E.D.N.Y., July 15, 2020), is brought for alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938. The lawsuit is also brought for violations of the New York Labor Law, and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor. According to the complaint, the Plaintiff worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which he had to work over 10 hours a day. The Defendants employed the policy and practice of disguising the Plaintiff's actual duties in payroll records by designating him as a delivery worker instead of as a non-tipped employee, according to the complaint. This allowed the Defendants to avoid paying the Plaintiff at the minimum wage rate and enabled them to pay him at the tip-credit rate (which they still failed to do). In addition, the Defendants maintained a policy and practice of unlawfully appropriating the Plaintiff's and other tipped employees' tips and made unlawful deductions from the Plaintiff's and other tipped employees' wages. The Plaintiff was employed as a delivery worker at the Defendants' restaurant. The Defendants own, operate, or control a Mexican Restaurant, located in Brooklyn, New York, under the name "Aztec Soul."[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 LEAD INTELLIGENCE: Hill Sues Over Illegal Wiretapping & Recording ----------------------------------------------------------------- AMANDA HILL, Individually and On Behalf of All Others Similarly Situated v. LEAD INTELLIGENCE, INC. D/B/A JORNAYA, Case No. 5:20-cv-01352 (C.D. Cal., July 3, 2020), seeks damages and injunctive relief against the Defendant for its unauthorized and illegal wiretapping and recording of communications with the Plaintiff without any notification or warning, causing the Plaintiff and the Class Members damages. The Plaintiff contends that the Defendant has a policy and practice of wiretapping and recording the electronic communications of consumers, who reside in California, as these consumers input information into fields on web-based forms from within California, in violation of the California Invasion of Privacy Act. The Defendant installs wiretapping and recording software into third-party websites and, unbeknownst to the consumers, who visit these websites, uses the software it has installed to surreptitiously record the confidential communications of the websites' visitors, including California residents, who visit these websites from within California.[BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6806 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Frank S. Hedin, Esq. David W. Hall, 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 dhall@hedinhall.com LINKEDIN: Sued for Reading Apple Users' Clipboard Content --------------------------------------------------------- Aishwarya Nair, writing for Reuters, reports that Microsoft Corp's LinkedIn was sued by a New York-based iPhone user on July 10 for allegedly reading and diverting users' sensitive content from Apple Inc's Universal Clipboard application. According to Apple's website, Universal Clipboard allows users to copy text, images, photos, and videos on one Apple device and then paste the content onto another Apple device. According to the lawsuit filed in San Francisco federal court by Adam Bauer, LinkedIn reads the Clipboard information without notifying the user. LinkedIn did not immediately respond to Reuters request for comment. According to media reports, 53 apps including TikTok and LinkedIn were reported to be reading users' Universal Clipboard content, after Apple's latest privacy feature started alerting users whenever the clipboard was accessed with a banner saying "pasted from Messages." "These "reads" are interpreted by Apple's Universal Clipboard as a "paste" command," Bauer's lawsuit alleged. A LinkedIn executive had said on Twitter that the company released a new version of its app to end this practice. Developers and testers of Apple's operating system iOS 14 found that LinkedIn's application on iPhones and iPads "secretly" read users' clipboard "a lot," according to the complaint. The lawsuit seeks to certify the complaint as class action based on alleged violation of the law or social norms, under California laws. According to the complaint, LinkedIn has not only been spying on its users, it has been spying on their nearby computers and other devices, and it has been circumventing Apple's Universal Clipboard timeout. [GN] LONGFIN CORP: Referral for Inquest Order in Securities Suit Vacated ------------------------------------------------------------------- In the case, IN RE LONGFIN CORP. SECURITIES CLASS ACTION LITIGATION, Case No. 18cv2933 (DLC) (S.D. N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York vacated the May 14, 2020 Amended Order of Referral to the Magistrate Judge for an inquest. A full-text copy of the Court's June 16, 2020 Order is available at https://is.gd/J0zNsb from Leagle.com. MARRIOTT INT'L: Zermeno Sues to Recover Unpaid Wages Under FLSA --------------------------------------------------------------- Benjamin Zermeno, on behalf of the Class and Collective members v. MARRIOTT INTERNATIONAL, INC.; MARRIOTT HOTEL SERVICES, INC. and REMINGTON LODGING & HOSPITALITY, LLC, Case No. 2:20-cv-06302 (C.D. Cal., July 15, 2020), is brought to recover all unpaid wages, compensation, penalties and other damages under the Fair Labor Standards Act. According to the complaint, the Plaintiff has been denied payment for all hours worked, including gratuity payments and overtime, and has been denied rest periods that comply with California law. This case implicates the Defendants' longstanding policies and practices, which fail to properly compensate non-exempt service workers for gratuities paid to them as tip wages, for work performed while "off-the-clock," and for missed rest periods. The Defendants, jointly and/or separately, impose mandatory gratuities on the sale of food and beverages, but fails to distribute the total proceeds of those gratuities to non-managerial service employees as required by California law, including the California Labor Code. The Plaintiff was employed as a lounge attendant and server by the Defendants at their Beverly Hills Marriott location in Los Angeles, California. The Defendants operate hotels throughout the United States and California, including the Beverly Hills Marriott, which is located in Los Angeles, California.[BN] The Plaintiff is represented by: Carolyn Hunt Cottrell, Esq. Ori Edelstein, Esq. Kristabel Sandoval, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Phone: (415) 421-7100 Facsimile: (415) 421-7105 Email: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com ksandoval@schneiderwallace.com MCCREARY VESELKA: Bid to Strike Judgment Offer in Perez Denied -------------------------------------------------------------- In the case, MARIELA PEREZ, v. McCREARY, VESELKA, BRAGG & ALLEN, P.C., et al, Case No. 1:19-cv-0724 RP (W.D. Tex.), Magistrate Judge Andrew W. Austin of the U.S. District Court for the Western District of Texas, Austin Division, denied (i) the Plaintiff's Motion to Strike Defendants' Offer of Judgment and Memorandum in Support, and (ii) the Defendants' Motion for Leave to Interplead Funds into Court's Registry. The case is a purported class action lawsuit filed pursuant to the Fair Debt Collections Practices Act (FDCPA). Subsequent to suit being filed, the Defendants served on the Plaintiff an Offer of Judgment, as permitted by Rule 68. The Plaintiff did not accept the offer, and instead filed a motion asking the Court to "strike" the offer, arguing that the Defendants were attempting to use their Rule 68 Offer to moot Ms. Perez's claims as well as the claims of the putative class, and contending that the offer failed because it does not provide complete relief for the putative class. The Defendants oppose the motion, arguing that there is nothing to strike, as offers of judgment do not get filed with the Court, and thus are not pleadings. They further note that the Plaintiff's briefing regarding the interplay between offers of judgment and class actions is irrelevant given that by Rule 68's plain terms, an offer of judgment that has not been accepted terminates of its own accord. Magistrate Judge Autin holds that they are correct on both counts. As the Defendant's note, the Court addressed the very issue five years ago, when a different party made a motion to strike an offer of judgment. For the same reasons, the motion in the case is without merit. As for the long discussion in the Plaintiff's memorandum regarding whether a defendant may attempt to "pick off" a putative class plaintiff with an offer of judgment, that discussion is of no relevance. Unsurprisingly, it was seen as an invitation by class action defendants to present that question in a non-hypothetical scenario. Thankfully, most of the courts to consider that fact scenario -- when it was invariably presented post-Campbell-Ewald -- have held that the deposit of funds is not enough to moot a claim. The Fifth Circuit has not addressed the issue, and the Magistrate Judge is not persuaded that the deposit of funds makes any difference to the analysis. It also means that he will deny the Defendants' request to deposit funds into the Court's registry. Since the offer of judgment was not accepted, and is a nullity, the deposit of funds is unnecessary. For the reasons stated, Magistrate Judge Austin denied the Plaintiff's Motion to Strike Defendant's Offer of Judgment, and the Defendants' Motion for Leave to Interplead Funds into Court's Registry. A full-text copy of the District Court's May 15, 2020 Order is available at https://is.gd/G5wdSD from Leagle.com. MORRIS & MANNING: Faces Turk Suit Over Fraudulent SCE Strategy -------------------------------------------------------------- WILLIAM N. TURK, CARLITA B. TURK, and NORMAN RADOW, on behalf of themselves and all others similarly situated v. MORRIS, MANNING & MARTIN, LLP, et al., Case No. 1:20-cv-02815-AT (N.D. Ga., July 3, 2020), seeks compensatory and punitive/enhanced damages against the Defendants for damages arising from the Syndicated Conservation Easement Strategy the Defendants and other participants jointly and in concert developed, promoted, sold, and implemented. The SCE Strategy is a fraudulent scheme to sell a flawed and defective tax-savings strategy, according to the complaint. The SCE Strategy involves the use of an entity taxed as a partnership under subchapter K of the Code. To achieve this end, the Defendants formed the Syndicates as limited liability companies ("LLCs") under state law, which are taxed as a partnership for federal tax purposes. The Defendants' use of an entity taxed as a partnership allowed the Defendants to market and sell the SCE Strategy, and the promised tax deductions, to clients who would otherwise be unable to participate. The Plaintiff contends that the Defendants' SCE Strategy--developed by the Morris Manning Defendants--was fatally flawed from the outset. Rather than guide the Plaintiffs through a legitimate conservation easement transaction, the Defendants utilized a prepackaged collection of misrepresentations, omissions, deficient form documents, faulty conservation easement deeds, and bogus appraisals to promote, sell and implement the SCE Strategy, which the Internal Revenue Service has determined, as structured and implemented, does not comply with the requirements of Section 170(h) of the Code and other applicable laws and, therefore, does not and cannot provide the promised legitimate charitable contribution deduction from the conservation easement donation. The Plaintiffs assert claims against the Defendants for breach of fiduciary duty, negligence, negligent misrepresentation, disgorgement, fraud, violations of the Racketeer Influenced and Corrupt Organizations Act, violations of the Georgia RICO statute, aiding and abetting, and civil conspiracy. The Defendants include TIMOTHY POLLOCK; LARGE & GILBERT, INC.; CONSERVATION PAYS, LLC; JOSEPH C. SKALSKI; ATLANTIC COAST CONSERVANCY , INC.; ATLANTIC COAST CONSERVANCY PROPERTIES, LLC; ENVIRONMENTAL RESEARCH AND MAPPING FACILITY, LLC; THE GEORGIA TUITION ASSISTANCE PROGRAM, INC.; ROBERT D. KELLER; BENNETT THRASHER, LLC; ORNSTEIN-SCHULER INVESTMENTS LLC; ORNSTEIN-SCHULER CAPITAL PARTNERS LLC; CONSERVATION SAVES, LLC; CONSERVATION MATTERS, LLC; WEIBEL & ASSOCIATES, INC.; CLAY WEIBEL; LUCUS MASON, INC.; LUCUS VON ESH; RUSSELL BENNETT; CARLTON WALSTAD; GREENCONE INVESTMENTS, LLC; BLETHEN MINE CONSULTANTS, LLC; MARVIN BLETHEN; GALT MINING INVESTMENTS, LLC; THE NATIONAL WILD TURKEY FEDERATION RESEARCH FOUNDATION, INC.; AMERICAN UPLAND TRUST, LLC; DONALD R. SKLAR; PARTNERSHIP TAX SOLUTIONS, INC.; AARON KOWAN; and THE PRIVATE CLIENT LAW GROUP. The Plaintiffs are residents of Habersham County and Fulton County, Georgia. Morris Manning provides legal services.[BN] The Plaintiffs are represented by: David R. Deary, Esq. W. Ralph Canada, Jr., Esq. Jeven R. Sloan, Esq. LOEWINSOHN FLEGLE DEARY SIMON LLP 12377 Merit Drive, Suite 900 Dallas, TX 75251 Telephone: (214) 572-1700 Facsimile: (214) 572-1717 E-mail: davidd@lfdslaw.com ralphc@lfdslaw.com jevens@lfdslaw.com - and - Edward J. Rappaport, Esq. THE SAYLOR LAW FIRM LLP 1201 W. Peachtree Street, Suite 3220 Atlanta, GA 30309 Telephone: (404) 892-4400 E-mail: erappaport@saylorlaw.com NB GENERAL: Denied Construction Workers Overtime Pay ---------------------------------------------------- Stalin Medina Baca, Leoncio Torres, and Angel Fernando Gonzalez, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. NB General Construction Corp. and Byron Abzun, Defendants, Case No. 20-cv-04701 (E.D. N.Y., June 4, 2020), seeks compensation for wages paid at less than the statutory minimum wage, unpaid wages from defendants for overtime work for which they did not receive overtime premium pay as required by law and liquidated damages pursuant to the Fair Labor Standards Act and New York Labor Law, "spread of hours" requirements of New York Labor Law and statutory damages for violation of the Wage Theft Prevention Act. Defendants owned and operated a construction company with numerous construction projects in Westchester County and in New Jersey where Plaintiffs worked as construction workers. They regularly worked seven days per week typically working roughly twelve-hour days, all without overtime pay. Defendants did not provide a time clock, computer punch, timesheets, or any other method for workers to track their time worked. Defendants also failed to provide written wage notices providing contact information, regular and overtime rates and intended allowances claimed, the complaint says. [BN] Plaintiffs are represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Tel: (212) 563-9884 Email: dstein@samuelandstein.com NEW HANOVER, NC: Band Director Sexual Assault Class Suit Pending ---------------------------------------------------------------- Joey Chandler, writing for Star News Online, reports that the school district of New Hanover County has been taken to court by alleged victims of sexual abuse of two teachers, as well as by a community member who was videotaped during a school board meeting by former attorney Wayne Bullard. Since the resignation of in-house attorney Wayne Bullard in March, the New Hanover County Board of Education has had to adjust its legal strategy. There are currently three lawsuits filed against the board, and the Raleigh law firm of Tharrington Smith has been hired as interim legal counsel. Education law attorney Deborah Stagner is the firm's primary advisor for the district. According to school district spokeswoman Ann Gibson, Tharrington Smith represents local boards of education across the state, and interim Superintendent Del Burns has worked with the firm's attorneys while in other school districts during his career. Its website -- tharringtonsmith.com -- says it's been in education law for more than 30 years. A copy of the board's retainer agreement with Tharrington Smith shows it is billed $235 an hour for partners, $200 an hour for associates and $100 for paralegals. The board is billed at the beginning of each month, and bills will include a statement of charges for services for the preceding one-month period. The contract also states that Tharrington Smith conducts sex offender registry checks on owners, employees, agents or subcontractors who will enter New Hanover County Schools property or attend any official, school-sponsored event while providing services. Gibson said that, from the period of March 1 through June 30, Tharrington Smith has billed the board $42,649.86 in legal expenses. A document provided by the district shows a proposed budget of $300,000 in legal services for the 2020-21 school year. In the 2018-19 school year, a total of $304,248.16 was budgeted in legal services, but only $215,505.20 spent. The budget dropped to $283,059.14 in the 2019-20 school year; Gibson attributed the decrease to Bullard's resignation and lack of salary for the final 3.5 months of the year. The district spent $244,697.71. Currently, there are three lawsuits filed against the board: --- John Does v. NHBOE et. al, a complaint against the board; former Isaac Bear and Laney teacher Michael Kelly, who pleaded guilty to 59 charges related to child sexual abuse on June 25; along with former deputy superintendent Rick Holliday and former Superintendent Tim Markley, among others. --- Jane Does v. NHBOE et al, a complaint against the board and former Roland-Grise Middle School band director, Peter Frank, who was arrested on Jan. 24, and sexually assaulted and exploited two named plaintiffs while they were students. It also seeks class action certification on behalf of all of Frank's victims, many of whom were aged 12 to 14 years old at the time and span two decades. --- Dante Murphy v. Bullard and NHBOE, is a complaint filed against the board and Wayne Bullard, the former board attorney, under claims they abridged Murphy's freedom of speech. Bullard resigned through email after a school board meeting on March 3, at which multiple audience members asked for his removal as a full-time employee of the district. During that meeting, Bullard recorded some of those speakers on his phone. His actions were later brought up by concerned community members to the school board. In addition, a case involving the New Hanover Board of Education was settled by the state Supreme Court earlier this year. NHBOE vs. Stein was initiated by the Civitas Institute's former president, Francis DeLuca. The board joined the suit in 2017, but did not incur any legal fees or costs. De Luca filed the lawsuit against N.C. Attorney General Roy Cooper, now the state's governor, alleging that settlement money given to the state by Smithfield Foods Inc. was improperly funneled to environmental groups. In a 6-1 ruling, the N.C. Supreme Court sided with the attorney general. [GN] NEW YORK: Faces Srabyan Suit Over Reopening of Schools in Sept. --------------------------------------------------------------- NVARD SRABYAN, A.V., a minor, by his parent and guardian ad litem, NVARD SRABYAN and M.V., a minor, by her parent and guardian ad litem, NVARD SRABYAN, individually and on behalf of all others similarly situated v. THE STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, ANDREW CUOMO, in his personal capacity and official capacity as Governor of the State of New York, SHANNON TAHOE in her personal capacity and official capacity as Interim Commissioner of Education for the State of New York, BILL De BLASIO in his personal capacity and official capacity as Mayor of New York City, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, and RICHARD A. CARRANZA, in his personal capacity and official capacity as Chancellor of the New York City Department of Education, Case No. 1:20-cv-03137 (E.D.N.Y., July 14, 2020), arises out of recent decisions made by elected officials and government leadership in the City and State of New York in response to the COVID-19 pandemic on the issue of public education and plans for the reopening of schools in September of 2020. This action is brought by the Representative Plaintiffs and the Class under the Constitution of the United States of America as applied to the States via the Fourteenth Amendment, and 42 U.S.C. Section 1983, for civil rights violations suffered by the Plaintiffs and the Class as a result of the actions of the Defendants. This matter arises out of Governor Cuomo's issuance of Executive Orders 202.4 as amended by 202.11 in response to the COVID-19 Pandemic, as extended by Executive Orders 202.14 and 202.18 et seq. (collectively, the Executive Orders"), which each bestowed unbridled authority upon Governor Cuomo to: close schools statewide; re-evaluate closures; and mandate plans for alternative instructional options, distribution and availability of meals and child care. The New York City Department of Education has advised that there are several reopening scenarios officials are looking at for reopening of state schools, including split schedules and return to the classroom in waves, "blended learning," meaning some time spent in school buildings, combined with remote learning, "rolling" or "phased" starts, and the like. As a result of the Executive Orders, the Plaintiffs and the Class have been deprived of their rights to, inter alia, equal treatment regardless of their race, ethnic background, religion, or sex, financial background, citizenship status, and have been deprived of right to educational services to students without disabilities but in need of extra assistance, educational services to students with disabilities, and fair and equal administration of: a) student treatment; b) student services; c) counseling and guidance; d) discipline; e) classroom assignment; f) grading; g) vocational education; h) recreation; i) physical education; and j) athletics. The Plaintiffs contend that the Defendants have failed to issue any Executive Orders or pass any legislation offering relief to students, including Plaintiff and the Class, which will address the numerous deficiencies and defects in the proposed reopening scenarios officials are looking at for reopening of state schools, including split schedules and return to the classroom in waves, "blended learning," meaning some time spent in school buildings, combined with remote learning, "rolling" or "phased" starts, and the like. The Plaintiffs allege that the State Defendants have failed to carry out their responsibilities under the United States Constitution to provide all students a meaningful opportunity to obtain an education adequate to prepare them to be capable citizens. Representative Plaintiff Nvard Srabyan is an individual residing in and domiciled within the City and State of New York and is the mother of Plaintiffs A.V. and M.V. The Plaintiff A.V. is a student at P.S. 253, located at 601 Ocean View Avenue, in Brooklyn, New York. He will begin 6th grade in September 2020. He resides in and is domiciled within the City and State of New York. A.V. is an English Language Learner and receives English Language Learner services from P.S. 253. Plaintiff M.V. is a student at Rachel Carson High School for Coastal Studies, located at 521 West Ave., in Brooklyn, New York. She will begin 12th grade in September 2020. She resides in and is domiciled within the City and State of New York. M.V. is an English Language Learner and receives English Language Learner services from the High School. New York is a state in the northeastern U.S., known for New York City and towering Niagara Falls. The New York State Education Department is the department of the New York state government responsible for the supervision for all public schools in New York and all standardized testing, as well as the production and administration of state tests and Regents Examinations. Shannon Tahoe is the current Interim Commissioner of Education for NYSDOE. Andrew Mark Cuomo is an American politician, author, and lawyer serving since 2011 as the 56th governor of New York. A member of the Democratic Party, he was elected to the same position his father, Mario Cuomo, held for three terms.[BN] The Plaintiffs are represented by: Marcus A. Nussbaum, Esq. FISHKIN, GURSHUMOV & NUSSBAUM, P.C. 3059 Brighton 7th Street, 1st Fl. Brooklyn, NY 11235 Telephone: 718-509-0609 Facsimile: 888-432-1822 E-mail: office@FGNLawFirm.com OH MY GREEN: Bid to Dismiss Count Six in Kastler Labor Suit Denied ------------------------------------------------------------------ In the case, ANNE KASTLER, Plaintiff, v. OH MY GREEN, INC., Defendant, Case No. 19-cv-02411-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California denied both (i) the Plaintiff's motion to remand the case to California state court, and (ii) the Defendant's motion to dismiss Count 6 of the Plaintiff's First Amendment Complaint. Kastler filed a wage and hour putative class action complaint in the San Mateo County Superior Court on Feb. 28, 2019. The Plaintiff listed "OH MY GREEN, INC." and "DOES 1 through 100" as the Defendants. The Plaintiff was employed by Defendant Oh My Green as an hourly, non-exempt employee in California from approximately November 2016 to February 2017. The putative class was comprised of all current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of this Complaint to final judgment. The Plaintiff asserts that the Defendants engaged in pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This pattern and practice involved, inter alia, failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks. The Plaintiff additionally alleges that the Defendants violated sections of the California Labor Code by failing to pay overtime wages, provide uninterrupted meal and rest periods, pay the minimum wage, pay wages owed at discharge or resignation, provide complete or accurate wage statements, keep complete or accurate payroll records, and reimburse all necessary business-related expenses, among other violations. The Plaintiff asserts eight causes of action for violations of (1) California Labor Code sections 510 and 1198 (unpaid overtime); (2) California Labor Code sections 226.7 and 512(a) (unpaid meal period premiums); (3) California Labor Code section 226.7 (unpaid rest period premiums); (4) California Labor Code sections 1194, 1197, and 1197.1 (unpaid minimum wages); (5) California Labor Code sections 201 and 202 (final wages not timely paid); (6) California Labor Code section 226(a) (non-compliant wage statements); (7) California Labor Code sections 2800 and 2802 (unreimbursed business expenses); and (8) California Business and Professional Code section 17200 (Unfair Competition Law). Defendant Oh My Green, Inc. removed the case to federal court on May 2, 2019, claiming that the Court has jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). It filed a motion to dismiss, on May 9, 2019, which the Court dismissed as moot after the Plaintiff filed a First Amended Complaint ("FAC") on May 23, 2019. On May 22, 2019, the Plaintiff filed a motion to remand, for which bringing is complete. On June 3, 2019, the Defendant filed a motion for dismiss the Plaintiff's FAC. The Defendant argues that Count Six of the FAC, alleging that the Defendants failed to provide complete and accurate wage statements, should be dismissed for failure to plead sufficient facts to support a cognizable claim. The Court held a hearing on the motion to remand on Oct. 10, 2019. Judge Gilliam denied the Plaintiff's motion to remand, finding that the Defendant has met its burden to show removal was proper under CAFA. Although he reduced some of the Defendant's amount in controversy estimates above, the Judge finds that the Defendant has proven by a preponderance of the evidence that the amount in controversy meets CAFA's jurisdictional threshold. The Defendant's calculation brings the total amount in controversy to $5,457,353. While the Defendant points to other factors in arguing that its estimates are conservative, the Judge need not weigh these factors since the amount in controversy using the assumptions described already exceeds $5 million. The Judge also denied the Defendant's motion to dismiss the Plaintiff's sixth cause of action, finding that the Plaintiff has sufficiently alleged facts to support a cognizable claim. He finds that the FAC sufficiently states a claim under Section 226(a) (failure to provide the total hours worked by the employee on wage statements due to the automatic deduction policy) and sufficiently alleges injury. A full-text copy of the Court's Order is available at https://is.gd/ZCvgb3 from Leagle.com. Class Certification Deadline Furthermore, Judge Gilliam approved a stipulation by the parties by which the deadline for Plaintiff to file her Motion for Class Certification is continued to Aug. 31, 2020. Defendant shall file its opposition by September 28, 2020. Plaintiff shall file her reply by October 12, 2020. The hearing on Plaintiff's Motion for Class Certification is continued to November 5, 2020 at 2:00 p.m. Anne Kastler, Individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Edwin Aiwazian -- edwin@lfjpc.com -- Lawyers for Justice, PC, Arby Aiwazian -- arby@lfjpc.com -- Lawyers for Justice, PC, Jill Jessica Parker -- jill@lfjpc.com -- Lawyers for Justice, PC & Marie Cristine Santos Capitulo -- ccapitulo@wshblaw.com -- Lawyers for Justice, PC. Oh My Green, Inc., an unknown business entity, Defendant, represented by Javier Torres -- javier.torres@stinson.com -- Stinson Leonard Street LLP. OKLAHOMA: Federman & Sherwood Files Muscogee Creek Class Action --------------------------------------------------------------- On July 13, 2020, Federman & Sherwood, Kevin A. Adams and John M. Dunn, filed a Class Action lawsuit in Okmulgee County District Court. Named as defendants are the State of Oklahoma, multiple Counites through their respective District Attorneys and several municipalities. The Class Action seeks the return of money paid through the unlawful prosecution of Native Americans without jurisdiction within the Muscogee Creek Nation. If you would like to be a part of this lawsuit please visit the following website https://www.indiancountrylawsuit.com/. If you want to discuss this lawsuit, obtain further information or participate in potential litigation, or have any questions or concerns regarding this notice, please contact Tiffany Peintner at trp@federmanlaw.com or visit our firm's website at www.federmanlaw.com. [GN] OLD NAVY: Fails to Obtain Dismissal of Nemykina Class Suit ---------------------------------------------------------- In the case, ANNA NEMYKINA, for Herself, as a Private Attorney General, and/or On Behalf Of All Others Similarly Situated, Plaintiff, v. OLD NAVY, LLC; OLD NAVY (APPAREL), LLC; OLD NAVY HOLDINGS, LLC; GPS SERVICES, INC.; THE GAP, INC.; and DOES 1-20, inclusive, Defendant, Case No. 2:19-cv-01958 BJR (W.D. Wash.), Judge Barbara Jacob Rothstein of the U.S. District Court for the Western District of Washington, Seattle, denied the Defendants' Motion to Dismiss all claims. Nemykina commenced the putative class action lawsuit against Defendants Old Navy, LLC, Old Navy (Apparel), LLC, Old Navy Holdings, LLC, GPS Services, Inc., and The Gap, Inc., asserting several causes of action under California and Washington law. Plaintiff has claimed that Defendants engage in a deceptive practice of advertising items at a claimed "discount" or sale price, when in reality many of those items are "rarely if ever" offered at a higher original price, and that she purchased a number of items in reliance on these representations. Nemykina alleges that on Dec. 1, 2016, she visited the Old Navy website to shop for Christmas presents. She claims that nearly all of the products she viewed on the website were advertised as being discounted from a reference price. Based on these representations, she claims she reasonably believed that the clothing items were normally offered and sold by Old Navy at the higher advertised list prices and that the products were worth, and had a value of, the higher stated reference prices. Believing she was receiving a "special bargain, she purchased 21 items. According to subsequent investigation of her counsel, however, and unbeknownst to the Plaintiff at the time of her purchases, the Defendants "rarely or never" offer their products for sale at the higher reference price. The "false discounting scheme" harmed the Plaintiff, she claims, by inducing her to pay more than she otherwise would have paid and to buy more than she otherwise would have bought. The Plaintiff's claims are brought on behalf of herself and all residents of the State of Washington who, within the applicable limitations period, purchased from the Old Navy website one or more products which was advertised or promoted by displaying or disseminating a reference price or discount. She seeks damages, restitution, attorneys' fees, and a permanent injunction, enjoining Defendants from "advertising false reference prices and/or false discounts. The Defendants moved to dismiss all claims. In her Response, the Plaintiff concedes California law does not apply and consents to dismissal of all California claims, leaving only her two Washington claims, brought under the Washington Consumer Protection Act ("CPA"). In their Motion, the Defendants argue that the Plaintiff's CPA claims should be dismissed because the heightened standard for pleading fraud with particularity applies, and the Plaintiff's allegations lack the requisite specificity. The Defendants also argue that Plaintiff's request for restitutionary and injunctive relief under the CPA should be dismissed, arguing these equitable remedies are not available under the facts alleged. The Defendants seek dismissal of Counts I and II of the Complaint brought under the CPA, arguing they fail to meet the heightened pleading standard of Fed. R. Civ. P. 9(b). That rule provides that a party must state with particularity the circumstances constituting fraud. Thus, the first question raised by the motion is whether the standard -- or the more lenient standard under Rule 8(a)(2) requiring only a "short and plain statement of the claim" -- applies to the Plaintiff's CPA claims. Judge Rothstein finds that the Plaintiff repeatedly invokes claims of fraud, and states that the Defendants' pricing was an "overarching fraudulent scheme" that the Defendants employed as part of a "marketing plan." The Plaintiff's claims rely entirely on these allegations of a "unified course of fraudulent conduct," and therefore are subject to Rule 9(b)'s heightened particularity requirement. Moreover, the Plaintiff is not merely claiming that the Defendants engaged in an act that had a capacity to deceive (which presumably would not require pleading with heightened specificity); she repeatedly accuses the Defendants of having the knowledge and intent to deceive their customers, inducing those customers into buying and paying more for their goods than they otherwise would have. Rule 9(b) therefore applies to the Plaintiff's CPA claims sounding in fraud. Having determined that the Plaintiff must plead her fraud-based CPA claims with heightened specificity, the Judge next evaluates whether the Plaintiff has done so. The Judge finds that the Plaintiff has sufficiently pled the "who, what, when, where, and how" required under Rule 9(b), giving the Defendants "adequate notice to allow them to defend the charge." The Plaintiff has provided sufficient detail regarding the alleged unfair or deceptive practices to enable the Defendants to investigate her allegations and, to the extent appropriate, deny them. Also, inducing a plaintiff into spending money she otherwise would not have spent, based on a misrepresentation, is clearly a cognizable injury, which even under Rule 9(b) Plaintiff has sufficiently pled to survive a motion to dismiss. Finally, the equitable relief under the CPA itself provides that legal and injunctive remedies may be available simultaneously. For the foregoing reasons, the Court concludes that the Plaintiff has included in her Complaint allegations sufficient to withstand the Defendants' Motion to Dismiss. Accordingly, Judge Rothstein denied the Defendants' request to dismiss the Plaintiff's request for injunctive relief. A full-text copy of the District Court's May 15, 2020 Opinion is available at https://is.gd/2PnAr7 from Leagle.com. PENNSYLVANIA STATE: Burgos Suit Moved From N.Y. to Pennsylvania --------------------------------------------------------------- The class action lawsuit captioned as LOURDES BURGOS, on behalf of herself and all others similarly situated v. THE PENNSYLVANIA STATE UNIVERSITY, Case No. 1:20-cv-03143 (Filed April 20, 2020), was transferred from the U.S. District Court for the Southern District of New York to the U.S. District Court for District of Middle District of Pennsylvania on July 14, 2020. The Middle District of Pennsylvania Court Clerk assigned Case No. 4:20-cv-01205 to the proceeding. The case is assigned to the Hon. Judge Naomi Reice Buchwald. The case is a class action lawsuit on behalf of all people, who paid tuition and fees for the Spring 2020 academic semester at Penn State, and who, because of the Defendant's response to COVID-19 pandemic, lost the benefit of the education for which they paid, and/or the services or which their fees were paid, without having their tuition and fees refunded to them. On March 11, 2020, Penn State, through a news release, announced that because of the global COVID-19 pandemic, all in-person classes would be suspended through April 3, 2020. The announcement informed students that beginning March 16, 2020, classes would instead be held remotely through online formats. As a result of the closure of the Defendant's facilities, Defendant has not delivered the educational services, facilities, access and/or opportunities that Ms. Burgos and the putative class contracted and paid for. The online learning options being offered to Penn State students are subpar in practically every aspect, from the lack of facilities, materials, and access to faculty. The Plaintiff and the putative class are, therefore, entitled to a refund of tuition and fees for in-person educational services, facilities, access and/or opportunities that Defendant has not provided. Even if the Defendant claims it did not have a choice in canceling in-person classes, it nevertheless has improperly retained funds for services it is not providing, says the complaint. Plaintiff Lourdes Burgos is a citizen of New York, who resides in Bronx County, New York. Ms. Burgos is the parent of Penn State undergraduate student Jeffrey Binet, and paid her son's tuition for the Spring 2020 semester. Penn State is one of the country's largest public universities, with an enrollment of over 98,000 students. The University offers 160 degree options for undergraduate students as well as more than 190 graduate programs. Penn State also operates an online program called Penn State World Campus which offers more than 150 online undergraduate and graduate degree programs. Over 14,000 students are currently enrolled in Penn State's World Campus.[BN] The Plaintiff is represented by: Joseph I. Marchese, Esq. Sarah N. Westcot, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jmarchese@bursor.com swestcot@bursor.com PROASSURANCE CORP: Levi & Korsinsky Reminds of Aug. 17 Deadline --------------------------------------------------------------- Levi & Korsinsky, LLP disclosed that a class action lawsuit has commenced on behalf of shareholders of publicly-traded company, ProAssurance Corporation. Shareholders interested in serving as lead plaintiff have until the deadline listed to petition the court. Further details about the case can be found at the link provided. There is no cost or obligation to you. [GN] PRA Shareholders Click Here: https://www.zlk.com/pslra-1/proassurance-corporation-loss-form?prid=7877&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=7877&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 deadline 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. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Tel: (212) 363-7500 Fax: (212) 363-7171 E-mail: jlevi@levikorsinsky.com R S EXPEDITING: Vogler Sues Over Violations of FLSA and OPPA ------------------------------------------------------------ Richard Vogler, on behalf of himself and other similarly situated persons v. R S EXPEDITING LLC, RICHARD A. SMITH, and WATCO COMPANIES LLC, Case No. 1:20-cv-01560-CAB (N.D. Ohio, July 15, 2020), is brought to challenge the Defendants' policies and practices that violate the Fair Labor Standards Act of 1938, Ohio Revised Code, Ohio Overtime Law and Ohio Prompt Pay Act. The Plaintiff says he regularly worked more than 40 hours per workweek, entitling him to overtime compensation under the FLSA and the Ohio Overtime Law. Having misclassified the Plaintiff, the Defendants did not pay him one and one-half times his regular rates for hours worked in excess of 40 in a workweek, according to the complaint. The Defendants willfully violated the FLSA and the Ohio Wage Laws by misclassifying the FLSA Collective Members as independent contractors and by not paying the Plaintiff overtime compensation at a rate of one and one-half times his regular rates for hours worked in excess of 40 in a workweek. The Plaintiff was jointly employed by Defendants R S Expedite and Smith from October 2017 to June 19, 2020. Defendant R S Expedite and Defendant Smith contract or contracted with Defendant Watco to provide local delivery services.[BN] The Plaintiff is represented by: Robi J. Baishnab, Esq. NILGES DRAHER LLC 34 N. High St., Ste. 502 Columbus, OH 43215 Phone: (614) 824-5770 Facsimile: (330) 754-1430 Email: rbaishnab@ohlaborlaw.com - and - Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Phone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com ROYAL CANADIAN: Faces Class Action Over Alleged Systemic Racism --------------------------------------------------------------- The Canadian Press reports that one of the first Indigenous women to join the Royal Canadian Mounted Police in Manitoba is the lead plaintiff in a proposed class-action lawsuit that alleges systemic racism within the force. A statement of claim filed in Federal Court alleges that Margorie Hudson and other employees were subjected to racism by colleagues and management. It says Hudson joined the force in 1979 as a so-called special native constable and then as a regular constable but left in 2009 when she could no longer endure the discrimination, disregard for her complaints and the stress and other consequences for her physical and mental health. The RCMP classified Hudson's departure as a retirement and denied her an exit interview, the lawsuit says. The allegations have not been proven in court and a spokeswoman for the RCMP said it would be inappropriate to comment as the matter is before the court. Catherine Fortin said in an email statement on July 13 there is no room for racism or any other kind of discrimination in the RCMP and the police force is committed to ensuring that its policies and practices are fully inclusive. The statement of claim filed against the federal government alleges the RCMP breached Hudson's right to serve Canada in an environment free of discrimination. It says the RCMP and its management allowed a workplace environment that normalized racism. Hudson often saw racialized members being treated differently and she received unequal pay and training and lost opportunities to work on high-profile cases compared with non-racialized colleagues, the lawsuit says. The lawsuit says Hudson had a high success rate in solving difficult cases, but when she asked to be considered for promotion "the plaintiff was told that she should be happy the RCMP had recruited her in the first place." It also alleges Hudson was sent to do "countless dangerous jobs by herself with no back up, in situations where non-racialized RCMP members were not sent alone." Hudson raised her concerns with superiors many times, it says. "On one occasion, the plaintiff was strongly encouraged to drop a complaint or otherwise face a transfer. She was, in fact, transferred for speaking out," it says. Public scrutiny and recent admissions by RCMP Commissioner Brenda Lucki that systemic racism exists within the force made it safer for Hudson to take action now, the statement says. "It's very similar to what happened with the Me Too movement," said lawyer David Klein, who represents Hudson. "As people see that they're not alone, they feel less isolated, and there's a safer environment in which to bring forward their experiences," he said in an interview on July 13. Klein Lawyers has also represented women in a class-action lawsuit over harassment based on gender and sexual orientation within the RCMP, which was certified in January 2017. The firm has since been contacted by dozens of current and former members of the RCMP who shared experiences of racism and religious discrimination within the police force, said Klein. If certified by the court, the lawsuit seeks to award members of the class with financial damages, noting Hudson and others sustained injuries and consequences including post-traumatic stress disorder, diminished self-worth, anxiety and depression. But Klein said it's about more than money. "They want initiatives put in place to ensure that minority groups who are represented in the force currently and who join the force in the future don't have to endure what they endured." Klein said he hopes the certification hearing for the lawsuit will happen before the end of the year. [GN] ROYAL CANADIAN: Sued Over Personal Biometric Data Collection ------------------------------------------------------------- The Canadian Press reports that a Quebec photographer wants a judge to order the Royal Canadian Mounted Police to destroy all the images of Canadians it obtained through a controversial facial-recognition tool. Ha Vi Doan's proposed class-action lawsuit in Federal Court seeks unspecified damages for her and other Canadians whose photos and related information were allegedly part of a massive database compiled by U.S. firm Clearview AI and used by the Mounties. Clearview AI's technology worries many privacy advocates because it allows for the collection of huge numbers of images from multiple sources with the aim of helping police forces, financial institutions and other clients identify individuals from photos. The federal privacy commissioner said this month the company will stop offering its facial-recognition services in Canada in response to an investigation by the commissioner and three provincial counterparts. Clearview's retreat includes an indefinite suspension of the company's contract with the RCMP, its last remaining client in Canada. The Mounties said in February that their National Child Exploitation Crime Centre had two licences for the Clearview AI application and had used it in 15 cases, resulting in the identification and rescue of two children. The RCMP said a few of its units were also using Clearview AI on a trial basis to determine its usefulness. Doan's proposed class proceeding says the RCMP became a Clearview AI client even though the company's services entailed a "large-scale invasion of privacy of residents and citizens of Canada," as well as infringement of copyright. Doan is passionate about photography and takes pictures of herself and others, posting a significant number on her own website and online platforms such as Facebook and Instagram, the filing says. She alleges her "personal biometric information" and photos have been collected, copied, reproduced, stored or used by Clearview without her knowledge or consent. The class action would cover three types of plaintiffs: -- people in Canada whose images are in the Clearview AI database, -- those who were the subjects of targeted database searches by the RCMP, and -- those holding copyright and moral rights with respect to photos. It seeks a court order that the RCMP destroy all documents and information from Clearview in response to searches of the database. The court action also wants the Mounties to be barred from future use of the database "or similar services of other providers." The RCMP "should have known better" and verified compliance with Canadian laws and regulations before using Clearview's services, said Lev Alexeev, a lawyer for Doan. Cpl. Caroline Duval, an RCMP spokeswoman, said the force was reviewing the filing, but declined further comment since the matter is before the courts. Doan has filed a second planned class-action suit in Federal Court against Clearview AI, alleging privacy and copyright infringements. It seeks an order that Clearview destroy all personal information about Canadians and be forbidden from doing business in Canada. Representatives of Clearview AI had no immediate comment. On its website, the company says it aims to help law-enforcement agencies solve the toughest cases, and its technology comes with strict guidelines and safeguards to ensure investigators use it only for its intended purpose. Dozens of groups and individuals working to protect privacy, human rights and civil liberties recently wrote to Public Safety Minister Bill Blair urging a ban on the use of facial-recognition surveillance by federal law-enforcement and intelligence agencies. No federal directives on the use of facial recognition technology have been given to law enforcement, said Mary-Liz Power, a spokeswoman for Blair. "Canadians can continue to be confident in the important work performed by our agencies to keep our communities safe." [GN] SAIA MOTOR: Juarez Employment Suit Removed to N.D. California ------------------------------------------------------------- The class action lawsuit captioned as EDWIN JUAREZ, individually and on behalf of all others similarly situated v. SAIA MOTOR FREIGHT LINE LLC, a Louisiana Limited Liability company, and DOES 1 through 50, Inclusive, Case No. RG20061154 (Filed May 11, 2020), was removed from the Superior Court of the State of California for the County of Alameda to the U.S. District Court for the Northern District of California on July 9, 2020. The Northern District of California Court Clerk assigned Case No. 3:20-cv-04565 to the proceeding. The Plaintiff asserts claims against the Defendants on behalf of himself and the proposed putative class for failure to pay wages, including overtime pay, failure to provide meal periods and rest periods, and failure to pay timely wages as required by the Labor Code. Saia Motor provides truck transportation services. The Company offers purchase order verification, load building, pick-up and delivery, loading, consolidation, shipping, tracking, and carriage transportation.[BN] Defendant Saia Motor is represented by: Pamela Carroll Calvet, Esq. Daria Dub Carlson, Esq. BRYAN CAVE LEIGHTON PAISNER LLP 120 Broadway, Suite 300 Santa Monica, CA 90401-2386 Telephone: (310) 576-2100 Facsimile: (310) 576-2200 E-mail: pccalvet@bclplaw.com daria.carlson@bclplaw.com - and - Allison C. Eckstrom, Esq. BRYAN CAVE LEIGHTON PAISNER LLP 3161 Michelson Drive, Suite 1500 Irvine, CA 92612-4414 Telephone: (949) 223-7000 Facsimile: (949) 223-7100 E-mail: allison.eckstrom@bclplaw.com SAMSUNG ELECTRONICS: Attorneys Fees in ODD Antitrust Suit Vacated ----------------------------------------------------------------- In the case, In re: OPTICAL DISK DRIVE PRODUCTS ANTITRUST LITIGATION. INDIRECT PURCHASER CLASS, Plaintiff-Appellee, v. CONNER ERWIN, Objector-Appellant, v. SAMSUNG ELECTRONICS COMPANY, LTD.; et al., Defendants-Appellees, Case No. 19-15538 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit vacated the district court's order awarding attorneys' fees for the third of three settlements reached in the consumer electronics class action. Appellant Conner Erwin argues that the district court abused its discretion by not fully explaining why it awarded the class counsel a higher fee than the firm had proposed in its bid to secure appointment as the interim class counsel. The Ninth Circuit reviews for abuse of discretion the district court's award of attorneys' fees, but the district court must adequately explain its reasoning in order for the Court to conduct a meaningful review of the award's reasonableness. In an opinion vacating the class counsel's first- and second-round fee awards in the class action, a different panel of the Court clarified the standard for determining reasonable attorneys' fees in cases where the class counsel obtains appointment through a competitive bidding process. The opinion also concluded that the district court's stated reasons for approving a very sizeable variance from the class counsel's bid in the first- and second-round fee awards were inadequate given the magnitude of the difference. The Ninth Circuit vacated and remanded the third-round fee award for further findings consistent with the standard set forth in the concurrently filed opinion addressing the first- and second-round fee awards. Erwin contends that the district court abused its discretion by denying his request to unseal the class counsel's bid. Because the class counsel stated at oral argument that it no longer objects to Erwin's request to unseal its bid, the district court will unseal the bid on remand. A full-text copy of the Ninth Circuit's May 15, 2020 Memorandum is available at https://is.gd/6TdIGO from Leagle.com. SCHMIDT'S DEODORANT: Tenzer-Fuchs Sues Over Inaccessible Web Site ----------------------------------------------------------------- Michelle Tenzer-Fuchs, on behalf of herself and all others similarly situated v. SCHMIDT'S DEODORANT COMPANY LLC, d/b/a SCHMIDT'S NATURALS, Case No. 2:20-cv-03148 (E.D.N.Y., July 15, 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. According to the complaint, the Defendant's denial of full and equal access to its Web site, http://www.schmidts.com/,and the resulting denial of equal access to the goods and services offered thereby, is a violation of the Plaintiff's rights under the Americans with Disabilities Act. Because the Defendant's Web site is not equally accessible to blind and visually-impaired consumers, the Web site violates the ADA. The Defendant's Web site contains various and multiple access barriers that make it extremely difficult--if not impossible--for blind and visually-impaired consumers to attempt to complete a transaction. The Plaintiff seeks a permanent injunction to initiate 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 suffers from what constitutes a "qualified disability" under the Americans with Disabilities Act of 1990 and thus requires screen-reading software to read Web site content using her computer. The Defendant is a health and wellness product retailer and is an online retailer that specializes in developing and producing all-natural, vegan, and cruelty-free health and wellness products.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 105-13 Metropolitan Avenue Forest Hills, NY 11375 Phone: (718) 971-9474 Email: Jshalom@JonathanShalomLaw.com SIMMONS BANK: Violates CARES Act and SBA's Loan Program, JEK Says ----------------------------------------------------------------- JEK SERVICES INC. and JAMES E. KUSTURIN, JR. v. Simmons Bank, Centennial Bank, BankOZK, ArvestBank, First State Bank, First Western Bank, and ABC Banks 1-100, Case No. 4:20-cv-00836-KGB (E.D. Ark., July 14, 2020), is brought on behalf of the Plaintiffs and all others similarly situated against the Defendant Lenders for violations of the Coronavirus Aid, Relief, and Economic Security Act and the Small Business Administration's loan program, and for unjust enrichment and conversion under Arkansas law. On March 25, 2020, in response to the outbreak of the coronavirus ("COVID-19"), the federal government enacted emergency legislation to enable small businesses to continue employing and paying their employees by creating the Payroll Protection Program ("PPP"), which provides federally guaranteed loans to make payroll expenses for two months. The PPP is contained within sections 1102 and 1106 of CARES Act. To fund the PPP, Congress approved an initial $349 billion for the program. The CARES Act provides that the Administrator of the SBA "shall reimburse a "lender" for processing the loans. The CARES Act also authorizes the payment of a fee to "agents" who assist eligible recipients in preparing their PPP loan application in an amount that is not in excess of the limits established by the Administrator. The Plaintiffs contend that despite these clear instructions that Lenders are to pay the agent fees--and despite requests by the agents to the Lenders to be paid their fees--Defendant Lenders have unlawfully withheld those fees from the agents and have instead kept the funds intended for the agents for themselves. The Plaintiffs add that the Defendant Lenders have no legal authority under the CARES Act to deny the agents' fees due and owing to them by the CARES Act and the Rule. James E. Kusturin, Jr., is a registered tax return preparer, who resides at 7601 Westminster Place, in Fort Smith, Arkansas. JEK Services Inc. is an active corporation incorporated in the State of Arkansas and authorized to conduct business in Arkansas. The Defendants are state-chartered banks.[BN] The Plaintiffs are represented by: Robert M. Cearley, Jr., Esq. CEARLEY LAW FIRM, P.A. 901 N. University Ave. Little Rock, AR 72207 Telephone: (501) 372-5600 E-mail: bob@cearleylawfirm.com - and - James E. Arnold, Esq. Damion M. Clifford, Esq. Gerhardt A. Gosnell II, Esq. Tiffany L. Carwile, Esq. ARNOLD & CLIFFORD LLP 115 W. Main St., 4th Floor Columbus, OH 43215 Telephone: (614) 460-1600 E-mail: jamold@amlaw.com dclifford@amlaw.com ggosnell@amlaw.com tcarwile@amlaw.com SODEXO INC: Fails to Provide Compliant COBRA Notice, Thomas Says ---------------------------------------------------------------- Charles Thomas, on behalf of himself, and on behalf of all others similarly situated v. SODEXO, INC., Case No. 2:20-cv-02512-SHL-cgc (W.D. Tenn., July 15, 2020), alleges that the Defendant violated the Employee Retirement Income Security Act of 1974, as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985, by failing to provide the Plaintiff and the class with a COBRA notice that complies with the law. Despite having access to the Department of Labor's Model COBRA form, the Defendant chose not to use the model form--presumably to save money by pushing terminated employees away from electing COBRA, according to the complaint. Instead of utilizing the DOL Model Notice and sending a single, comprehensive COBRA notice "written in a manner calculated to be understood by the average plan participant" containing all required information, the Defendant concocted its own notification dual notice scheme. Specifically, the Plaintiff alleges, the Defendant sent eligible participants two written documents, mailed under separate cover. The Plaintiff notes that each document contained only some of the required information, and other critical information was omitted entirely from either document. He contends that the Defendant's COBRA dual-notification scheme creates confusion and challenges for recipients, the precise problems the DOL sought to avoid by publishing the Model Notice. The deficient COBRA notices at issue in this lawsuit both confused and misled the Plaintiff. He adds that it also caused him economic injuries in the form of lost insurance coverage and, as well as informational injuries. The Defendant has repeatedly violated ERISA by failing to provide participants and beneficiaries in the Plan with adequate notice, as prescribed by COBRA, of their right to continue their insurance coverage upon the occurrence of a "qualifying event" as defined by the statute, says the complaint. As a result of these violations, which threaten Class Members' ability to maintain their insurance coverage, the Plaintiff seeks statutory penalties, injunctive relief, attorneys' fees, costs and expenses, and other appropriate relief. The Plaintiff is a former employee of Defendant. He was covered under the Defendant's Health Plan, making him a participant/beneficiary under the Plan. The Defendant is the plan sponsor and plan administrator of the Sodexo Plan.[BN] The Plaintiff is represented by: Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Phone: 813-223-5505 Fax: 813-257-0572 Email: MEdelman@forthepeople.com SOPHIE'S CUBAN: Pantaleon Slams Tip Credit, Seeks Overtime Pay -------------------------------------------------------------- Secundino Herrera Pantaleon, individually and on behalf of others similarly situated, Plaintiff, v. 45th St. Cuban, LLC, MM Restaurant Enterprises LLC, 401 East 68 Holding LLC, Manuela Matos, Sofia Luna, Eduardo Mareo, Patricia Mahabir Santos, Milagros Doe and Michael Doe, Defendants, Case No. 20-cv-04696 (S.D. N.Y., June 18, 2020), seeks to recover unpaid minimum and overtime wages and redress for failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control two Latin American restaurants in New York under the name "Sophie's Cuban Cuisine," where Pantaleon was employed as delivery worker and a food preparer. He claims to have worked in excess of 40 hours per week, without appropriate minimum wage, overtime and spread of hours compensation for the hours that he worked. Sophie's failed to maintain accurate recordkeeping of the hours worked and failed to pay him appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Pantaleon was ostensibly employed as a delivery worker but spent a significant amount of time performing non-tipped duties. He was paid lower than the required tip-credit rate but was deducted a tip credit because his non-tipped duties exceeded 20% of each workday, thus allowing Sophies's to pay the tip-credit instead of the minimum wage rate, asserts the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 Email: michael@faillacelaw.com SPECIALTY RESTAURANTS: Siefert Suit Moved From Calif. to New York ----------------------------------------------------------------- The class action lawsuit captioned as JEFFREY SIEFERT, Individually and on Behalf of Class Members v. SPECIALTY RESTAURANTS CORP., Case No. 8:20-cv-00790 (Filed April 23, 2020), was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the Western District of New York (Buffalo) on July 9, 2020. The Western District of New York Court Clerk assigned Case No. 1:20-cv-00852-LJV to the proceeding. The case is assigned to the Hon. Judge Lawrence J. Vilardo. The case implicates the Defendant's longstanding policies and practices of failing to properly compensate all non-exempt service workers for service charge payments remitted to them as wages, and for work performed during unpaid meal periods. As a result, the Plaintiff and similarly situated workers were denied payment for all hours worked, including gratuity payments, regular wages owed, and overtime wages in violation of the New York Labor Law. The Plaintiff brings this class and collective action against the Defendant on behalf of all its current and former non-exempt hourly service workers, including individuals, who have worked for Defendant in New York as servers, waiters, bartenders, bussers, and other non-managerial service workers paid on an hourly basis, and subject to the Defendant's service fee policies and practices. The Plaintiff was employed as bartender and server by the Defendant at the Templeton Landing location in Buffalo, New York, from June 2014 to July 2015. The Defendant operates various restaurant locations and event-hosting spaces throughout the United States, including Templeton Landing, which is located in Buffalo, New York.[BN] The Plaintiff is represented by: Carolyn H. Cottrell, Esq. Kristabel Sandoval, Esq. Ori Edelstein, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com oedelstein@schneiderwallace.com ksandoval@schneiderwallace.com The Defendant is represented by: Helen Igorevna Braginsky, Esq. Sarah Elana Ross, Esq. LITTLER MENDELSON PC 633 West 5th Street, 63rd Floor Los Angeles, CA 90071 Telephone: (213) 443-4300 Facsimile: (213) 443-4299 TRANSPORTATION INSURANCE: Orthodontic Clinic Slams Denied Insurance ------------------------------------------------------------------- Jae Y. Hong, PLLC, Puyallup Oral and Maxillofacial Surgery, LLC, individually and on behalf of all others similarly situated, Plaintiffs, v. Transportation Insurance Company, Defendants, Case No. 20-cv-00892 (W.D. Wash., June 9, 2020), seeks injunctive relief, prejudgment and post-judgment interest at the maximum rate, attorney's fees and costs and such other relief from breach of contract. Plaintiffs own and operate an oral and maxillofacial surgical dental business located in Puyallup, Washington that purchased an all-risk commercial property insurance policy from Transportation Insurance for protection in the event of property loss and business interruption. But during the COVID-19 pandemic, it was denied coverage despite that policy does not contain an exclusion for pandemic and/or virus-related losses, says the complaint. [BN] Plaintiff is represented by: Amy Williams-Derry, Esq. Lynn L. Sarko, Esq. Ian S. Birk, Esq. Gretchen Freeman Cappio, Esq. Irene M. Hecht, Esq. Maureen Falecki, Esq. Nathan L. Nanfelt, Esq. KELLER ROHRBACK LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Fax: (206) 623-3384 Email: awilliams-derry@kellerrohrback.com lsarko@kellerrohrback.com ibirk@kellerrohrback.com gcappio@kellerrohrback.com ihecht@kellerrohrback.com mfalecki@kellerrohrback.com nnanfelt@kellerrohrback.com - and - Alison Chase, Esq. KELLER ROHRBACK LLP 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Fax: (805) 456-1497 Email: achase@kellerrohrback.com TREASURER AND RECEIVER: Judgment on Pleadings in Machado Upheld --------------------------------------------------------------- In the case, JEFFREY MACHADO & others vs. TREASURER AND RECEIVER GENERAL & another, Case No. 19-P-717 (Mass. App.), the Appeals Court of Massachusetts affirmed the judgments on the pleadings in favor of the Plaintiffs, vacated the dismissal of the complaints, and remanded for further proceedings on class certification. The Plaintiffs in these consolidated cases are veterans who successfully obtained relief from the denial of their claims for compensation under the Welcome Home Bonus Act. A judge of the Superior Court concluded that the Veteran's Bonus Appeals Board's denial of their claims was premised on an incorrect interpretation of the Act. The judge ruled that the Plaintiffs were eligible for a bonus after they received an honorable discharge at the conclusion of their first deployment, and that a less than honorable discharge after a second deployment did not divest them of their right to the bonus associated with their first (honorable) discharge. The judge granted the individual Plaintiffs judgment on the pleadings. He dismissed the class claim as moot, and ordered dismissal of the entire action. A second judge denied a motion for reconsideration. On appeal, the Plaintiffs assert that their class claims were not moot and that they were entitled to a ruling on class certification. The Appellate Court affirmed the judgments on the pleadings in favor of the Plaintiffs, vacated the dismissal of the complaints, and remanded for further proceedings on class certification. The Appellate Court finds that both judges rendered their rulings before the Supreme Judicial Court's decision in Gammella v. P.F. Chang's China Bistro, Inc., which held that resolution of the individual Plaintiffs' claims do not moot claims for class certification. Were the rule otherwise, successful prosecution of the class representatives' individual claims would invariably render the class claim moot. The Plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits. The Defendants maintain that the Appellate Court lacks appellate jurisdiction because the matter has been remanded to the agency. The Appellate Court holds that only the individual claims have been remanded to the board. The class claims have not been ruled upon. In a similar vein, the Defendants maintain that the Plaintiffs must exhaust their administrative remedies before proceeding with class certification. The Plaintiffs had exhausted their remedies at the time they filed suit. The remand pertained only to their individual claims, not the request for class certification, a form of relief only the motion judge could allow. Any complexity presented by the pursuit of class claims in an administrative law case are better addressed by the parties on remand in the context of determining whether class certification is appropriate, a matter as to which we express no opinion. Accordingly, the judgments on the pleadings in favor of the Plaintiffs are affirmed, the dismissal of the complaints is vacated, and the case is remanded for further proceedings consistent with the memorandum and order, the Appellate Court rules. A full-text copy of the Appellate Court's May 15, 2020 Memorandum & Order is available at https://is.gd/yOweLM from Leagle.com. UBER TECHNOLOGIES: Hassell Seeks Unpaid Wages, Reimbursements ------------------------------------------------------------- Kent Hassell, individually and on behalf of all others similarly situated, Plaintiff, v. Uber Technologies, Inc., Defendants, Case No. 20-cv-04062 (N.D. Cal., June 18, 2020), seeks redress for failure to provide meal periods, rest periods, minimum wages, overtime pay, complete and accurate wage/leave statements and resulting from unfair business practices; reimbursement of business-related expenses for violation of the California Labor Code, California Business and Professions Code, including declaratory relief, damages, penalties, equitable relief, costs and attorneys' fees. Hassell has worked as an Uber Eats driver in California. Uber Eats, a division of Uber Technologies, Inc., provides on-demand food delivery services. Uber allegedly misclassified its delivery drivers as independent contractors, requiring its drivers to pay business expenses including, but not limited to, the cost of maintaining their vehicles, gas, insurance, phone and data expenses and other costs and also failed to guarantee and pay its drivers minimum wage for all hours worked and overtime premiums for hours worked in excess of eight hours per day or forty hours per week. [BN] The Plaintiff is represented by: SHANNON LISS-RIORDAN, Esq. ANNE KRAMER, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 Email: sliss@llrlaw.com UNITEDHEALTH GROUP: Scott Suit Challenges Cross-Plan Offsetting --------------------------------------------------------------- RICK SCOTT and ROYCE D. KLEIN, on behalf of themselves and all others similarly situated v. UNITEDHEALTH GROUP, INC., UNITED HEALTHCARE SERVICES, INC., UNITED HEALTHCARE INSURANCE COMPANY, and UNITED HEALTHCARE SERVICES LLC, Case No. 0:20-cv-01570-PJS-TNL (D. Minn., July 14, 2020), challenges United's taking of "cross-plan offsets" against the thousands of Healthcare Plans it administers. Cross-plan offsetting occurs when United uses the assets from one Plan to recoup a financial loss from another, separate Plan. By engaging in cross-plan offsetting, United treats the thousands of Plans it administers as one extremely large piggybank, moving more than $1.2 billion among its Plans each year to suit its own interests, according to the complaint. Each cross-plan offset violates Employee Retirement Income Security Act of 1974 ERISA, and in most cases, the money ends up in United's own pocket. Employers provide healthcare benefits to employees as a form of compensation, with employees contributing wages in exchange for these benefits. Employees make such contributions provided that--pursuant to ERISA--the money will be used exclusively to pay Plan benefits and reasonable Plan administrative expenses. With its cross-plan offsets, however, United seizes this compensation and employee contributions from the Plaintiffs and other Plan participants and uses this money for its own non-Plan purposes, the Plaintiffs contend. Rick Scott is an Ohio resident. He has been an employee of AT&T since 2011. Mr. Scott has been a participant in AT&T's employee healthcare benefit plan. Royce D. Klein is a Washington resident. He was employed by CenturyLink, Inc., from 2000 until June 19, 2020. Mr. Klein has been and continues to be a participant in CenturyLink's employee healthcare benefit plan. The AT&T Plan and the CenturyLink Plan are among the health plans administered by United and governed by ERISA. United insures and administers healthcare plans, including employer group health plans, which are governed by ERISA.[BN] The Plaintiffs are represented by: June P. Hoidal, Esq. Carolyn G. Anderson, Esq. June P. Hoidal, Esq. Ian F. McFarland, Esq. ZIMMERMAN REED LLP 1100 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341-0400 E-mail: Carolyn.Anderson@zimmreed.com June.Hoidal@zimmreed.com Ian.McFarland@zimmreed.com - and - Karen L. Handorf, Esq. Julie S. Selesnick, Esq. Sarah D. Holz, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave., N.W. Fifth Floor, Washington, DC 20005 Telephone: (202) 408-4600 E-mail: khandorf@cohenmilstein.com jselesnick@cohenmilstein.com sholz@cohenmilstein.com - and - William K. Meyer, Esq. 626 Chestnut Avenue Towson MD 21204 Telephone: (410) 818-3892 E-mail: wkmlaw644@gmail.com WALMART INC: Hubmer Suit Removed From Super. Court to C.D. Calif. ----------------------------------------------------------------- The class action lawsuit captioned as DANIELLE HUBMER, Individually and on Behalf of All Others Similarly Situated v. WALMART, INC.; and Does 1-100, Case No. RIC2001569 (Filed June 8, 2020), was removed from the Superior Court of the State of California, County of Riverside, to the U.S. District Court for the Central District of California on July 9, 2020. The Central District of California Court Clerk assigned Case No. 5:20-cv-01369-JGB-KK to the proceeding. The Plaintiff alleges that she and members of a putative class of California residents purchased item(s) from Walmart and were denied a return because of a change in Walmart's return policy due to COVID-19, in violation of California Business & Professions Code. Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores, headquartered in Bentonville, Arkansas.[BN] Defendant Walmart is represented by: Jeffrey A. Rosenfeld, Esq. Rachel E. K. Lowe, Esq. Lisa Garcia, Esq. ALSTON & BIRD LLP 333 South Hope Street, 16th Floor Los Angeles, CA 90071-1410 Telephone: (213) 576-1000 Facsimile: (213) 576-1100 E-mail: jeffrey.rosenfeld@alston.com rachel.lowe@alston.com lisa.garcia@alston.com WAWA: Settles ESOP Lawsuit for $21.6 Million -------------------------------------------- Investment News reports that Wawa is paying $21.6 million to settle a 2018 class-action lawsuit involving the company's employee stock option plan, according to a court filing. The convenience store chain, which has a cult following on the East Coast, allegedly forced former employees out of the ESOP in 2014 and 2015. In doing so, the company allegedly breached its fiduciary duty, in part because former employees received less than fair market value for their stock holdings, according to the lawsuit. The case is separate from a similar lawsuit filed in 2016 against Wawa, which ended in a $25 million settlement. The newer case involves a different class of plaintiffs who separated from the firm between 2011 and 2015, according to court records. The new $21.6 million settlement will compensate about 10,000 former employees by about $500 per share of Wawa stock they owned, the proposed order read. The company's plan purchased nearly 44,000 shares from former employees included in the class. The settlement, which requires court approval, resolves claims that the company improperly limited the rights of former employees to stay invested in the stock plan until they reached age 68 and that it undervalued the stock it purchased from those accounts when it forced people out of the plan. The plaintiffs reached a settlement in principle with Wawa as early as December, though the specific terms were not disclosed publicly. Wawa did not immediately respond to a request for comment about the settlement.[GN] WEBER COUNTY, UT: Jail Faces Class Action Over COVID-19 Outbreak ---------------------------------------------------------------- Mark Shenefelt, writing for Standard-Examiner, reports that the Federal Public Defenders' office in Salt Lake City has filed a class action lawsuit against the Weber County Jail and the U.S. Marshals' Service over inmates' exposure to an outbreak of COVID-19. The petition, filed in U.S. District Court on July 10, alleges county officials and marshals "are aware of the grave dangers posed by COVID-19 and have failed to implement measures to comply with their constitutional obligations to those in their custody." As of July 10, the Weber County Sheriff's Office, which operates the jail, said 114 inmates were infected in the combined populations of 644 people in the 12th Street and Kiesel Avenue jails, according to data provided by the county. The jails' combined capacity is 1,148. Since the first positive COVID-19 test on June 21, "we have taken extreme measures to identify, test, isolate, and quarantine" inmates to contain the spread, the Sheriff's Office said in a news release on July 10. But the federal defenders' petition alleged inmates are subjected to "unlawful and unconstitutional confinement." They asked the court to order the immediate transfer of the most medically vulnerable individuals; inmates who have tested positive for COVID-19; and "those remaining inmates in excess of the jail's ability to comply with CDC guidelines." The petition also asks the court to "order the immediate implementation of (Centers for Disease Control) guidelines, including the social distancing and hygiene measures essential to lowering the risk of the disease and of death for those who remain." Jail officials have said thorough social distancing is largely impossible in the confined spaces of a jail but that they have done as much as they can to quarantine infected inmates from the rest. But the defenders asserted inmates' detention during the outbreak is "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk" and violates their constitutional right to safety in government custody. Without court intervention, inmates "will continue to be at imminent risk of severe, preventable illness or death," the petition said. The six inmates named in the petition are federal prisoners, some awaiting sentencing or trial. The Marshals' Service contracts with Weber County to house its prisoners pending the outcome of their cases. The suit said one of the inmates has asthma and is suffering shortness of breath. Three of the others have tested positive for COVID-19, the suit said. The petition names as defendants Sheriff Ryan Arbon, Utah District Marshal Matt Harris and Marshals' Service Director Donald Washington. The county has been under pressure from civil liberties groups and inmates and their families since the outbreak began. The American Civil Liberties Union of Utah, the El Comite Social Justice Movement and the Black Lives Matter Northern Utah chapter held a rally in front of the county building on July 10 urging County Attorney Chris Allred to work with local state court judges to release inmates. Allred and the Sheriff's Office said on July 10 they are doing all they can to help limit the outbreak. Efforts to contact Harris were not immediately successful on July 13. [GN] [*] Parliamentary Inquiry Into Class Actions in Australia Begins ---------------------------------------------------------------- John Collett, writing for The Sydney Morning Herald, reports that a parliamentary inquiry into class-action lawsuits that recently commenced will consider, as one of its key terms of reference, the impact of litigation funding on compensation levels received by members taking the actions. Litigation funders carry all the risk should a class action fail, covering costs. However, their commissions and the fees paid to lawyers who run the process can leave class-action members with far less compensation from any legal settlement should they win. The Australian Law Reform Commission found that when litigation funders were involved in a class action, the median return to class members was just 51 per cent, compared to 85 per cent when a funder was not involved. The emergence of class actions in Australia has been a boon for small investors, who had often been left in the hands of hard-pressed government agencies in order to seek redress, as the costs of legal action were prohibitive. There was a spate of collapses in the middle 2000s in which it became apparent that regulatory authorities did not have sufficient powers or resources to gain compensation for those who lost their money in shady financial managed schemes. However, class actions go well beyond managed investments. They also include shareholder actions, where investors purchase shares on the back of glowing profit guidance only to find later that the guidance was not warranted and the share price plunges. They also cover a wide range of other areas, such as unpaid entitlements and environmental contamination. Litigation funders carry the financial risk, rather than the law firms who run the class actions, should the legal proceedings fail. The members of the class action remain financially protected. However, the law firms and funders only take up class actions in which they believe there is a good chance of winning, so the financial risks taken by the funders are probably not as great as they first appear. The availability of litigation funding in Australia has increased as more financiers, including some from overseas, stump up cash to run legal actions. Although they undoubtedly have their benefits, there are some legitimate questions to ask about class actions that the inquiry will seek to answer when it reports its findings at the end of the year. It will also consider a recent change in Victoria, where lawyers are allowed to charge contingency fees for class actions, meaning they can take a percentage of any settlement as opposed to being only allowed to charge flat fees. Courts will decide what percentage lawyers take out of any settlement. Supporters of the change say that means there will be greater access to justice. Professor Michael Legg of the UNSW, an expert in the regulation of funders and shareholder class actions, says procedures and safeguards need to be in place to protect members of class actions, including ensuring that courts have adequate powers to oversee their conduct and fees charged. [GN] [*] Two Big U.S. Cos. Face Class Action on CCPA Violations ---------------------------------------------------------- Ibrahim Hasan, writing for The Law Society Gazette, reports that the California Consumer Privacy Act (CCPA) regulates the processing of California consumers' personal data, regardless of where a company is located. CCPA provides broader rights to consumers and stricter compliance requirements for businesses than any other US state or federal privacy law. CCPA is about giving individuals control over how their personal data is used by organisations. It requires transparency about how such data is collected, used and shared. It gives Californian consumers various rights including the right to: * Know and access the personal data being collected about them; * Know whether their personal data is being sold, and to whom; * Opt out of having their personal data sold; * Have their personal data deleted upon request; and * Avoid discrimination for exercising their rights. CCPA also requires the notification of each individual affected by a security breach involving personal data. It does not matter if the data is maintained in California or not. CCPA is often called the US equivalent of the EU's General Data Protection Regulation (GDPR). Both laws give individuals rights to access and delete their personal information. In some respects, however, CCPA does not go as far. For example, it only applies to for-profit entities, it does not require a legal basis for processing personal data (like article 6 of GDPR), there are no restrictions on international transfers and there is no requirement to appoint a data protection officer. Enforcement Unlike GDPR, CCPA does not have a regulator like the information commissioner in the UK. It is primarily enforced by California's attorney general (AG) through the courts, although there is a private right of action for a security breach. The courts can impose fines for breaches: * $2,500 for an unintentional and $7,500 for an intentional breach. * $100-$750 per incident per consumer -- or actual damages, if higher -- for damage caused by a security breach. A business shall only be in breach of the CCPA if it fails to cure any alleged breach within 30 days of being notified. While CCPA fines and damages may appear relatively low, it is important to note that they are per breach. A privacy incident can affect thousands or tens of thousands of consumers, in which case it could cost a company hundreds of thousands or even millions of dollars. Two big US companies are already facing a class action lawsuit alleging CCPA violations. Both suffered a data breach that compromised the names, addresses, and credit card information of more than 10,000 California residents, which were then sold on the 'dark web'. The lawsuit claims the companies failed to protect consumer data, provide adequate security measures and safeguard their systems from attackers, as well as delayed notification of the breach. During the pandemic, there has been more use of video chat and conferencing apps to stay connected. There are class actions against two videoconferencing companies claiming they failed to obtain consent from customers for the disclosure of their personal information to third parties such as Facebook. The California State Assembly held a hearing on June 12 on the California Privacy Rights Act (CPRA) ballot initiative. Californians for Consumer Privacy, an advocacy group, has gathered more than 900,000 signatures to place CPRA on the ballot in November. If enacted, CPRA will significantly amend CCPA and further expand privacy rights of California consumers, as well as the compliance obligations of California businesses. CPRA will, among other things, permit consumers to prevent businesses from sharing (in addition to selling) their personal data; correct inaccurate personal data about them; and limit businesses' use of 'sensitive personal information' ('special category data' under GDPR). This includes information about race, ethnicity, religion, union membership and biometric data. The proposed law will prohibit businesses from collecting and using personal information for purposes incompatible with the disclosed purposes, and from retaining personal information longer than reasonably necessary. Readers with knowledge of GDPR will agree that this new law is even more like GDPR than CCPA. CPRA will also establish a new California Privacy Protection Agency, which will be tasked with enforcing and implementing consumer privacy laws and imposing administrative fines. If enacted, it will become operative on 1 January 2023, although its obligations would only apply to personal data collected after 1 January 2022. A federal privacy law? CCPA represents the first real, comprehensive privacy legislation in the US. It will, no doubt, form the foundation of other state privacy regulations and quite possibly a US federal privacy regulation. Proactive businesses are already considering CCPA as a de facto US privacy law. Microsoft recently announced that it will apply the main CCPA rights to all its customers in the US. Nevada residents also now have more control over how their personal information is used. Senate Bill 220 gave consumers more power to keep websites from selling their information to third-party firms. CCPA's impact will be felt not just by California-based businesses. Any business that processes personal data about Californian consumers needs to re-evaluate its privacy practices. With 40 million Californian residents making up 12% of the US population, it is likely that most big businesses will have to comply with the CCPA, wherever they are based. With substantial fines and penalties for breaches, and a six-month 'look back' period, now is the time to implement CCPA compliance measures. [GN] Asbestos Litigation ASBESTOS UPDATE: Court of Appeals Upholds Verdict in J&J Talc Case ------------------------------------------------------------------ Tim Povtak, writing for Asbestos.com, reported that the Missouri Court of Appeals upheld a landmark jury verdict that said long-term use of Johnson & Johnson's talc products, possibly contaminated with asbestos fibers, had caused ovarian cancer in 22 women. The Court of Appeals also reduced the earlier, record-setting award for punitive and compensatory damages from US$4.69 billion to US$2.1 billion. A Johnson & Johnson spokesperson said the company would appeal again with the Supreme Court of Missouri. Johnson & Johnson has been flooded with more than 19,000 lawsuits in U.S. state and federal courts over its talc products, the majority of which pertain to ovarian cancer. Some of the lawsuits, however, involve malignant mesothelioma, a rare cancer caused almost exclusively by asbestos exposure. Results in recent trials have been mixed, with the company winning about half and appealing almost all of those it lost. Johnson & Johnson Stands by Its Talc Products Johnson & Johnson continues to insist its products are safe to use, but in May announced that it would stop selling its iconic, talc-containing Johnson's Baby Powder in the U.S. and Canada. The company cited a declining consumer demand and "misinformation around the safety of the product and the constant barrage of litigation advertising." In 2019, Johnson & Johnson recalled more than 30,000 bottles of baby powder after FDA scientists said they had discovered traces of asbestos in one bottle. Johnson & Johnson later said its own test of the same bottle showed no trace of asbestos. "We remain confident that our talc is safe, asbestos free and does not cause cancer," a spokesperson said after the latest appeal. "We continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts." Court of Appeals Rejects Johnson & Johnson Defense The Missouri Court of Appeals obviously disagreed with the company's defense. "This trial showed clear and convincing evidence defendants engaged in conduct that was outrageous because of evil motive or reckless indifference," the court said. "Motivated by profits, defendants disregarded the safety of consumers, despite the knowledge that talc in their products caused ovarian cancer." In its confirmation of the verdict, the court cited internal company memorandum, some dating as far back as 50 years ago, that there was concern about possible asbestos contamination in its talc. This most recent appeal stemmed from a jury verdict in 2018 where the jury originally awarded US$550 million in compensatory damages and US$4.14 billion in punitive damages. The reduction dropped to US$500 million and US$1.62 billion, respectively. Attorneys representing the plaintiffs said during the appeals process that six of the women had died before the 2018 trial began and five more have died since it ended. Of the original 22 plaintiffs, 17 were not Missouri residents, which led to the reduction in damages based upon the talc product they allegedly used. Johnson & Johnson appealed the original verdict, insisting that plaintiffs failed to present substantial evidence that the talc products had caused their cancers. After the appeal announcement, the attorney representing the plaintiffs encouraged consumers to discard any Johnson's Baby Powder they might have at home. "All you can do is fine them, and we need to fine them sufficiently that the industry wakes up and takes notice," attorney Mark Lanier said. FDA, EPA Getting Involved in Talc-Asbestos Issue The issue of talc contaminated with asbestos stems from the mining of the products, both naturally occurring minerals found in close proximity near the Earth's surface. This dispute often centers upon different testing methods for the contamination, along with quantifying elongate mineral particles, which have the same composition and structure as asbestos particles. In March, the FDA announced it had found asbestos-contaminated talc in nine of 52 products it tested during a year-long study. Johnson & Johnson's Baby Powder was one of the nine. The other eight were makeup products. The FDA is in the midst of formulating a uniform testing method that companies will be required to use in searching for asbestos in cosmetic talc. Asbestos already is heavily regulated by law, but the U.S. Environmental Protection Agency also is in the midst of tightening those regulations further or possibly banning the product completely. ASBESTOS UPDATE: Netflix Sues Neasden Studios for GBP200,000 ------------------------------------------------------------ Tristan Kirk at Evening Standard reported that Netflix is suing a north London studio for more than GBP200,000 over claims production of period drama Bridgerton had to be moved because of fears asbestos would fall on the set. The firm signed a GBP2-million-a-year deal to use Neasden Studios for the creation of the eight-part series, set in Regency London and starring Dame Julie Andrews. But High Court papers show Bridgerton had a troubled five-month stint in Neasden last year which ended abruptly in May when Netflix deemed the studio unsafe to use. The roof had been leaking, it is said, ceiling tiles fell down, and in one incident asbestos allegedly fell down on to a construction manager's face. According to Evening Standard, Stephen Jourdan QC said in written submissions for Netflix Studios UK that asbestos was then discovered in roof voids and on top of high beams, which had allegedly not been treated above the point where they could be seen from the ground. He said: "This created a serious risk of ACMs (asbestos containing materials) falling from the high-level beams and columns into the property, causing a danger to health." Mr. Jourdan said production was moved to an alternative venue "at very considerable expense". Netflix is suing the studios and owner Freddy Kelaty's firm, Asiatic Carpets, for at least GBP200,000 in damages, and wants a legal declaration it was entitled to prematurely terminate the lease. Mr. Kelaty insists Netflix was informed of the presence of asbestos from the outset and work had been done to make it safe. The studios denies deliberately misleading Netflix and contends there was no "danger to health". It is countersuing for more than GBP2.5 million in alleged unpaid rent and rates. ASBESTOS UPDATE: PPG Industries Had 500 Open Claims at June 30 -------------------------------------------------------------- PPG Industries, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2020, that it is aware of approximately 500 open and active asbestos-related claims pending against the Company and certain of its subsidiaries as of June 30, 2020. The Company states, "These claims consist of non-PC Relationship Claims against PPG and claims against a PPG subsidiary the Company acquired on April 1, 2013. The Company is defending these open and active claims vigorously. "PPG has established reserves totaling approximately US$190 million for asbestos-related claims that would not be channeled to the Trust which, based on presently available information, we believe will be sufficient to encompass all of PPG's current and estimable potential future asbestos liabilities. These reserves, which are included within Other liabilities on the accompanying condensed consolidated balance sheets, represent PPG's best estimate of its liability for these claims. "These reserves include a US$162 million reserve established in 2009 in connection with an amendment to the PC plan of reorganization for non-PC Relationship Claims other than claims arising from premises-related exposures. PPG does not have sufficient current claim information or settlement history on which to base a better estimate of this liability in light of the fact that the Bankruptcy Court's injunction staying most asbestos claims against the Company was in effect from April 2000 through May 2016. "These reserves also include PPG's best estimate, following an analysis performed in 2019 of its claims history and discussions with consultants and its counsel, of the value of the Company's potential liability for premises-related non-PC Relationship Claims against it and claims against PPG's subsidiary acquired on April 1, 2013 that are presently pending, and that are projected to be asserted through December 31, 2028. "PPG monitors the activity associated with its asbestos claims and evaluates, on a periodic basis, its estimated liability for such claims, its insurance assets then available, and all underlying assumptions to determine whether any adjustment to the reserves for these claims is required. "The amount reserved for asbestos-related claims by its nature is subject to many uncertainties that may change over time, including (i) the ultimate number of claims filed; (ii) the amounts required to resolve both currently known and future unknown claims; (iii) the amount of insurance, if any, available to cover such claims; (iv) the unpredictable aspects of the litigation process, including a changing trial docket and the jurisdictions in which trials are scheduled; (v) the outcome of any trials, including potential judgments or jury verdicts; (vi) the lack of specific information in many cases concerning exposure for which PPG is allegedly responsible, and the claimants' alleged diseases resulting from such exposure; and (vii) potential changes in applicable federal and/or state tort liability law. All of these factors may have a material effect upon future asbestos-related liability estimates. As a potential offset to any future asbestos financial exposure, under the PC plan of reorganization PPG retained, for its own account, the right to pursue insurance coverage from certain of its historical insurers that did not participate in the PC plan of reorganization. While the ultimate outcome of PPG's asbestos litigation cannot be predicted with certainty, PPG believes that any financial exposure resulting from its asbestos-related claims will not have a material adverse effect on PPG's consolidated financial position, liquidity or results of operations." A full-text copy of the Form 10-Q is available at https://is.gd/6znR5m ASBESTOS UPDATE: Settlement Reached on Cleanup in Arena Site ------------------------------------------------------------ Kevin Boneske, writing for The Press Times, reported that an Elkhorn company called in last summer to remove asbestos from the site where the Brown County Veterans Memorial Arena was demolished has reached a settlement in its lawsuit against the Village of Ashwaubenon. After receiving a partial payment of US$35,462, Balestrieri Environmental & Development claimed in a suit filed in February in Brown County Circuit Court it was still owed US$326,308 by the village. The settlement agreement directed the village to issue a check for US$280,000 to the law firm representing Balestrieri. The company's project manager, Alex Balestrieri, appeared before the village board last September when he said the village contracted Balestrieri to do an emergency cleanup at the site related to asbestos abatement missed by the initial inspection of the arena. According to The Press Times, Balestrieri said the demolition contractor, Veit, ended up demolishing some of the concrete rubble with asbestos into where the basement of the former Packers Hall of Fame was located. "We were then asked to come and remove it," he said. "The only issue is we couldn't quantify it." The Press Times also reported that in the information Balestrieri provided to the board, he noted the disposal rate for that material was calculated at US$150 per cubic yard, the contracted price. To determine how much the company should be paid, Balestrieri said that was based on the tonnage brought to the landfill and the U.S. Environmental Protection Agency volume-to-weight standards for construction and demolition materials. "We then did the math to figure out that we had roughly 1,640 yards, due to the fact that we knew about 85 percent of it was concrete and the other 15 percent of it was extra debris because it's demolition," he said. Balestrieri said he was contacted Aug. 23 by Village Manager Allison Swanson, who disputed the amount of material hauled away by saying it was about half of what the company claimed. The Press Times noted that the settlement agreement and release states the parties in the lawsuit reached a "compromise settlement of a disputed claim," which is not to be considered "an admission of any liability, fault, or obligation whatsoever by any party or to any other person or entity." ASBESTOS UPDATE: Union Carbide Faces Lawsuit over California Death ------------------------------------------------------------------ Maeve Allsup, writing for Bloomberg, reports that Union Carbide Corp. will face claims in a suit arising from the death of a California man who allegedly inhaled dust containing asbestos supplied by the Dow Chemical Co. subsidiary, a state appeals court ruled. Jovana Collantes sued Union Carbide over the death of her husband, Joel Hernandezcueva, who allegedly inhaled drywall debris containing asbestos mined by the company. Union Carbide allegedly supplied the asbestos contained in a joint compound used to build interior walls in the complex where Hernandezcueva later worked. ********* 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. 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