/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210108.mbx C L A S S A C T I O N R E P O R T E R Friday, January 8, 2021, Vol. 23, No. 1 Headlines ACM RESEARCH: Bronstein Gewirtz Reminds of February 19 Deadline AGHSBH MARKETING: Fails to Pay Proper Wages, Burke Suit Claims AMAZON.COM SERVICES: Faces Thomson Wage-and-Hour Suit in M.D. Fla. ANGELLCO LLC: Underpays Restaurant Staff, Saint Pierre Suit Claims AQUION INC: La Stella Suit Remanded to New Jersey Superior Court ATLANTIC WIRELESS: Underpays Sales Associates, Grice et al. Allege AUTOZONERS LLC: Fails to Pay Staff on Timely Basis, Confusione Says BANK OF NEW YORK: Third Cir. Vacates Judgment & Remands Butterline BAUMGART RESTAURANT: Class of Deliverymen Certified in Ding Suit BEAZER HOMES: Faces Sanni Suit Over Unpaid OT for Home Counselors BIG HEART: E.D. California Narrows Claims in Roper Consumer Suit BLINK HOLDINGS: Can Compel Arbitration in Jampol Suit, Court Says BRE ICONIC GWR: McCauley Files Suit in Maryland BUILDING YOUR DREAM: Fails to Pay Proper Wages, Tarax Suit Claims C&W FACILITY: Quezada Labor Class Suit Removed to N.D. California CASCADE PROCESS: Griffiths Sues Over Field Technicians' Unpaid OT CD PROJEKT: Faces Multiples Class Actions Over Cyberpunk Launch COMFORT ALL-STARS: Strickland Sues Over Unpaid OT for Laborers CORRECTIONS CORP: February 4 Class Action Opt-Out Deadline Set CORREVIO PHARMA: May 14 Settlement Fairness Hearing Set DALLAS COUNTY, TX: Fifth Circuit Affirms Prelim Injunction in Daves DIGITAL MEDIA: Sends Unsolicited Text Messages, Hooper Suit Claims EPPING GARDENS: Co-Owner Fleds to Greece Amid Class Action EQUITY TRUST: Order to Produce Documents in Jacobs Suit Reversed EVERGREEN PACKAGING: Underpays Production Workers, Carreno Claims FAIRFIELD, ME: Class Action Mulled Over PFAS Contaminated Wells FLEET COURIER: Fails to Pay Proper Wages to Drivers, Blount Says FORDHAM FULTON: Fails to Pay Minimum & OT Wages, De Jesus Claims GENZYME CORP: Wilkins Suit Moved From Indiana to Massachusetts GOOGLE LLC: Astarita Sues Over Online Display Advertising Monopoly GOOGLE: Privacy Suit Class Cert. Filing Deadline Set for July 16 GREAT ATLANTIC: Website Inaccessible to Blind, Monegro Claims GREAT CONSTRUCTION: Workers Collective Class Certified in Cruz Suit HOMEXPRESS MORTGAGE: Beal Sues Over Unsolicited Text Messages IDT DOMESTIC: Sedaghatfar Sues Over Unsolicited Text Messages INTERCEPT PHARMACEUTICALS: Chauhan Suit Removed to S.D. New York JAY INSLEE: Schumacher, et al., Seek to Certify Class K12 INC: Klein Law Firm Reminds Investors of January 19 Deadline K12 INC: Portnoy Law Firm Reminds Investors of January 19 Deadline LOUISIANA: 2017 Class Certification Order Reinstated in Krielow MALAYSIA: Class Action Mulled Over Unscheduled Water Disruptions MARS WRIGLEY: Beers Sues Over Ice Cream Bars' Deceptive Labels MDL 2924: 2 Ranitidine Product Liability Suits Moved to S.D. Fla. MDL 2931: Zvi v. Delta Dental Antitrust Row Moved to N.D. Cal. MDL 2967: 6 Narcolepsy Drug Antitrust Cases Moved to N.D. Cal. MDL 2967: 9 Clearview Data Breach Suits Transferred to N.D. Ill. MDL 2968: 7 Generali Insurance Disputes Transferred to S.D.N.Y. MICROSOFT CORP: Seeks Arbitration of Xbox Controllers Class Action MIDDLE KENTUCKY: Campbell Seeks Conditional Class Status MINDFINDERS INC: Class Certification Deadline Stayed in Dew Suit MOWI ASA: Faces Starr Suit Over Mowi's Salmon's Deceptive Labels NEW YORK, NY: Homeless Students' WiFi Suit Heads to Trial NEW YORK: Bid for Expedited Discovery Schedule in E.G. Granted NORTHERN DYNASTY: Levi & Korsinsky Reminds of Feb. 2 Deadline OPTIO SOLUTIONS: Anfibio FDCPA Suit Stayed Pending Arbitration Bid PEACHTREE INVESTMENT: Peskin Suit Alleges Unlawful SCE Strategy PLAINS MARKETING: Settlement Class Certified in Price Trust Suit POSTMATES INC: Immediato Wage & Hour Suit Goes to D. Massachusetts QIWI PLC: Pomerantz Law Firm Reminds of February 9 Deadline QUANTUMSCAPE CORP: Bernstein Liebhard Probes Securities Claims QUANTUMSCAPE CORP: Wolf Haldenstein Investigates Securities Claims QUDIAN INC: April 27 Proposed Settlement Fairness Hearing Set RESTAURANT BRANDS: Frank R. Cruz Reminds of Feb. 19 Deadline RESTAURANT BRANDS: Howard G. Smith Reminds of Feb. 19 Deadline RESTAURANT BRANDS: Portnoy Law Firm Announces Class Action Filing SOLARWINDS CORP: Rosen Law Firm Files Securities Class Action SOLARWINDS CORP: Schall Law Firm Announces Class Action Filing SOLARWINDS CORPORATION: Bremer Sues Over 8% Drop in Share Price SP0N INC: Faces Sedaghatfar Suit Over Unsolicited Text Messages SPLUNK INC: Rosen Law Firm Reminds of February 2 Deadline STARBUCKS CORP: Store Managers' Suit to Proceed in Federal Court THEVEGASPACKAGE.COM: Fisher "TCPA" Suit Seeks to Certify Class TIVITY HEALTH: March 1 Class Action Opt-Out Deadline Set TUMINO'S TOWING: Kiley Suit Remanded to New Jersey Superior Court TWITTER INC: Faces Securities Class Action From Shareholders UNITED STATES: Deaton Sues Over Misclassification of XRP Currency VIVINT SOLAR: Securities Suit Transferred From New York to Utah VSL PHARMACEUTICALS: Maryland Court Narrows Claims in Starr Suit WALMART INC: Tsui Sues Over Associates' Unpaid Military Leave WORCESTER, MA: Faces Disability Discrimination Suit During Pandemic YLLI CORP: Gonzales Sues Over Restaurant Staff's Unpaid Wages [*] Bitcoin Industry Regulations Will Remain Amid Class Actions [*] Lawyers Fail to Get COVID Insurance Cases Coordinated Into MDL Asbestos Litigation ASBESTOS UPDATE: Lincoln City Sued Over Mesothelioma Death ********* ACM RESEARCH: Bronstein Gewirtz Reminds of February 19 Deadline --------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against ACM Research, Inc. ("ACM" or the "Company") (NASDAQ: ACMR) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired ACM securities between March 6, 2019 - October 7, 2020, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/acmr. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint alleges that throughout the class period, Defendants made false and/or misleading statements and/or failed to disclose that: (1) ACM Research's revenues and profits were diverted to undisclosed related parties, and (2) consequently, the company materially overstated its revenues and profits. On October 8, 2020, analyst J Capital Research ("J Capital") published a report concerning ACM, in which J Capital concluded that ACM "is a fraud, over-reporting both revenue and profit." The report cited, among other things, J Capital's visits to "sites in China, Korea, and California" and "more than 40 interviews." J Capital asserted that "[w]hat real profit the company has is apparently being siphoned off to related parties." The J Capital report concluded that ACM's revenue was overstated by 15-20% and claimed to have "evidence that undisclosed related parties are diverting revenue and profit from the company." Following this news, ACM's stock price dropped $1.09 per share, or 1.52%, to close at $70.79 per share on October 8, 2020. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/acmr or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in ACM you have until February 19, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. Contacts: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Hurwitz 212-697-6484 | info@bgandg.com [GN] AGHSBH MARKETING: Fails to Pay Proper Wages, Burke Suit Claims -------------------------------------------------------------- JAMES BURKE, individually, and on behalf of all others similarly situated, Plaintiff v. AGHSBH MARKETING & DISTRIBUTION, LP d/b/a AROOGA'S GRILL HOUSE & SPORTS BAR, Defendant, Case No. 1:20-cv-02425-CCC (M.D. Pa., December 28, 2020) is a class and collective action complaint brought by the Plaintiff against the Defendant seeking all available remedies under the Fair Labor Standards Act. The Plaintiff has worked for the Defendant as a manager between April 2018 and December 2018. Before he became a Manager, the Plaintiff has undergone the Defendant's Certified Training Program as a Manager-In-Training (MIT), which is non-negotiable prerequisite to the Manager position that is not waived on the basis of prior managerial experience. The training lasted approximately one month beginning on April 23, 2018 and ending on May 20, 2018. The Plaintiff claims that he and other similarly situated MITs performed non-exempt duties during their training and consistently worked days that exceeded 10 hours and weeks that exceeded 40 hours. However, the Defendant systematically denied them of their lawfully earned overtime compensation at a rate of one and one-half times their regular hourly wage for hours worked in excess of 40 hours per workweek. In addition, the Defendant failed to make, keep, and preserve records to determine their lawful wages, actual hours worked, and other conditions of employment as required by the federal and state law. AGHSBH Marketing & Distribution, LP d/b/a Arooga's Grill House & Sports Bar operates a Pennsylvania-based restaurant chain in Pennsylvania, Connecticut, Florida, Massachusetts, New Jersey, New York, and Rhode Island. [BN] The Plaintiff is represented by: Shanon J. Carson, Esq. Camille Fundora Rodriguez, Esq. BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4620 E-mail: scarson@bm.net crodriguez@bm.net AMAZON.COM SERVICES: Faces Thomson Wage-and-Hour Suit in M.D. Fla. ------------------------------------------------------------------ ROGER THOMSON, on behalf of himself and all others similarly situated, Plaintiff v. AMAZON.COM SERVICES LLC, Defendant, Case No. 8:20-cv-03121 (M.D. Fla., December 31, 2020) is a class action against the Defendant for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and all others similarly situated manual laborers overtime pay for all hours worked in excess of 40 hours in a workweek. The Plaintiff was employed by the Defendant as a manual laborer in Hillsborough County, Florida from 2014 until 2020. Amazon.com Services LLC is a company that provides online retail and delivery services throughout Hillsborough County, Florida and other surrounding counties in Central Florida. [BN] The Plaintiff is represented by: Kyle J. Lee, Esq. LEE LAW, PLLC 1971 West Lumsden Road, Suite 303 Brandon, FL 33511 Telephone: (813) 343‐2813 E-mail: Kyle@KyleLeeLaw.com ANGELLCO LLC: Underpays Restaurant Staff, Saint Pierre Suit Claims ------------------------------------------------------------------ CAROLE SAINT PIERRE, on her own behalf and others similarly situated, Plaintiff v. ANGELLCO, LLC DBA LE RIVAGE RESTAURANT and PAUL COLLANGE, Defendants, Case No. 9:20-cv-82480 (S.D. Fla., January 1, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and all others similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek, failing to properly record all their hours worked, and making improper deductions from their pay. Ms. Saint Pierre worked as a dishwasher, prep-cook, food preparer, certain busser duties, merchandise stocker, maintenance and cleaning of the restaurant, and activities related to the restaurant's aesthetic from 2007 through August 2020. Angellco, LLC, doing business as Le Rivage Restaurant, is an owner and operator of a restaurant located in Boca Raton, Florida. [BN] The Plaintiff is represented by: Maguene D. Cadet, Esq. LAW OFFICE OF DIEUDONNE CADET, P.A. 2500 Quantum Lakes Drive, Suite 203 Boynton Beach, FL 33426 Telephone: (561) 853-2212 Facsimile: (561) 853-2213 E-mail: Maguene@DieudonneLaw.com AQUION INC: La Stella Suit Remanded to New Jersey Superior Court ---------------------------------------------------------------- The U.S. District Court for the District of New Jersey grants the Plaintiff's renewed motion to remand to the New Jersey Superior Court the case titled JENNIFER LA STELLA v. AQUION, INC. d/b/a RAINSOFT, and HOME DEPOT, U.S.A., INC., Case No. 19-cv-10082 (FLW) (D. N.J.). The matter arises out of a dispute over an in-home water precipitation test. Plaintiff La Stella sues Defendants Aquion and Home Depot under state law on behalf of a putative class of consumers. La Stella alleges that Rainsoft violated the New Jersey Consumer Fraud Act ("NJCFA") by conducting deceptive in-home water precipitation tests designed to "invariably fail" a household's water supply and induce consumers to purchase expensive water treatment systems. The Plaintiff filed her complaint in New Jersey Superior Court, Law Division, Hunterdon County, asserting three causes of action: a violation of the NJCFA, unjust enrichment, and civil conspiracy. Her Complaint defines the class as any consumer who purchased a water treatment system after a precipitation test, and the class period as April 2013 to March 2019. On April 6, 2019, the Defendants removed the matter to federal court under the Class Action Fairness Act ("CAFA") contending that the amount in controversy exceeds $5 million. In support, the Defendants provided a declaration from Clifford Leegard, an Aquion employee. Leegard stated that the Defendants sold at least one water conditioning system drinking water system or water filtration system to at least 4,626 customers in New Jersey since March 8, 2013. The Defendants then calculated purported damages per class member as $2,000, added punitive damages and attorneys' fees, and arrived at an amount in controversy well over $5 million. On June 17, 2019, La Stella moved for remand, arguing that the Defendants added all consumer sales in New Jersey to meet the amount in controversy without adducing any evidence to show that every sale followed an in-home water precipitation test. Chief District Judge Freda L. Wolfson issued an order on Jan. 15, 2020, granting La Stella's motion. She found that as defined in the Plaintiff's Complaint, the putative class members only include those individuals, who were subject to an in-home water precipitation test prior to their purchase of a Rainsoft product. Contrary to the Defendants' contentions, the Plaintiff has not specifically alleged that all sales of Rainsoft product are accompanied by in-home water testing; rather, the Plaintiff's consumer fraud allegations stem from the in-home water testing and the class is limited to individuals who were subject to such testing, and the alleged misrepresentations, Judge Wolfson notes. Accordingly, neither the total number of sales to New Jersey residents nor the total proceeds of all New Jersey sales is an appropriate metric for determining the amount of controversy in the action, because both figures include transactions which would fall outside of the proposed class definition. Judge Wolfson then ordered "limited jurisdictional discovery" to ascertain the appropriate amount in controversy. To prove the class size, Aquion submits a declaration and related testimony from Curtis Charles Wunder, owner of Atlantic Water Products ("AWP"), a New Jersey Rainsoft dealer. The Wunder Declaration states that "at least half" of AWP's "at least 1,200" Rainsoft sales from 2018-2019 followed an in-home precipitation test. Wunder based the conclusion, not on first-hand knowledge or data, but on his business experience, sales background, and training program for salespeople. Importantly, however, Wunder testified that the decision to perform a precipitation test is "up to each salesman" and is not tracked by AWP in any manner, he was not present for virtually any of AWP's in-home sales between 2013 and 2018, and he would not know whether a precipitation test was performed unless he was there. Without adducing further documentary evidence, Aquion uses Wunder's "educated guess" as to the test-to-sales ratio on this motion. Judge Wolfson says that not only is the Wunder Declaration insufficient evidence, but she finds that it is also unreliable. It is important to reiterate that Wunder attests to just 1,200 sales between 2018-2019 in his Declaration. To show the potential class size from 2013-2019, the Defendants resort to extrapolating from the warranty data. Even assuming that is an appropriate starting point, Wunder never attests to the test-to-sales ratio during the entire class period, but only the last year. The Defendants offer no evidence whatsoever as to the ratio from 2013-2017. As such, there is no basis for the inference that the fifty percent rate should apply to sales not made in 2018-2019, even if the Court takes it (as well as the warranty data) at face value. More importantly, notwithstanding that deficiency, the Defendants have not come close to bridging the gap between the Declaration and the speculative conclusion that fifty percent of AWP's sales--whether 2,901 or 1,200, i.e., during whatever time period -- followed a precipitation test, Judge Wolfson opines, citing Toribio v. ITT Aerospace Controls LLC, No. 19-5430 (C.D. Cal. Sept. 5, 2019). The problem is that the Defendants fail to explain at all, much less "in detail," exactly how Wunder arrived at a fifty percent test-to-sales ratio or, more importantly, why that ratio is realistic and reliable, Judge Wolfson writes, citing Wilder v. Roma Food Enterprises, Inc., No. 14-8123 (D.N.J. Oct. 19, 2015). She adds, among other things, that Wunder's Declaration also fails because it shows that he cannot provide a number that should readily exist, Hoffman v. Teleflora LLC, No. 15-4810 (D.N.J. Feb. 3, 2016). Because it lacks a sufficient factual basis, the Court finds that the Wunder Declaration is not reliable evidence to establish the amount in controversy. As such, the Defendants have failed to prove by a preponderance of the evidence that jurisdiction exists under CAFA. The Plaintiffs' Motion to Remand is, therefore, granted and the matter is remanded to New Jersey Superior Court, Law Division, Hunterdon County, for further proceedings. A full-text copy of the Court's Opinion dated Dec. 28, 2020, is available at https://tinyurl.com/y95zxeca from Leagle.com. ATLANTIC WIRELESS: Underpays Sales Associates, Grice et al. Allege ------------------------------------------------------------------ BRENTON L. GRICE and LATEQUA L. BROWN, individually and on behalf of all others similarly situated, Plaintiffs v. ATLANTIC WIRELESS COMMUNICATIONS, INC., Defendant, Case No. 4:20-cv-00240-BO (E.D.N.C., December 29, 2020) brings this complaint as a collective action against the Defendant for its alleged illegal practices that violated the Fair Labor Standards Act. The Plaintiffs, who were employed by the Defendant as Wireless Retail Sales Associates, allege that the Defendant issued them paychecks on a biweekly basis that did not properly record or compensate them for all overtime hours that they worked. Purportedly, the Defendant has been fraudulently accessing its timekeeping system and manually reduced the actual number of hours worked by the Plaintiffs and other similarly situated sales associates. Moreover, the Defendant failed to include in their regular rates of pay their commissions and spiffs in their total weekly earnings when computing their overtime pay rate. As a result, the Defendant failed to accurately pay their overtime compensation at one and one-half times their regular rates of pay for all hours worked over 40 in a workweek. Atlantic Wireless Communications, Inc. owns and operates U.S. Cellular branded retail stores located in North Carolina and Missouri. [BN] The Plaintiffs are represented by: Philip J. Gibbons, Esq. GIBBONS LEIS, PLLC 14045 Ballantyne Corporate Place, Ste. 325 Charlotte, NC 28277 Tel: (704) 612-0038 E-mail: phil@gibbonsleis.com AUTOZONERS LLC: Fails to Pay Staff on Timely Basis, Confusione Says ------------------------------------------------------------------- KEITH CONFUSIONE and RANDOLPH BRANNIGAN, on behalf of themselves and all others similarly situated, Plaintiffs v. AUTOZONERS, LLC, Defendant, Case No. 2:21-cv-00001 (E.D.N.Y., January 2, 2021) is a class action against the Defendants for violations of the New York Labor Law by failing to pay the Plaintiffs and all others similarly situated workers on a timely basis and failing to provide wage rate notice and basis of pay. Plaintiffs Confusione and Brannigan were employed as sales clerks at the Defendant's store from September 2014 to February 2020 and from June 2019 to February 2020, respectively. AutoZoners, LLC is a retailer and distributor of automotive replacement parts and accessories, headquartered in Memphis, Tennessee. [BN] The Plaintiffs are represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 825 Veterans Highway-Ste. B Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: promero@romerolawny.com BANK OF NEW YORK: Third Cir. Vacates Judgment & Remands Butterline ------------------------------------------------------------------ The U.S. Court of Appeals for the Third Circuit vacates the District Court's judgment and remands for further proceedings the case entitled MARK BUTTERLINE, Individually and as Administrator of the Estate of Lisa Butterline, and on behalf of himself and all others similarly situated, Appellant v. THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, FKA The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-RP1 I/P/A Bank of New York Trust, Co.; CITY OF PHILADELPHIA; PHILADELPHIA SHERIFF'S OFFICE, Case No. 18-2908 (3d Cir.). Mark and Lisa Butterline sued the City of Philadelphia and the Philadelphia Sheriff's Office over the Sheriff's Office's failure to collect and distribute excess proceeds from the sale of their foreclosed property. The District Court denied the Butterlines leave to assert their procedural due process claim on the ground that the claim was time-barred. In November 2007, the Bank filed a foreclosure action against the Butterlines, who had fallen behind on their mortgage. The foreclosure action resulted in a judgment of $62,764.79 against the Butterlines. Their home was subsequently listed for a sheriff's sale. On Nov. 1, 2011, after a competitive bidding process, the Bank won the sale with a bid of $93,000. The sum of the foreclosure judgment and the sheriff's costs was $79,055.90. The winning bid exceeded that amount by $13,944.10. Under Pennsylvania law, the Butterlines had five years from the time of the sale to claim the excess funds. If the funds were unclaimed, they would be retained by the Commonwealth of Pennsylvania. However, the Sheriff's Office never collected the entire bid amount or filed a schedule of distribution. Instead, the Butterlines' property was deeded to the Bank on July 23, 2012, after the Bank had paid only the sheriff's costs. The deed, however, stated that the transfer of title was for the entire bid amount. The deed was recorded on Oct. 31, 2012. After unsuccessfully attempting to have the sheriff's sale set aside, the Butterlines filed a claim with the Sheriff's Office's Defendant Asset Recovery Team ("DART") to claim the excess funds. In its Dec. 18, 2014 letter, denying the Butterlines' claim, DART informed the Butterlines that, whenever an executing creditor in a foreclosure wins the sale of the foreclosed property, the creditor has to pay only the sheriff's costs. Since the Sheriff's Office never received any excess funds, the DART concluded, the Butterlines were "not due any monies" from the sale, and their case was considered closed. On March 19, 2015, the Butterlines filed a putative class action against the City under 42 U.S.C. Section 1983, claiming that the City had violated their right to procedural due process by depriving them of their interest in the excess funds to which they were entitled. The Butterlines later moved to amend their complaint. However, the District Court partially denied the motion, and, in particular, denied the Butterlines leave to renew their procedural due process claim, which previously had been dismissed without prejudice. The District Court initially observed that the Butterlines brought their suit in March 2015 and that their procedural due process claim had a two-year statute of limitations. Since the property interest at stake was the Butterlines' "right to receive the excess proceeds from the sheriff's sale of their home," the District Court determined that their injury "would have occurred no later than when the City gave the Bank complete title to the Property without (1) requiring it to pay that portion of the purchase price representing the excess proceeds and (2) distributing those proceeds to them." Thus, the District Court determined that the injury would have occurred no later than October 2012, when the deed was recorded, and the statute of limitations would have expired by the time the Butterlines sued. In addition, it held that the Butterlines could not rely on the discovery rule to toll the statute of limitations because they could not show that they had acted with reasonable diligence in discovering their injury. Having concluded that the Butterlines' procedural due process claim was untimely and not subject to tolling, the District Court denied the Butterlines leave to amend on the basis of futility. The Butterlines appealed. The District Court determined that the Butterlines' procedural due process claim accrued and the statute of limitations began to run in October 2012. It found that was the point when the Butterlines should have known both that excess proceeds existed and that the City had not distributed any money from the sale to them. Judge Roth finds that that determination is erroneous. A procedural due process violation is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. If there is a process that apparently provides adequate procedural remedies, a plaintiff must avail himself of that process before bringing a procedural due process claim. Because the City provided the DART process, the Butterlines were required to -- and did -- avail themselves of that process. It was not until the Sheriff's Office notified them in December 2014 that it had failed to collect the entire bid amount that their procedural due process claim became viable and that the statute of limitations began to run. Their suit, filed about three months later, was thus timely, Judge Roth holds. Even assuming the statute of limitations had begun to run in October 2012, the Panel concludes that the discovery rule would have tolled its running until Dec. 18, 2014. Under Pennsylvania law, the discovery rule tolls the running of the applicable statute of limitations until the point where the complaining party knows or reasonably should know that he has been injured and that his injury has been caused by another party's conduct. To invoke the rule, a plaintiff must exercise reasonable diligence in discovering his injury, which means he must establish that he exhibited those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others. The District Court's ruling hinged on the fact that the Butterlines could have submitted their request to the DART earlier. According to the District Court, this fact refutes any claim that they acted with reasonable diligence and precludes the application of the discovery rule, The Appellate Court disagrees. Judge Roth avers that the Butterlines were reasonably diligent, or at least reasonable minds could disagree over whether they were. The City, consistent with Pennsylvania law, announced in print that the entire winning bid amount for the sold property would be collected and the City would distribute any excess to the Butterlines, based on a schedule it would file. Although the Sheriff's Office failed to file a schedule of distribution or to distribute any excess funds to the Butterlines, the Butterlines initially attempted to have the sale set aside, were denied in that attempt, and then timely pursued their claim to the excess funds that the sale should have generated. They submitted a request to the DART before the funds would be considered abandoned and unclaimed. The District Court acknowledged that the Butterlines' DART claim was timely but stated that the timeliness of their DART claim does not render their procedural due process claim timely given their failure to exercise diligence in pursuing proceeds from the sheriff's sale. Judge Roth believes that the timeliness of the Butterlines' DART claim is a significant factor in determining whether they exercised reasonable diligence. To hold that reasonable diligence indisputably required the Butterlines to have inquired earlier would alter the standard beyond what is reasonable. More importantly, Judge Roth says, it finds no support in law since the discovery rule applies when the plaintiff has no reason to believe he may have been injured. That being the case, irrespective of the accrual date, the discovery rule would have tolled the statute of limitations on the Butterlines' procedural due process claim until December 2014 when their DART claim was denied. The Butterlines' suit, thus, was timely. The Appellate Court vacates the District Court's judgment, dismissing their claims and remands the case for further proceedings consistent with its Opinion. A full-text copy of the Court's Opinion dated Dec. 28, 2020, is available at https://tinyurl.com/yc65or6k from Leagle.com. Daniel C. Levin -- dlevin@lfsblaw.com -- Levin, Sedran & Berman, at 510 Walnut Street, in Philadelphia, Pennsylvania. William T. Wilson, Bailey & Ehrenberg, at 120 North Church Street, in West Chester, Pennsylvania, Counsel for Appellant. Craig R. Gottlieb -- craig.gottlieb@phila.gov -- Jennifer MacNaughton -- jennifer.macnaughton@phila.gov -- City of Philadelphia Law Department, at 1515 Arch Street, in Philadelphia, Pennsylvania, Counsel for Appellee. BAUMGART RESTAURANT: Class of Deliverymen Certified in Ding Suit ---------------------------------------------------------------- In the case, GUI HUA DING, et al., Plaintiffs v. BAUMGART RESTAURANT, INC., et al., Defendants, Case No. 18-10358 (D.N.J.), Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey granted in part and denied in part the Plaintiffs' motion to certify a class and collective action. Plaintiffs Gui Hua Ding and Zhi Qiang Li, former deliverymen at the Defendants' restaurant, seek to certify a class of employees pursuant to Federal Rule of Civil Procedure 23 and Section 216(b) of the Fair Labor Standards Act ("FLSA"). Plaintiff Ding filed the Complaint in the matter on June 10, 2018, alleging that the Defendants failed to pay him minimum wage and compensate him for overtime work as required by the FLSA and New Jersey Wage and Hour Law ("NJWHL"). He further alleges that the Defendants had a policy and practice of underpaying other non-exempt and nonmanagerial employees. On July 9, 2019, Plaintiff Li filed a consent to join as a Plaintiff in the matter. Mr. Ding was hired as a deliveryman at Defendant Baumgart Restaurant, Inc. on Oct. 1, 2015. Defendants Steve Wu, Marsha Wu, and Gou-Fu Wang are founders of the Baumgart enterprise, which includes Baumgart Cafe, and had the power to hire, fire, determine wages, and establish work schedules for employees. Ding also alleges that Defendant Thean Choo Chang was the owner/operator of Baumgart Next Door, and also had the power to hire, fire, determine wages, and establish work schedules. Mr. Ding states that between October 1, 2015 and September 30, 2017, he worked 10.5-hour shifts five days a week and a five-hour shift once a week. Thus, Ding regularly worked 57.5 hours per week. From about Oct. 1, 2017 to April 29, 2018, Ding worked 10.5 hours per day, five days a week, and was on driver duty three to four days a week. On average, Ding worked approximately 58 hours a week during this time frame. He was paid $325 per week and an additional $15 each day he was on driver duty. Ding was never given any breaktime throughout his employment. Mr. Li was also a deliveryman for Baumgart Cafe from Aug. 1, 2015 through March 10, 2019. Between Aug. 1, 2015 and Sept. 30, 2017, Li worked approximately 58 hours a week, and was on driver duty three or four days a week. Thus, Li worked an average of 64 hours a week during this time period. Li was paid $300 a week plus an additional $15 each day he was on driver duty. Between Oct. 1, 2017 and March 10, 2019, Li worked an average of 52.5 hours a week, and was on driver duty three to four days a week. Accordingly, Li worked a total of approximately 58 hours a week during this time, and was paid $325 a week, with an additional $15 for each day he was on driver duty. He also contends that he was not given any time for breaks. Messrs. Ding and Li both allege that the Defendants had a policy of refusing to pay minimum wage, as well as overtime, to other non-exempt and non-managerial employees. They continue that the policy violates the FLSA and the NJWHL's requirements for employers to provide one and a half times the wage rate for every hour worked in excess of 40 hours per week. The Plaintiffs seek several forms of relief, including compensation for unpaid minimum and overtime wages. On April 19, 2019, Ding filed a motion to conditionally certify and provide notice to a class of similarly situated, non-managerial employees for his FLSA claims. In support of the claim that other putative class members (all non-exempt, non-managerial employees in the three-year period prior to the filing of the claim) are "similarly situated," the Plaintiff submitted an affidavit regarding the hours and pay rates of other employees. The Court denied Ding's motion without prejudice because Ding failed to provide sufficient evidence of a factual nexus between his experiences and those of all non-managerial employees. Plaintiffs Ding and Li filed the instant motion to certify a class pursuant to the FLSA and Rule 23 on April 12, 2020. They again seek to certify a class of all non-managerial employees and, in the alternative, seek to certify a class of deliverymen. The Plaintiffs also seek court-facilitated notice for their FLSA claims. As to the FLSA Collective Action, Judge Vazquez finds that the Plaintiffs demonstrate "a modest factual showing of a factual nexus" between their work and of other deliverymen at Baumgart Cafe. The Plaintiffs establish that they both worked more than 40 hours a week and were paid approximately $350 a week. Moreover, they explain that at least two other deliverymen worked the same hours beginning in 2017 and were paid the same amount as them. They Plaintiffs further demonstrate that they know these employees' hours because they worked together every day, and learned their pay through "employee chat." This evidence is sufficient to satisfy the Plaintiffs' lenient burden to conditionally certify a class as to deliverymen. The Plaintiffs, however, still fail to establish that they are similarly situated with all nonmanagerial employees at Baumgart Cafe. As with their first motion to certify, the Plaintiffs state that the Defendants had a common policy to not pay employees overtime. In the January 30 Opinion, the Court explained that Ding could not rely solely on the conclusory statement and needed to show that other employees' FLSA rights were violated. Now, the Plaintiffs provide additional information about certain employees' compensation, but the evidence undermines their assertion of a common policy. Judge Vazquez notes that the Plaintiffs only establish that they learned what other deliverymen were paid. Without the critical information about compensation for some employees, and in light of their evidence demonstrating a substantial pay disparity with other employees, the Judge cannot determine whether all non-managerial employees were similarly situated to the Plaintiffs. Thus, because the Plaintiffs only provide evidence demonstrating that they were similarly situated to other deliverymen, he will only conditionally certify a class of Baumgart Cafe deliverymen. Turning to their request for Court facilitated notice, the Plaintiffs argue that if the Court grants their motion to certify a class for the FLSA claims, the Court should order Defendants to produce a list of all non-managerial Baumgart Cafe employees from June 10, 2015 to the present. The Plaintiffs also request that the Court orders that the Defendants provide contact information for these employees. They also contend that the opt-in period should extend to three years before the Complaint was filed, rather than two, due to the Defendants' willfulness. The Judge agrees that the allegations sufficiently allege a reckless disregard. Accordingly, he will extend the opt-in period from two to three years. However, he finds that the Plaintiffs fail to provide any further information or explanation as to how the impacted Plaintiffs' ability to vindicate their rights or otherwise amounts to an extraordinary circumstance. As a result, he will not toll the statute of limitations at this time. Lastly, because the Plaintiffs' motion is only granted for a subset of Baumgart Cafe employees, the parties are required to meet and confer regarding the proposed notice and consent form. The parties are further ordered to submit the proposed notice, with any objections, to the Court for review and approval within 30 days. As to the Rule 23 Class Action, the Plaintiffs seek to certify a Rule 23 class for the NJWHL claims. They contend that they establish commonality because the Defendants have a straightforward, centralized, uniform policy regarding the pay of employees' compensation at flat rates regardless of the hours worked. But Li and Ding's affidavits actually establish that there are large discrepancies in how much different categories of employees were paid. Thus, the Plaintiffs fail to satisfy the commonality requirement for a class of all nonmanagerial Baumgart Cafe employees, Judge Vazquez opines. The Plaintiffs' motion to certify a Rule 23 class, therefore, will be denied. For the reasons he stated, and for good cause shown, Judge Vazquez granted in part and denied in part the Plaintiffs' motion for class certification. He certified a class of deliverymen at Baumgart Cafe from June 10, 2015, to the present pursuant to 29 U.S.C. Section 216(b). The Defendants will provide a list of names and contact information for these employees to facilitate class notice. In addition to these employees' names, the Defendants must also provide the date(s) of employment; and last known contact information, including all known telephone number(s), email address(es), and last known WhatsApp, WeChat and/or Facebook username(s). To the extent the information exists in an electronic format, the Defendants will provide it in such a format. In addition, the parties are required to meet and confer regarding the proposed notice and consent form, and must submit the proposed notice, with any objections, to the Court for review and approval within 30 days. The Plaintiffs' motion is otherwise denied. An appropriate Order accompanies the Opinion. A full-text copy of the Court's Dec. 30, 2020 Opinion is available at https://tinyurl.com/y6pk4pum from Leagle.com. BEAZER HOMES: Faces Sanni Suit Over Unpaid OT for Home Counselors ----------------------------------------------------------------- ADENIKKE SANNI, individually and on behalf of all others similarly situated, Plaintiff v. BEAZER HOMES TEXAS, L.P. and BEAZER HOMES USA, INC., Defendants, Case No. 4:21-cv-00003 (S.D. Tex., January 2, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and all others similarly situated new home counselors overtime pay for all hours worked in excess of 40 hours in a workweek. The Plaintiff was employed by the Defendants as a new home counselor from approximately June 2019 to April 2020. Beazer Homes Texas, L.P. is a home construction company, with its corporate office located at 1000 Abernathy Road, Suite 1200, Atlanta, Georgia. Beazer Homes USA, Inc. is a home construction company, with its corporate office located at 1000 Abernathy Road, Suite 260, Atlanta, Georgia. [BN] The Plaintiff is represented by: Trang Q. Tran, Esq. TRAN LAW FIRM S. Gessner Road, Suite 104 Houston, TX 77063 Telephone: (713) 223-8855 E-mail: trang@tranlf.com service@tranlf.com BIG HEART: E.D. California Narrows Claims in Roper Consumer Suit ---------------------------------------------------------------- In the case, PENNIE ROPER, individually and on behalf of all others similarly situated, Plaintiff v. BIG HEART PET BRANDS, INC., Defendant, Case No. 1:19-cv-00406-DAD-BAM (E.D. Cal.), Judge Dale E. Drozd of the U.S. District Court for the Eastern District of California granted in part and denied in part the Defendant's motion to dismiss the Plaintiff's complaint. Plaintiff Roper originally filed her complaint in Stanislaus County Superior Court on Feb. 13, 2019. Therein, the Plaintiff alleges that the Defendant has labeled and advertised a series of products with the representations "All Natural." However, the Products allegedly contain non-natural, artificial, and synthetic ingredients, including sodium tripolyphosphate, synthetic vitamins and minerals, citric acid, and lactic acid. The Plaintiff asserts that she and the other consumers relied on the Defendant's natural representations when purchasing the products and would have either not purchased them or paid significantly less. At all relevant times, the Defendant made the natural representations because consumers "perceive all natural foods as better, healthier, and more wholesome." They knew what representations it made about the Products and knew what ingredients were added to them since it formulated and manufactured, or oversaw the formulation and manufacturing of, the Products and then listed all the Products' ingredients on the packaging. The Products are governed by federal regulations that control the labeling of the Products, and some of the ingredients have been federally declared to be synthetic substances. Despite being misled, the Plaintiff says she would likely repurchase the Products in the future if the Products were reformulated to be free of the allegedly unnatural ingredients. However, she will remain unable to rely on the natural representations in the future because she has no way of determining whether the Products would be free of the challenged ingredients. The Plaintiff brings the case as a class action for all California residents who purchased any of the Products for personal, or household purposes. Based upon her allegations, the Plaintiff asserts seven causes of action, including: (i) Violation of California's Consumers Legal Remedies Act ("CLRA"); (ii) Violation of California's Unfair Competition Law ("UCL"); (iii) Violation of California's False Advertising Law ("FAL"); (iv) Breach of Express Warranty; (v) Breach of Implied Warranty; (vi) Intentional Misrepresentation; and (vii) Breach of Quasi-Contract/Unjust Enrichment/Restitution under California Law. On March 29, 2019, the case was removed by the Defendant from the Stanislaus County Superior Court based on diversity jurisdiction. On April 18, 2019, the Defendant filed a motion to dismiss all of the Plaintiff's claims. On June 4, 2019, the Plaintiff filed her opposition to the motion to dismiss and the Defendant replied on July 2, 2019. On Dec. 16, 2020, the Plaintiff filed a request for leave to file supplemental authority. Judge Drozd will deny the Defendant's motion to dismiss the Plaintiff's intentional misrepresentation cause of action. He finds that the Defendant's points are potentially well taken in that it appears to be undisputed that their Products no longer bear the "All Natural" label. However, in her complaint, the Plaintiff alleges she purchased her Products in 2016, before the Defendant changed the labeling. Thus, her claims for past damages incurred remain viable. In any event, the Judge cannot consider evidence in assessing the sufficiency of a complaint under Rule 12(b)(6) and will therefore not consider the alleged label changes in ruling on the pending motion. The Judge then holds that the Plaintiff's claims for injunctive relief survive the Defendant's motion to dismiss. He finds that the Plaintiff's allegations of future harm presented in the pending complaint fit squarely into the categories recognized by the Ninth Circuit. Moreover, even if the Defendant changed its label from reading "All Natural" to "Natural," the Judge does not find at the motion to dismiss stage a sufficient basis upon which to conclude that all harmful conduct has ceased. Turning to the parties' arguments regarding the sufficiency of the Plaintiff's claims as alleged, the Judge first concludes that the Plaintiff may pursue her equitable claims for injunctive relief to the extent they are premised on alleged future harm. Because she both has standing to seek injunctive relief and has sufficiently alleged that she has no adequate remedy at law, the Defendant's motion to dismiss with respect to the Plaintiff's FAL claim will be denied. Second, because the Plaintiff here seeks only injunctive relief, the Defendant's arguments regarding the notice requirement are inapplicable. The Defendant's motion to dismiss the Plaintiff's CLRA claim will be denied. Lastly, the Judge concludes that a CLRA or FAL violation properly falls into the category of a state, federal, or local law. Accordingly, the Defendant's motion to dismiss the Plaintiff's UCL claim brought under the "unlawful" prong will be denied. Addressing the Plaintiff's intentional misrepresentation claim, the Plaintiff has alleged a cognizable breach of express warranty claim despite the label's modifying language of "added vitamins, minerals and nutrients" because she has plausibly alleged that language could be interpreted to mean only natural vitamins, minerals, and nutrients were added to the Products. Accordingly, the Defendant's motion to dismiss plaintiff's express warranty claim will also be denied. Next, because the alleged representations here are written advertisements and because the Plaintiff has stated a plausible claim for breach of express warranty, the vertical privity rule does not bar the Plaintiff's implied warranty claim, the Judge states. The Defendant's motion to dismiss the Plaintiff's implied warranty claim will, therefore, also be denied. The Judge agrees with the Defendant that Rule 8 does not allow a plaintiff invoking state law to assert an unjust enrichment claim while also alleging an express contract. A breach of an express warranty covers the same subject matter as a breach of an express contract. Because the Plaintiff may not assert a quasi-contract claim while also alleging an express warranty claim, the Judge will grant the Defendant's motion to dismiss the Plaintiff's quasi-contract restitution claim. Finally, the Plaintiff's claims for punitive damages will be dismissed with leave to amend only in connection with her intentional misrepresentation claim. The Judge holds that the Plaintiff's only potential punitive damages claims come under her intentional misrepresentation claim and her CLRA claim. First, because the Plaintiff's CLRA claim seeks only injunctive relief, any claim for punitive damages in connection with that claim is moot. Second, the Defendant correctly argues that the Plaintiff has failed to identify any officer, director, or managing agent who committed an act of oppression, fraud, or malice in the allegations of her complaint and therefore cannot seek punitive damages in connection with her intentional misrepresentation claim. For the reasons he set forth, Judge Drozd granted in part and denied in part the Defendant's motion to dismiss. The Plaintiff's seventh cause of action for breach of quasi-contract is dismissed without leave to amend. Her requests for punitive damages are stricken with leave to amend only in connection with her intentional misrepresentation claim. The action now proceeds on the Plaintiff's intentional misrepresentation, express warranty, implied warranty, CLRA, UCL, and FAL claims. Any amended complaint will be filed within 21 days from the issuance of the Order. A full-text copy of the Court's Dec. 30, 2020 Order is available at https://tinyurl.com/y3l3hgkk from Leagle.com. BLINK HOLDINGS: Can Compel Arbitration in Jampol Suit, Court Says ----------------------------------------------------------------- In the case, BRANDON JAMPOL, individually and on behalf of all others similarly situated, Plaintiff v. BLINK HOLDINGS, INC., Defendant, Case No. 20 Civ. 2760 (KPF) (S.D.N.Y.), Judge Katherine Polk Failla of the U.S. District Court for the Southern District of New York granted the Defendant's motion to compel arbitration and stayed the action. Plaintiff Jampol brings the proposed class action against Defendant Blink, a company that operates gyms under the "Blink Fitness" moniker, alleging that the Defendant improperly charged Blink gym members a full monthly membership fee for the month of March 2020 despite closing its gyms for roughly half the month due to the COVID-19 pandemic. The Plaintiff seeks redress for himself and the members of the proposed class in the form of recovery of fees paid for the time the Defendant's gyms were closed, among other claims for relief. The Plaintiff filed the initial complaint in the action, on behalf of himself and the members of the proposed class, on April 2, 2020. On May 19, 2020, the Defendant filed a letter seeking a pre-motion conference to pursue an anticipated motion to compel arbitration, or in the alternative, to dismiss the complaint. On May 22, 2020, the Plaintiff filed a letter opposing the Defendant's motion for a pre-trial conference on the grounds that he planned to file an amended complaint, and therefore the Court denied the Defendant's motion for a conference without prejudice on May 26, 2020. Thereafter, on June 3, 2020, the Plaintiff filed an amended complaint against the Defendant bringing claims for unjust enrichment, money had and received, conversion, breach of contract, and violation of New York General Business Law Section 349. On June 17, 2020, the Defendant filed a second letter seeking a pre-motion conference to pursue a motion to compel arbitration, which motion the Plaintiff opposed on June 22, 2020. The next day, the Court denied the Defendant's request for a pre-motion conference and instead set a briefing schedule for the Defendant's anticipated motion to compel arbitration, or in the alternative, to dismiss. On July 24, 2020, the Defendant filed the instant motion, pursuant to the Federal Arbitration Act, to compel arbitration of the Plaintiff's claims and to stay the case pending the outcome of that arbitration, or in the alternative, to dismiss the Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), along with a supporting memorandum and several declarations. It argues that these claims are governed by Blink Fitness' Terms of Use, which contains a broad arbitration provision. The Plaintiff filed his opposition papers on Aug. 24, 2020, arguing his claims are not covered by the Terms of Use. The motion became fully briefed and ripe for review when the Defendant filed its reply papers on Sept. 14, 2020. The parties do not dispute that the Plaintiff assented to the Terms of Use, and that it is a valid, binding agreement. Judge Failla, therefore, focuses her analysis on the core area of disagreement between the parties--namely, whether the Plaintiff's claims are within the scope of the Arbitration Agreement. The Defendant argues that the broad language of the Arbitration Agreement clearly covers the Plaintiff's claims. The Plaintiff does not dispute that the language in the Arbitration Agreement is broad, nor that--as read--it encompasses the claims asserted. Rather, he relies solely on the argument that the Terms of Use does not apply because the Membership Agreement displaces it. The Judge holds that the Terms of Use's Arbitration Agreement applies to the Plaintiff's claims. The Plaintiff is correct that his claims are covered by the Membership Agreement. However, he is incorrect when he concludes that his claims, therefore, cannot be covered by the Arbitration Agreement as well. The Arbitration Agreement has extremely broad language, stating that any dispute, claim, or controversy regarding any aspect of relationship with the Defendant, will be resolved exclusively and finally by binding arbitration. And that wording is similar to other arbitration clauses that the Second Circuit has called "classically broad." Standing alone, such a broad clause compels arbitration. Nor does the Membership Agreement's lack of an arbitration provision vitiate the Arbitration Agreement, the Judge finds. The Court easily concludes that the Arbitration Agreement in the Terms of Use remained in full force and effect, despite the subsequent (though virtually simultaneous) execution of the Membership Agreement. Furthermore, nothing in the Membership Agreement "specifically precludes" the application of the arbitration clause. The circumstances surrounding the Plaintiff's signing of the Membership Agreement confirm that it was not meant to "specifically preclude" application of the Arbitration Agreement. Finally, the Plaintiff argues that the Membership Agreement should be read to displace the Terms of Use and its broad arbitration provision because the Membership Agreement contains a merger clause. However, the Judge opines that the merger clause states only that the Membership Agreement "constitutes the entire agreement and understanding between the Parties relating to the subject matter thereto and supersedes any oral or other written understanding." But the "subject matter" in the Membership Agreement is distinct from that of either the Terms of Use and/or Arbitration Agreement, and thus the merger clause cannot be read to supersede those agreements on its own terms. For the reasons stated in her Opinion, Judge Failla granted the Defendant's motion to compel arbitration. The Clerk of Court is ordered to terminate the motion at docket entry 17 and to stay the case. The parties are ordered to update the Court by April 29, 2021, regarding the status of any arbitration. A full-text copy of the Court's Dec. 30, 2020 Opinion & Order is available at https://tinyurl.com/y4gtyye3 from Leagle.com. BRE ICONIC GWR: McCauley Files Suit in Maryland ----------------------------------------------- A class action lawsuit has been filed against Bre Iconic GWR Owner LLC in Maryland Circuit Court on Dec. 29, 2020. The case is styled as Kathleen McCauley, in behalf of all those similarly situated, Plaintiff v. Bre Iconic GWR Owner LLC and Grand Wailea Resort Hotel & Spa, Defendants, Case No. 484393V. The docket of the case states the nature of suit as contract. Bre Iconic GWR Owner LLC is located in Wailea, HI, United States and is part of the Hotels, Motels & Resorts Industry.[BN] The Plaintiff appears PRO SE. BUILDING YOUR DREAM: Fails to Pay Proper Wages, Tarax Suit Claims ----------------------------------------------------------------- FELIPE ARMANDO ARGUETA TARAX; LUIS ARGUETA TARAX; and EDGAR DAVID ARGUETA TARAX, individually and on behalf of all others similarly situated, Plaintiffs v. BUILDING YOUR DREAM INC. (D/B/A BUILDING YOUR DREAM INC.); and ANTONIO DASILVA FILHO (A.K.A. ANTHONY), Defendants, Case No. 7:21-cv-00008 (S.D.N.Y., Jan. 4, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as construction workers. BUILDING YOUR DREAM INC. own, operate, or control a construction company, located at New Rochelle, NY 10801 under the name "Building Your Dream Inc.". [BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, New York 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 C&W FACILITY: Quezada Labor Class Suit Removed to N.D. California ----------------------------------------------------------------- The case styled JORGE RUIZ QUEZADA, an individual, on behalf of himself and on behalf of all others similarly situated v. C&W FACILITY SERVICES INC. and DOES 1 to 50, inclusive, Case No. 20CV373449, was removed from the Superior Court of the State of California for the County of Santa Clara to the U.S. District Court for the Northern District of California on December 31, 2020. The Clerk of Court for the Northern District of California assigned Case No. 5:20-cv-09480 to the proceeding. The case arises from the Defendant's alleged violations of the California Labor Code and the California's Unfair Competition Law including failure to pay all minimum wages, failure to pay all overtime wages, failure to provide rest periods and pay missed rest period premiums, failure to provide meal periods and pay missed meal period premiums, failure to pay wages timely during employment, failure to pay all wages earned and unpaid at separation, failure to indemnify all necessary business expenditures, and failure to furnish accurate itemized wage statements. C&W Facility Services Inc. is a facility services provider with its principal place of business in Massachusetts. [BN] The Defendant is represented by: Justin M. Curley, Esq. Ryan McCoy, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: jcurley@seyfarth.com rmccoy@seyfarth.com CASCADE PROCESS: Griffiths Sues Over Field Technicians' Unpaid OT ----------------------------------------------------------------- The case, MEGAN GRIFFITHS, on behalf of herself and all others similarly situated, Plaintiff v. CASCADE PROCESS CONTROLS, LTD., Defendant, Case No. 5:20-cv-01464 (W.D. Tex., December 28, 2020) arises from the Defendant's alleged violations of the Fair Labor Standards Act for failing to pay overtime premiums to its employees. The Plaintiff asserts that throughout her employment with the Defendant, she consistently worked more than 40 hours per workweek, but she never received overtime premiums for any hours worked over 40 per workweek. The Defendant allegedly failed and refused to pay the Plaintiff at a rate not less than one and one-half times her regular rates of pay for all hours worked in excess of 40 in a workweek. The Plaintiff was employed by the Defendant as an hourly-paid field technician. The Plaintiff brings this complaint as a collective action seeking to recover all unpaid back wages and liquidated damages equal in amount to the unpaid compensation, attorneys' fees and costs, pre- and post-judgment interest, and declaratory and injunctive relief to prevent the Defendant for further violations. Cascade Process Controls, Ltd. provides turn-key construction and electrical and instrumentation services to the oil and gas industry throughout the State of Texas and Canada. [BN] The Plaintiff is represented by: Douglas B. Welmaker, Esq. MORELAND VERRETT, P.C. 700 West Summit Dr. Wimberley, TX 786-0567 Tel: (512) 782-0567 Fax: (512) 782-0605 E-mail: doug@morelandlaw.com CD PROJEKT: Faces Multiples Class Actions Over Cyberpunk Launch --------------------------------------------------------------- Adam Adler, writing for Escapist Magazine, reports that you may have heard that Cyberpunk 2077 has been having some problems. Following a notoriously delayed launch, the game debuted to countless bugs, embarrassing performance issues, and a PR debacle that led to the game's removal from the online PlayStation Store. But those problems were just the beginning, as the game's developer, CD Projekt Red (CDPR), is now the subject of multiple class action lawsuits involving the game's botched launch. But what are the lawsuits really about? And are they likely to succeed? The Short Version of the CD Projekt Class Action Lawsuits The lawsuit is about fraud. The plaintiffs allege that CD Projekt lied to its investors about the state of the game. I don't think it's likely to succeed, since they would essentially have to prove that CD Projekt knew the game's launch would be disastrous, which is a high bar. Now, the Long Version Even though the case relates to Cyberpunk 2077, it's not really about video games -- the suits against CD Projekt are not brought by jaded gamers, and they do not allege false advertising as to Cyberpunk 2077 itself. Instead, the lawsuit is a classic example of securities fraud. CD Projekt is based in Poland, but it is a publicly traded company and its shares are offered for sale in the United States. The basic claim asserted in the lawsuit is that CD Projekt and its executives defrauded their investors by lying about the state of Cyberpunk 2077 and failing to disclose that the game's launch would be a disaster. The theory is that, by overstating the quality of the game and failing to disclose the performance issues, the defendants artificially increased demand -- and thus increased the price -- for CD Projekt stock. Once the truth came out, the stock price plummeted, resulting in loss to each of the defrauded investors. CD Projekt class action lawsuit Cyberpunk 2077 CD Projekt Red CDPR law legality Poland stock investors United States The challenge with this kind of suit is that it is not enough for the plaintiffs to prove that CDPR botched the launch or even that CD Projekt's statements were false. In order to prevail, the plaintiffs would have to prove that CD Projekt made false or misleading statements, that it knew the statements were false or misleading at the time they were made, and that its statements caused the company to be overvalued. As a simple made-up example, suppose that (1) on the day before Cyberpunk 2077 was set to launch, the CEO of CD Projekt received a report showing that the game was virtually unplayable on all consoles; (2) the CEO then held an investor meeting and said something like, "Cyberpunk 2077 runs at a solid 60 frames per second on all consoles, and our QA team has not identified any bugs in the current build," and (3) the CEO's statements resulted in an immediate 30% increase in stock price. In that scenario, CD Projekt investors would have a strong claim for market fraud, as the CEO made a knowingly false statement that artificially increased the price of CD Projekt shares, which resulted in investor losses when his deception was realized. The actual facts are not nearly as favorable to the plaintiffs. The purportedly false or misleading statements are set out on pages 5-8 of the complaint and are not particularly beneficial to the plaintiffs. For example, the complaint claims that CD Projekt lied to investors when it announced -- in January 2020 -- that the game's launch would be pushed back to September because the company "needed more time to finish playtesting, fixing and polishing." The purportedly misleading statement is that CD Projekt stated the game was "complete and playable." But viewed in context, that statement is not false or misleading. From a developer's perspective, to say a game is "playable" simply means that the game can be played. And to say a game is "complete" means, in essence, that the first draft is done. But no one reading that statement would view it as an endorsement of the game's quality -- after all, the purpose of the announcement was to say that the game would not be ready on schedule. Let's look at some of the statements that were made on Nov. 25, 2020 -- closer to the game's launch. The purportedly false or misleading statements are as follows: "Positive impressions on the part of journalists, and in particular their remarks which underscore the complexity and amazing ambience of Night City make us very happy and confirm the remarkable potential of Cyberpunk." "(W)e believe that the game is performing great on every platform." "So, in terms of bugs, we are all aware of them. Of course, such a big game can't be just bug free. That's kind of obvious, but we believe that the level will be as low as to let gamers not see them. . . . many of them are already fixed." The first statement can hardly be considered false or misleading -- journalists did make positive remarks about Cyberpunk 2077 in the runup to its launch, and the statement itself spoke more to CD Projekt's subjective happiness. The other statements are obviously more problematic. But even those statements can't fairly be viewed as false or misleading. For one thing, the statements reflect the speaker's (CD Projekt's CEO) subjective views of the game's performance and were not presented as an objective truth. More importantly, the statement was made over two weeks before the game's launch, meaning that CDPR may have concluded that it still had time to fix the game's most egregious bugs. To highlight the nuance, there is a big difference between, "(Given that we're two weeks from launch) we believe that the game is performing great," and, "We believe that the game is performing great on every platform (and is even ready to launch)." Lastly, and perhaps most significantly, the very next sentence -- which is not quoted in the complaint -- states that "not every platform should be great," signaling that performance would be much worse on the older consoles. The final statement also does not seem particularly misleading. To the contrary, it acknowledges the bugs and expresses a forward-facing subjective belief that significant bugs would be fixed before the game's launch. Once again, that statement -- viewed by itself -- cannot fairly be characterized as objectively false or misleading. In sum, the claim of investor fraud seems fairly weak. Setting aside the lack of deceptive statements, the fact remains that CD Projekt and its CDPR developers have a compelling counter-narrative: They screwed up. They underestimated the quantity and significance of the bugs, thought that they would be able to adequately address the bugs in the weeks before launch, and were optimistic that they could address the remaining issues through post-launch support. The complaint itself acknowledges -- and actually bolsters -- this counter-narrative, and it includes a post-launch quote from the CEO stating that CD Projekt "underestimated the scale and complexity of issues." This counter-narrative is also much more plausible. It seems pretty unlikely that CD Projekt would have gone ahead with the launch if it knew the game were broken and if it knew that the game would be taken off the PlayStation Store. In this regard, their actions are consistent with their words: They screwed up, but they didn't lie. And that should be enough to defeat these class actions. [GN] COMFORT ALL-STARS: Strickland Sues Over Unpaid OT for Laborers -------------------------------------------------------------- STANLEY STRICKLAND, individually and on behalf of all others similarly situated, Plaintiff v. COMFORT ALL-STARS, INC., Defendant, Case No. 8:20-cv-03120 (M.D. Fla., December 31, 2020) is a class action against the Defendant for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and all others similarly situated manual laborers overtime pay for all hours worked in excess of 40 hours in a workweek. The Plaintiff was employed by the Defendant as a manual laborer in Hillsborough County, Florida from approximately June 1, 2020 until approximately November 27, 2020. Comfort All-Stars, Inc. is a domestic, for-profit air conditioning enterprise, headquartered in Hillsborough County, Florida. [BN] The Plaintiff is represented by: Kyle J. Lee, Esq. LEE LAW, PLLC 1971 West Lumsden Road, Suite 303 Brandon, FL 33511 Telephone: (813) 343‐2813 E-mail: Kyle@KyleLeeLaw.com CORRECTIONS CORP: February 4 Class Action Opt-Out Deadline Set -------------------------------------------------------------- The following statement is being issued by Robbins Geller Rudman & Dowd LLP regarding the Notice of Pendency of Class Action against Corrections Corporation of America: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NIKKI BOLLINGER GRAE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. CORRECTIONS CORPORATION OF AMERICA, et al., Defendants. Civil Action No. 3:16-cv-02267 Honorable Aleta A. Trauger SUMMARY NOTICE OF PENDENCY OF CLASS ACTION TO: ALL PERSONS WHO PURCHASED OR ACQUIRED CORRECTIONS CORPORATION OF AMERICA/CORECIVIC, INC. SECURITIES BETWEEN FEBRUARY 27, 2012 AND AUGUST 17, 2016, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an order of the United States District Court for the Middle District of Tennessee (referred to as the "District Court"), that you may be a member of a class action pending in the District Court. The lawsuit captioned Grae v. Corrections Corporation of America, et al., Case No. 3:16-cv-02267, has been certified by the District Court as a class action; and Amalgamated Bank, as Trustee for the LongView Collective Investment Fund, was appointed as representative for the Class. At this time, Class Members are not required to take any action to remain in the Class. If any benefits are eventually obtained for the Class as a result of this lawsuit, eligible Class Members may be entitled to a payment. Class Members may choose to exclude themselves from the Class. If you exclude yourself, you will not be entitled to a payment if any benefits are eventually obtained for the Class. If you do not exclude yourself, you will be bound by any judgment in this litigation, whether favorable or unfavorable. To remain a Class Member and eligible for a payment if any benefits are eventually obtained, you are not required to do anything at this time. To request exclusion, you must submit a request in writing that contains the information described in more detail in the full Notice of Pendency of Class Action that is available at www.CoreCivicSecuritiesLitigation.com or can be obtained by calling (866) 779-6819. The deadline to exclude yourself is February 4, 2021. For a full description of the litigation, including identification of the Lead Plaintiff, Defendants, Class Counsel and the allegations of securities fraud, as well as related Court documents, please visit: www.CoreCivicSecuritiesLitigation.com Contacts Robbins Geller Rudman & Dowd LLP Shareholder Relations Rick Nelson 1-619-231-1058 [GN] CORREVIO PHARMA: May 14 Settlement Fairness Hearing Set ------------------------------------------------------- The Rosen Law Firm, P.A. on Jan. 4 disclosed that the United States District Court for the Southern District of New York has approved the following announcement of a proposed class action settlement that would benefit purchasers of Correvio Pharma Corp. common stock (NASDAQ: CORV): SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who purchased shares of Correvio Pharma Corp. ("Correvio") common stock ("Correvio Securities") during the period between September 5, 2018 and December 10, 2019, inclusive (the "Settlement Class") and were damaged thereby: Please read this notice carefully; your rights will be affected by a class action lawsuit pending in this court. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $1,750,000 in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on May 14, 2021, at 2:30 p.m., before the Honorable Valerie E. Caproni at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, Courtroom 443, 40 Foley Square, New York, New York 10007, call in number 1-888-363-4749; access code 3121171, and security code 1361, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement, dated September 3, 2020 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. The Notice and Proof of Claim and Release form ("Claim Form") can be downloaded from the website maintained by the Claims Administrator, www.strategicclaims.net. You may also obtain copies of the Notice and Claim Form by contacting the Claims Administrator at In re Correvio Class Action Litigation, c/o Strategic Claims Services, P.O. Box 230, 600 N. Jackson St., Suite 205, Media, PA 19063; Toll-Free: (866) 274-4004; Fax: (610) 565-7985; info@strategicclaims.net. If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form to the Claims Administrator postmarked no later than April 20, 2021. If you are a Settlement Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion to the Claims Administrator such that it is received no later than April 23, 2021, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to Lead Counsel and Defendants' Counsel such that they are received no later than April 23, 2021, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, Correvio, or its counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: THE ROSEN LAW FIRM, P.A. Laurence Rosen, Esq. 275 Madison Avenue, 40th Floor New York, New York 10016 Tel: (212) 686-1060 info@rosenlegal.com Requests for the Notice and Claim Form should be made to: In re Correvio Class Action Litigation c/o Strategic Claims Services P.O. Box 230 600 N. Jackson St., Suite 205 Media, PA 19063 Toll-Free: (866) 274-4004 info@strategicclaims.net By Order of the Court [GN] DALLAS COUNTY, TX: Fifth Circuit Affirms Prelim Injunction in Daves ------------------------------------------------------------------- The U.S. Court of Appeals for the Fifth Circuit affirms the district court's judgment granting preliminary injunction in the lawsuit titled SHANNON DAVES; SHAKENA WALSTON; ERRIYAH BANKS; DESTINEE TOVAR; PATROBA MICHIEKA; JAMES THOMPSON, on behalf of themselves and all others similarly situated; FAITH IN TEXAS; TEXAS ORGANIZING PROJECT EDUCATION FUND, Plaintiffs-Appellants Cross-Appellees v. DALLAS COUNTY, TEXAS; ERNEST WHITE, 194th; HECTOR GARZA, 195th; RAQUEL JONES, 203rd; TAMMY KEMP, 204th; JENNIFER BENNETT, 265th; AMBER GIVENS-DAVIS, 282nd; LELA MAYS, 283rd; STEPHANIE MITCHELL, 291st; BRANDON BIRMINGHAM, 292nd; TRACY HOLMES, 363rd; TINA YOO CLINTON, Number 1; NANCY KENNEDY, Number 2; GRACIE LEWIS, Number 3; DOMINIQUE COLLINS, Number 4; CARTER THOMPSON, Number 5; JEANINE HOWARD, Number 6; CHIKA ANYIAM, Number 7, Judges of Dallas County, Criminal District Courts, Defendants-Appellees Cross-Appellants, MARIAN BROWN; TERRIE McVEA; LISA BRONCHETTI; STEVEN AUTRY; ANTHONY RANDALL; JANET LUSK; HAL TURLEY, Dallas County Magistrates; DAN PATTERSON, Number 1; JULIA HAYES, Number 2; DOUG SKEMP, Number 3; NANCY MULDER, Number 4; LISA GREEN, Number 5; ANGELA KING, Number 6; ELIZABETH CROWDER, Number 7; CARMEN WHITE, Number 8; PEGGY HOFFMAN, Number 9; ROBERTO CANAS, JR., Number 10; SHEQUITTA KELLY, Number 11 Judges of Dallas County, Criminal Courts at Law, Defendants-Appellees, Case No. 18-11368 (5th Cir.). The matter is an interlocutory appeal from a preliminary injunction and related orders entered in a lawsuit brought under Section 1983 of the Constitution. The claim is that state judges in Dallas, Texas, are unconstitutionally denying release to indigent arrestees, who cannot pay the prescribed cash bail. The district court certified the suit as a class action and allowed three different categories of judges to be defendants. It court determined that the Sheriff was not a proper defendant for Section 1983 purposes but did not yet dismiss her from the case. It held there was a likelihood of success by the Plaintiffs on their equal-protection and procedural-due-process claims and granted injunctive relief against the judges and the County. With one exception, the Appellate Court agrees with the district court that the Plaintiffs have standing. It holds that the suit was properly allowed to proceed against most of the judges and the County. As for the Criminal District Court Judges, though, the Appellate Court holds that they are not proper defendants because the Plaintiffs lack standing as to them and cannot overcome sovereign immunity. The Appellate Court also disagrees with the district court and holds that the Sheriff can be enjoined to prevent that official's enforcement of measures violative of federal law. Finally, it was correct to conclude that the Plaintiffs need not first pursue habeas corpus relief. Hence, the Appellate Court affirms the injunction -- with one revision -- and remands for further proceedings. Discussion At the time of the briefing, Defendant Dallas County asserted that the Plaintiffs' counsel had brought more than a dozen cases in different states challenging the requirement of money bail for indigent arrestees. Among these were five active cases in Texas: the instant one in Dallas County, one in Galveston County, and three in Harris County. A Harris County case resulted in three Fifth Circuit opinions that are significant to the appeal. The lawsuit was filed on Jan. 21, 2018, in the U.S. District Court for the Northern District of Texas. An amended complaint was filed a little more than a week later. The Plaintiffs include six indigent individuals, who were arrested from Jan. 17 to 19, 2018, and had allegedly been kept in jail in Dallas County because they could not afford to pay the required cash bail. The appellate record shows that those arrested for criminal offenses in Dallas County are taken for an initial hearing before Dallas County Criminal District Court Magistrate Judges. At that hearing, a Magistrate Judge sets bail and considers whether to release the arrestee on a secured or unsecured bond. Seven Magistrate Judges are defendants; an affidavit states there are twenty in the county. Additional Defendants include Dallas County and its Sheriff, Marian Brown. Also sued are 17 Dallas County Criminal District Court Judges ("District Court Judges"), who handle felony offenses, and 11 judges of the Dallas County Criminal Courts at Law ("County Court Judges"), with jurisdiction over misdemeanor offenses. The District Court Judges appoint all the Magistrate Judges. The district court's judgment has generated an appeal, three cross-appeals, and a jurisdictional issue raised late in a letter to the court. Combining where it can, the Appellate Court discusses the issues in the order, which appears to be a logical sequencing: I. Do the Plaintiffs have standing generally? II. Should the court either abstain or first require the Plaintiffs to exhaust state-court remedies? III. Are the District Court Judges proper defendants? IV. Is Dallas County a proper defendant? V. Is the Sheriff a proper defendant? VI. What relief, if any, should be granted to the Plaintiffs? Both District Court and County Court Judges established a schedule for Magistrate Judges to use in deciding the amount of bail needed to release arrestees. The schedules were contained in broader guidelines for these proceedings. They suggest specific bail amounts for corresponding offenses. Further, in February 2018, the month after the suit was filed, the District Court Judges directed the Magistrate Judges to take an arrestee's ability to pay into consideration when setting bail, based on financial affidavits arrestees can fill out prior to the hearing. Nevertheless, the district court here found that the Magistrate Judges routinely treat these schedules as binding when determining bail. The district court issued an opinion and injunction on Sept. 20, 2018. It found that the directive to Magistrate Judges to take financial affidavits into account made no noticeable difference in the practices for setting terms of release. Indigent arrestees, who could not pay the bail amount suggested in the schedule and who did not plead guilty, were "taken back to the Dallas County Jail" and "kept in a jail cell until their next appearance," usually "weeks or months" later. The district court found "a clear showing of routine wealth based detention." It also found "a clear showing this detention violates procedural due process and equal protection rights." It concluded that the Fifth Circuit decision as to Harris County had already indicated the appropriate injunctive relief for such violations, and accordingly the court imposed in the present case the model injunction suggested in one of those earlier opinions. On the issue whether the Plaintiffs have standing to bring suit over bail policies, Judge Southwick notes that Article III standing is a jurisdictional requirement. Though the Plaintiffs were subjected to the claimed unconstitutional bail requirement before they filed the original complaint, they were still in detention at the time the complaint was filed and were being subjected to "continuing, present adverse effects." Accordingly, with one exception regarding the District Court Judges, the Plaintiffs' complaint at the time of filing satisfied the redressability and injury-in-fact requirements, Judge Southwick states. The District Court Judges, in their cross-appeal, say the district court should have dismissed the Plaintiffs' suit because it was necessary for them to pursue the state habeas corpus remedy prior to bringing this suit. Those judges rely first on Preiser v. Rodriguez, 411 U.S. 475 (1973). The Appellate Court concludes that the declaratory judgment and the injunction that were granted do not present a Preiser issue. The relief of a more robust hearing would not necessarily lead to "immediate release from that confinement or the shortening of its duration." Requiring that a judicial officer consider whether the detainee can afford money bail and, if not, whether there is some option for release short of money bail that would protect the County's legitimate interests does not short circuit state habeas procedures. Another issue is whether the Plaintiffs properly can seek to enjoin the District Court Judges in their official capacity if the Plaintiffs' claims against them fail to meet the causal-connection and redressability elements for the existence of a case or controversy, citing such caselaw as Lujan v. Defenders of Wildlife, 504 U.S. at 560-61. The Panel concludes that state District Court Judges act for the State when acting on bail. The district court in the case, at least for purposes of Section 1983 and not sovereign immunity, held that these judges were county officers. With respect, the District Courts are not county courts, and their judges are not county officers when acting regarding bail, Judge Southwick opines. The Appellate Court also concludes that because the District Court Judges are state officers, so are the Magistrate Judges that the District Court Judges appoint and to whom they provide guidance such as with the bail schedule. Notwithstanding these conclusions, victory or defeat for the District Court Judges on the issue of their amenability to suit cannot yet be declared, Judge Southwick says. Because this part of the suit is against state judges in their official capacity, it is in effect a suit against the State of Texas itself. A high hurdle now looms for the Plaintiffs. In sum, the Appellate Court's precedents show, on one end of the spectrum, that a concrete statutory duty to enforce the challenged law will invoke the Ex parte Young exception to sovereign immunity. On the other end, the Ex parte Young exception will not apply to a defendant who has neither "some connection" nor a "special relationship" to the enforcement of the challenged law. The Panel concludes that the District Court Judges lack a sufficient connection to the enforcement of the felony bail schedules. The District Court Judges promulgated the bail schedule used to set bail for felony arrestees. That alone is not enough to satisfy Ex parte Young's requirements. As a result, the Plaintiffs have neither standing to sue the District Court Judges nor the ability to show a sufficient connection between the District Court Judges and enforcement of the felony bail schedule sufficient to satisfy Ex parte Young. The Appellate Court's principles of standing and the Eleventh Amendment, therefore, bar suit against the District Court Judges. Regardless of any argument that County Court Judges, like the District Court Judges, should be considered part of the state judicial system, the Appellate Court does not see a distinction between the judges for the Dallas County Court and those for the Harris County Criminal Court in ODonnell that would justify the Appellate Court's reaching a different conclusion. Judge Southwick also opines that suit against the Criminal District Court Judges is barred by sovereign immunity because they are officials of the State of Texas and the Ex parte Young exception does not apply, and also because the Plaintiffs lack standing as to them. The Sheriff can be enjoined to prevent that officer's enforcement of measures violative of federal law, regardless of whether the sheriff is a proper defendant for municipal liability purposes under Section 1983. So may the Magistrate Judges. The Appellate Court affirms the injunction except for any application to the District Court Judges and for its articulation of the Sheriff's responsibilities as to bail orders. It remands for further proceedings consistent with its opinion. A full-text copy of the Court's Opinion dated Dec. 28, 2020, is available at https://tinyurl.com/ybnfuemh from Leagle.com. DIGITAL MEDIA: Sends Unsolicited Text Messages, Hooper Suit Claims ------------------------------------------------------------------ GRAHAM HOOPER, individually and on behalf of all others similarly situated, Plaintiff v. DIGITAL MEDIA SOLUTIONS, LLC, Defendant, Case No. 21-000003-CI (Fla. Cir., 16th Jud. Ct., Pinellas Cty., January 1, 2021) is a class action against the Defendant for violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant sent text messages to the Plaintiff's cellular telephone numbers using an automatic telephone dialing system in an attempt to promote various lending services without prior express written consent. The Defendant's unsolicited text messages caused the Plaintiff harm, including invasion of his privacy and annoyance. Digital Media Solutions, LLC is a company that provides digital marketing solutions, headquartered in Clearwater, Florida. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com EPPING GARDENS: Co-Owner Fleds to Greece Amid Class Action ---------------------------------------------------------- Neos Kosmos reports that Greek Australian co-owner of Epping Gardens aged care home, which is under investigation over a major class action following the deaths 38 residents from Coronavirus, has fled to Greece, according to The Sunday Age. Peter Arvanitis and his wife Areti reportedly left Melbourne two weeks before Christmas after receiving a travel exemption from the Australian Department of Home Affairs to attend to "essential business" in Athens. The backlash over poor conditions at Epping Gardens where 103 residents tested positive to COVID-19 and 86 staff got infected has been overwhelming. The news of the Arvanitis' departure has infuriated grieving relatives and affected staff even further. "[Mr Arvanitis] has never taken any responsibility or shown any compassion. We want him to come back to Melbourne and face up to the families who have been destroyed by this," Sam Agnello, who is lead plaintiff in a class action involving Heritage Care, said to The Sunday Age. Mr Angelo's mother was a resident that died of Covid-19. "[I am] unsure of my return date, depending on business progress here and of course requirements of international travellers returning home. The plan is to be home sooner rather than later," Mr Arvanitis told The Sunday Age. What is even more baffling is that the couple did not notify any business associates of their departure. "I did not inform Greg Reeve as my personal business has nothing to do with Heritage Care. I do not have an executive or board role in Heritage Care, and my investment is passive. My private business has nothing to do with any employee of Heritage Care," Mr Arvanitis explained to The Sunday Age. Mr Arvanitis and business partner Tony Antonopoulos each own a 50 per cent stake in Heritage Care Pty Ltd, which has a portfolio of 10 aged care homes in both Sydney and Melbourne, including Epping Gardens. As The Sunday Age reports, Heritage Care chief executive Greg Reeve was unaware of Mr Arvanitis' departure, however, the Greek Australian mogul did resign from his role as director during the turmoil back in September. Meanwhile, the multimillionaire's mansion on Irving Road has been listed for sale privately. The property could be sold for up to $40 million. On that note, Mr Arvanitis told the news outlet: "Although I am not actively looking to sell, everything has a price and only for a significant premium. If I was to sell, I have several properties in Toorak and interstate I could move into. My history in real estate demonstrates this as I have sold over 60 properties in the last five years." While the Arvanitis couple escapes to Greece, the deadly outbreak at Epping Gardens remains under investigation by WorkSafe and the State Coroner, in collaboration with Police. The facility will also be reassessed to determine whether or not it is still fit to hold accreditation as an aged care facility. Finally, Greek Community members are also questioning the Arvanitis' decision to leave the country: "We also need to know on what grounds Mr Morrison's government allowed them to leave Australia when they were facing court and during the alleged border closures. Indeed, separately, HOW many have been granted exemptions Mr Morrison and why? But as to this couple, Mr Morrison should personally phone the Hellenic PM and ask him to send them back," Ange T Kenos wrote on Twitter. [GN] EQUITY TRUST: Order to Produce Documents in Jacobs Suit Reversed ---------------------------------------------------------------- In the lawsuit styled WILLIE JACOBS, et al., Appellees v. EQUITY TRUST COMPANY, et al., Appellants, Case No. 20CA011621 (Ohio App.), the Court of Appeals of Ohio, Ninth District, Lorain County, reverses an order for the production of certain documents. The Appellants, Equity Trust, Equity Administrative Services, Inc., Jeffrey Desich, and Richard Desich, Sr., appeal an interlocutory order of the Lorain County Court of Common Pleas ordering the production of certain documents to the Appellees, Willie Jacobs, Elias Zachos, and Gerald Watts. Jacobs, Elias Zachos, and Gerald Watts filed a putative class action lawsuit against the Equity Defendants alleging claims related to investment losses in their self-directed individual retirement accounts. One of the allegations asserted by the Plaintiffs involves Equity Trust failing to disclose and charging fees on customers' uninvested cash in their accounts in contravention of the Custodial Account Agreement. Equity Trust modified the Agreement in July 2011, and the Plaintiffs sought discovery regarding the revision of the Agreement. After having received 6,600 documents, the Plaintiffs filed a motion for an in camera inspection of approximately 1,260 documents that the Equity Defendants withheld on various grounds of privilege. After a status conference and further independent discussions between counsel, the number of disputed documents was eventually reduced to 225 documents. Relative to the appeal, the Equity Defendants submitted 50 of the 225 disputed documents for an in camera inspection. These 50 documents were organized in a binder under 40 tabbed sections and consisted of redacted emails and attached drafts of the Agreement that were exchanged internally between employees of Equity Trust and with legal counsel during June and July 2011 related to the revision of the Agreement. Along with the binder, the Equity Defendants filed two affidavits by Michael Dea, the CEO of Equity Trust, and their billing statements from Ulmer & Berne, LLP, as evidentiary support that the 50 documents were protected by attorney-client privilege. Following an in camera review, the trial court ordered the Equity Defendants to produce the documents contained within 31 of the 40 tabs. The Equity Defendants timely appeal asserting one assignment of error. They assert that the trial court erred when it ordered them to produce documents to the Plaintiffs that are protected by attorney-client privilege. The Appellate Court agrees. Generally, it states, it applies an abuse of discretion standard when reviewing discovery orders, citing Teodecki v. Litchfield Twp., 9th Dist. Medina No. 14CA0035-M, 2015-Ohio-2309, quoting Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333. However, when the information sought in discovery is alleged to be confidential and privileged, it is a question of law that is reviewed de novo, says Judge Lynne S. Callahan, writing for the Panel. Because the discovery issue raised by the Equity Defendants involves whether the redacted emails and draft revisions of the Agreement are protected by the attorney-client privilege, the Panel reviews the matter de novo. In the matter, the Equity Defendants have asserted the attorney-client privilege to 1) redacted emails and the attached draft revisions of the Agreement exchanged between employees of Equity Trust, 2) draft revisions of the Agreement that were attached to emails between outside counsel and Equity Trust employees, and 3) draft revisions of the Agreement that were attached to emails between Equity Trust employees. The Plaintiffs argue that the Equity Defendants have failed to show that the employees of Equity Trust were aware that the dominant purpose of the communications was legal advice. Also, they argue that the drafts created by Equity Trust were sent to counsel solely to avoid disclosure. Lastly, the Plaintiffs argue that the attorney-client privilege does not apply to the redacted emails and the draft revisions of the Agreement because they do not reflect legal advice, but rather business decisions. Judge Callahan opines that when the dominant purpose of the communication is a business decision and not legal advice, then "the communication cannot be insulated from discovery just by sending a copy of it to a lawyer." If the predominant purpose is legal advice, then all parts of the communication, including the non-legal portions, are protected by the attorney-client privilege. As a result of the Appellate Court's independent review, the Panel concludes that Tabs 1, 2, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 38, 39, and 40 are privileged attorney-client communications. Accordingly, the trial court erred when it ordered the Equity Defendants to produce these documents to the Plaintiffs. The Equity Defendants' sole assignment of error is sustained. The interlocutory order of the Lorain County Court of Common Pleas ordering the Equity Defendants to produce the documents to the Plaintiffs is reversed. Judge Callahan finds that there were reasonable grounds for this appeal. The Appellate Court orders that a special mandate issue out of the Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry the judgment into execution. A certified copy of the journal entry will constitute the mandate, pursuant to App.R. 27. Immediately upon the filing thereof, the document will constitute the journal entry of judgment, and it will be file stamped by the Clerk of the Court of Appeals at which time the period for review will begin to run. The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to the Appellees. A full-text copy of the Court's Decision and Journal Entry dated Dec. 28, 2020, is available at https://tinyurl.com/y7kbvuan from Leagle.com. Thomas R. Lucchesi -- tlucchesi@bakerlaw.com -- Brett A. Wall -- bwall@bakerlaw.com -- James H. Rollinson -- jrollinson@bakerlaw.com -- and David F. Proano -- dproano@bakerlaw.com -- Baker & Hostetler LLP, for Appellants. Stuart E. Scott -- Sscott@spanglaw.com -- Dennis R. Lansdowne -- Dlansdowne@spanglaw.com -- Nicholas A. Dicello -- NDiCello@spanglaw.com -- and Kevin C. Hulick, Spangenberg Shibley & Liber LLP, for Appellees. EVERGREEN PACKAGING: Underpays Production Workers, Carreno Claims ----------------------------------------------------------------- RICHARD CARRENO, individually and on behalf of all others similarly situated, Plaintiff v. EVERGREEN PACKAGING, LLC, Defendant, Case No. 4:20-cv-01502-KGB (E.D. Ark., December 29 2020) is a collective action complaint brought against the Defendant for its alleged unlawful practices in violations of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiff was employed by the Defendant as a Production Specialist from July 2020 through the present. According to the complaint, the Plaintiff and other similarly situated production workers were classified by the Defendant as hourly employees and non-exempt from the overtime requirements of the FLSA. However, although they were regularly required by the Defendant to work more hours than they were scheduled to wait for the next person to show up for their shift, and their hours worked were recorded via a digital fob, which logged their hours into an electronic payroll system maintained by the Defendant, the Defendant inadequately compensated them for all hours they worked. The Defendant allegedly rounded down their hours worked in 15 to 30 minutes increments. As a result, the Plaintiff and other similarly situated production workers were deprived by the Defendant of their lawful overtime premium for all hours they worked over 40 each week. Evergreen Packaging, LLC owns and operates a paper mill in Jefferson County. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: josh@sanfordlawfirm.com FAIRFIELD, ME: Class Action Mulled Over PFAS Contaminated Wells --------------------------------------------------------------- Molly Shelly, writing for Morning Sentinel, reports that as the state continues to investigate water and farmland in Fairfield that are contaminated with "forever chemicals," the town and some of its residents are mobilizing to come up with long-term solutions in 2021. Lifelong Fairfield resident Stana McLeod, 74, has formed a Facebook group that now has more than 40 members. McLeod posts information to educate residents about the ongoing investigation and a similar situation that unfolded more than 20 years ago, both involving the spreading of sludge. So far, the Maine Department of Environmental Protection has discovered 18 wells in Fairfield that have levels of per- and polyfluoroalkyl substances -- PFOA and PFOS -- that are higher than the 70-parts-per-trillion limit allowed by the U.S. Environmental Protection Agency. The discoveries came after a test was conducted by the Maine Department of Agriculture, Conservation and Forestry in February that showed milk from Tozier Dairy Farm along Ohio Hill Road had levels of perfluorooctanesulfonic acid that were higher than the state-allowed limit of 210 parts per trillion. Milk samples from the farm had levels of 12,700, 14,900 and 32,200 parts per trillion. The farm's products have been pulled from shelves. Jerri-Lee Cookson, 65, who lives less than a mile from two fields owned by the Toziers and 3 miles from the farm, is among those who have had their water sources tested. Maine Department of Environmental Protection officials discovered in September 2020 that Cookson's water contained such high levels of PFOS and PFOA that she was advised to stop drinking it. Cookson's neighbor, Judy Poulin, 77, had even higher levels of the chemicals in her water and was told to stop using it, too. "My right to clean water has been taken away from me, and I didn't have anything to do with it," Poulin said in November 2020. "I'm not a happy camper." In October, Poulin began hauling five-gallon containers of fresh water to her house for drinking and cooking. "Those things are heavy," she said. "I have to wait for somebody to come to bring them in the house for me." PFAS are a group of manmade chemicals introduced in the 1940s. They were used in consumer products, such as carpeting, fabric, clothing, food packaging and pots and pans. They were also used in firefighting foams used at airports, training facilities and military bases. They are called "forever chemicals" because their bond is strong and they do not break down easily in the environment or in the body. Studies have shown exposure can cause health issues, such as elevated cholesterol, thyroid disease, damage to the liver and kidneys, adverse effects on fertility and low birth weight. Other studies show links between PFAS and the elevated risk of certain cancers, according to the U.S. EPA and other sources. In 2021, McLeod said she will continue following the investigation so she and other residents can file a class-action lawsuit through Susan A. Faunce, a personal-injury lawyer from Lewiston. "(Faunce) handles things like this, and they suggested that I -- as people find out their wells are contaminated -- I would have them call there and talk to her," McLeod said in December. "They will keep a record of these people, and then we can talk about the class-action lawsuit." McLeod said she remembered a similar situation that arose from the disposal of paper mill waste in a Fairfield landfill in the 1970s and 1980s. From McLeod's grandmother's house, the landfill could be seen glowing in the dark, sometimes catching fire, smelling horrible and being connected to a cancer cluster. With PFAS chemicals, the threat became insidious because the sludge was billed as beneficial to farmland and lasting "forever," according to reports. "I feel like we are doomed out here," McLeod said in an interview in December, adding her efforts to bring the situation to the attention of local and state officials were not getting through. Meanwhile, Fairfield will continue providing bottled water to residents who have been told to stop drinking from their wells while the state installs filtration systems. "The Department of Environmental protection has assured me that they will continue to make water available to residents with effected wells until they can install the granular activated carbon filtration systems at each private home," Town Manager Michelle Flewelling wrote in a Dec. 23 email. "The Town provides updates to residents, that are received from DEP, with the weekly water pick up. Those updates are then posted to our website under the PFAS notification section." In November, Poland Spring, the bottler of spring water, donated 960 gallons of water for the town to distribute to residents. The town of Skowhegan has also donated 900 gallons of water that was left from the apparent contamination of its drinking water system that resulted in a "do not drink" order. Fairfield is also looking to expand its water system as another long-term solution. "The Town is currently investigating the extension of the Kennebec Water District's infrastructure so that public water can be provided as a long term solution," Flewelling wrote in her email. [GN] FLEET COURIER: Fails to Pay Proper Wages to Drivers, Blount Says ----------------------------------------------------------------- REGINALD BLOUNT; DESMOND WHATLEY; DAVID BARTLESON; and KIRK L. JIMMERSON, JR., Plaintiffs v. FLEET COURIER, INC., Defendant, Case No. 2:21-cv-00009 (E.D. Wis., Jan. 4, 2021) is an action against the Defendant for failure to pay minimum wages, overtime compensation, and provide accurate wage statements. The Plaintiffs were employed by the Defendants as driver. FLEET COURIER, INC. offers courier service for delivery. [BN] The Plaintiffs are represented by: Carlos R. Pastrana, Esq. Nathaniel Cade, Jr., Esq. CADE LAW GROUP LLC P.O. Box 170887 Milwaukee, WI 53217 Telephone: (414) 255-3802 E-mail: carlos@cade-law.com nate@cade-law.com FORDHAM FULTON: Fails to Pay Minimum & OT Wages, De Jesus Claims ---------------------------------------------------------------- JUAN ELIAS DE JESUS, individually and on behalf of other employees similarly situated, Plaintiff v. FORDHAM FULTON REALTY, CORP. and LOTUS MANAGEMENT SERVICES, INC., Defendants, Case No. 1:20-cv-10951 (S.D.N.Y., December 28, 2020) alleges the Defendants of willful violations of minimum and overtime provisions under the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired by the Defendants from in or about October 2013 until April 17, 2020 as a porter, whose duties include removing of garbage and cleaning the interior and exterior grounds of the premises as well as cleaning of vacant apartments. The Plaintiff contends that he was not paid by the Defendants the lawful minimum wage and overtime compensation at a rate of one and one-half times his regular rate of pay for all hours he worked over 40 each week. The Plaintiff seeks all unpaid minimum wages and overtime compensation, liquidated damages, attorneys' fees and costs, and pre- and post-judgment interest. Fordham Fulton Realty Corp. and Lotus Management Services, Inc. are in the business of owning and renting properties, including residential units, to members of the public. The Plaintiff is represented by: Glendoval J. Stephens, Esq. THE STEPHENS LAW FIRM PLLC 305 Broadway, Suite 1200 New York, NY 10007 Tel: (212) 385-1400 Fax: (212) 385-1401 E-mail: firm@stephenslawny.com GENZYME CORP: Wilkins Suit Moved From Indiana to Massachusetts -------------------------------------------------------------- In the case, TRINA WILKINS, JAMES BISHOP, LISA BISHOP, TONI CORDOVA, JOHN CORTINA, JILL CORTINA, GEORGE DEMKO, MARY HELTON, D.J., SYDNEY JOHNSON, DAMON LAFORCE, MICHAEL MASULA, ERIN MASULA, JAMES MATTHEWS, THOMAS OLSZEWSKI, DARLENE COOKINGHAM, THOMAS STANZIANO, WENDY STANZIANO, EDDIE VIERS, WILLIAM MCNEW, JEANNE WALLACE, JAMES WALLACE, SAMUEL WALLACE, NATE BROOKS, AMBER BRITTON, and DOVAN HELTON, Plaintiffs v. GENZYME CORPORATION, Defendant, Case No. 4:20-cv-00051-TWP-DML (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, New Albany Division, granted the Defendant's Motion to Transfer Venue. Plaintiff Wilkins and numerous other Plaintiffs named in the caption initiated the proposed class action lawsuit against Genzyme for numerous claims involving health care pharmaceutical personal injury and product liability. After the Plaintiffs filed a Second Amended Complaint, Genzyme promptly filed a Motion to Transfer Venue, asking the Court to transfer the action to the U.S. District Court for the District of Massachusetts. A video oral argument was held on Dec. 16, 2020. Genzyme asks the Court to transfer the case to the District of Massachusetts pursuant to 28 U.S.C. Section 1404(a). It argues that the presence of ongoing or past litigation in the transferee court that is similar to the case at hand is one of the most significant factors when considering transfer. It also asserts that transfer to Massachusetts is appropriate because the case involves allegations surrounding events occurring in Massachusetts, as well as evidence and witnesses primarily based in Massachusetts, and it is centered on the actions of a Massachusetts-domiciled corporation. Finally, Genzyme contends there is no compelling reason to litigate the action in Indiana. Responding in opposition to transferring the case, the Plaintiffs assert that most of the witnesses and evidence related to Genzyme's fraudulent scheme are not located in Massachusetts. They argue that Genzyme has put forward only generic arguments that the tortious conduct occurred where Genzyme is headquartered, but the reality is that witnesses are located all over the country. The documentary evidence is in electronic format and already has been produced in the case of Schubert v. Genzyme Corporation, et al., a Utah case. The Plaintiffs argue that the private and public interests do not favor transfer. If the case is transferred to Massachusetts, the Plaintiffs assert that the case will be randomly assigned, so there is no guarantee that the judge familiar with the case will even handle this matter. They assert that the public interest factors favor keeping the case in Indiana. Indiana has a public interest in providing a forum for its citizens who have been injured. After careful consideration of the parties' arguments and the case law, Judge Pratt concludes that the factors of convenience and the interests of justice favor transferring the case to the District of Massachusetts. Genzyme's arguments and position are well-taken. The Plaintiffs are located in Massachusetts, Virginia, Indiana, and a number of other states spread across the country. Genzyme, like some of the Plaintiffs, is located in Massachusetts. Witnesses are spread across the country, but many of the witnesses with knowledge concerning Genzyme's conduct giving rise to the claims are located in Massachusetts. The location of material events is primarily in Massachusetts, with some events occurring in states across the country. Access to sources of proof and access to and distance from resources are close to neutral whether in Indiana or Massachusetts. These factors of "convenience" tend to favor venue in Massachusetts. The Judge further concludes that the factors of the "interests of justice" also favor venue in Massachusetts. The efficient administration of the court system, docket congestion, and likely speed to trial in each forum point to Massachusetts. The Southern District of Indiana is the second busiest federal district court in the country based on weighted case load per judge. The District of Massachusetts has 17 district court judges and ten magistrate judges. The Southern District of Indiana has only six district court judges and seven magistrate judges. As of March 31, 2020, the District of Massachusetts had 3,685 pending civil cases whereas the Southern District of Indiana had 10,064 pending civil cases. According to the Local Rules of the District of Massachusetts, upon transfer, the case would be assigned to the judge who previously handled the related cases of Hochendoner v. Genzyme Corporation, No. 1:11-cv-10739-DPW (D. Mass. Mar. 9, 2011) and Adamo v. Genzyme Corporation, No. 1:13-cv-11336 (D. Mass. June 3, 2013). Given that essentially the same case has been considered by the District of Massachusetts, that district court's familiarity with the relevant law, claims, issues, and parties is superior to the Court's familiarity with such. Judicial efficiency would be served by transferring the case. For the foregoing reasons, Judge Pratt granted Genzyme's Motion to Transfer Venue, and transferred the case to the District of Massachusetts. The Clerk is directed to transfer the matter to the U.S. District Court for the District of Massachusetts and close the matter on the Court's docket. A full-text copy of the Court's Dec. 30, 2020 Order is available at https://tinyurl.com/y4qpocfq from Leagle.com. GOOGLE LLC: Astarita Sues Over Online Display Advertising Monopoly ------------------------------------------------------------------ MARK J. ASTARITA, individually and on behalf of all others similarly situated, Plaintiff v. GOOGLE LLC; and ALPHABET INC., Defendants, Case No. 3:21-cv-00022 (N.D. Cal., Jan. 4, 2021) arises from the Defendants' violation of the Sherman Act. According to the Plaintiff in the complaint, Google leveraged its monopoly in online search and search advertising to acquire an illegal monopoly in brokering display advertising, the placement of advertisements on other companies' websites. Google gained this market dominance in part by acquiring rivals in the online advertising space, conditioning access to its search-results data and YouTube video advertising platform upon the purchase of its separate display advertising services, and making its intermediation systems incompatible with those of its competitors. Google's scheme to monopolize the market for brokering display advertising has vastly reduced competition in the purchase and placement of this advertising and resulted in economic harm to advertisers and publishers alike. Because of its pervasive monopoly conduct, Google now controls the "ad tech stack" comprising the intermediary services between advertisers, which pay to place digital advertisements, and publishers paid to publish those ads on their websites. Companies that wish to place or publish online advertisements have little choice but to pay Google for its advertising services, including instantaneous auctions, and Google's exclusion of competition in this intermediation market has enabled it to favor its own advertising platforms. Google's extraction of monopoly rents through fees charged to both advertisers and publishers has resulted in higher prices paid by advertisers, higher consumer prices, and lower payments to publishers of online display advertisements. Google, LLC is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, a search engine, cloud computing, software, and hardware. Alphabet Inc. operates as a holding company. The Company, through its subsidiaries, provides Web-based search, advertisements, maps, software applications, mobile operating systems, consumer content, enterprise solutions, commerce, and hardware products. [BN] The Plaintiff is represented by: Dena C. Sharp, Esq. Jordan Elias, Esq. Adam E. Polk, Esq. Scott M. Grzenczyk, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dsharp@girardsharp.com jelias@girardsharp.com apolk@girardsharp.com scottg@girardsharp.com - and - John D. Radice, Esq. April Lambert, Esq. RADICE LAW FIRM, PC 475 Wall Street Princeton, NJ 08540 Telephone: (646) 245-8502 Facsimile: (609) 385-0745 E-mail: jradice@radicelawfirm.com alambert@radicelawfirm.com GOOGLE: Privacy Suit Class Cert. Filing Deadline Set for July 16 ---------------------------------------------------------------- In the class action lawsuit re: GOOGLE ASSISTANT PRIVACY LITIGATION, Case No. 5:19-cv-04286-BLF (N.D. Cal.), the Hon. Judge Beth Labson Freeman entered an order terminating the current class certification filing deadline. The Court sets the new class certification filing deadline for July 16, 2021. This deadline is subject to extension, if necessary. On January 4, 2021, the parties filed a stipulation requesting that the Court (1) terminate the current class certification filing deadline and (2) set a new class certification filing deadline after the pending motion to dismiss is resolved. Google is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, a search engine, cloud computing, software, and hardware. A copy of the Court's order dated Jan. 5, 2020 is available from PacerMonitor.com at https://bit.ly/38lLrkL at no extra charge.[CC] GREAT ATLANTIC: Website Inaccessible to Blind, Monegro Claims ------------------------------------------------------------- FRANKIE MONEGRO, on behalf of himself and all others similarly situated, Plaintiff v. GREAT ATLANTIC TRADING COMPANY, Defendants, Case No. 1:20-cv-10970-PGG (S.D.N.Y., December 28, 2020) is a class action complaint brought against the Defendant for its alleged violation of the Americans with Disabilities Act. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read Website content using his computer. The Plaintiff claims that when she visited the Defendant's Website, www.caviarstar.com, on multiple occasions, the last occurring in December 2020, she encountered multiple access barriers which denied her of a shopping experience similar to that of sighted individual. Due to the Website's lack of a variety of features and accommodations, the Plaintiff was effectively barred from being able to determine what specific products were offered for sale. The Plaintiff alleges that the Defendant has engaged in acts of intentional discrimination because it has failed to comply with the Web Content Accessibility Guidelines 2.1, which would provide the Plaintiff and other visually-impaired consumers with equal access to the Website. The Plaintiff seeks a preliminary and permanent injunction requiring the Defendant to take all the steps necessary to make its Website into full compliance with the requirements set forth in the ADA; compensatory damages, including all applicable statutory and punitive damages and fines; pre- and post-judgment interest; reasonable attorneys' and expert fees and expenses; and other relief that the Court deems just and proper. Great Atlantic Trading Company is a caviar and gourmet foods company that owns and operates the Website. [BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: mrozenberg@steinsakslegal.com GREAT CONSTRUCTION: Workers Collective Class Certified in Cruz Suit ------------------------------------------------------------------- In the class action lawsuit captioned as Jorge Cruz, Carlos Cruz, William Ordonez, and Segundo Ordonez, on behalf of themselves and all other persons similarly situated, v. Great Construction Group Corp., Great Construction Partners Corp., Everwood Construction Inc., Jiri Osicka, and Kamil Svrcek, Case No. 7:20-cv-04380-KMK (S.D.N.Y.), the Hon. Judge Kenneth M. Karas entered an order: 1. approving for mailing the collective action notice entitled "NOTICE OF LAWSUIT AND OPPORTUNITY TO JOIN," attached to the plaintiffs' letter of December 21, 2020, and the opt-in form entitled "CONSENT TO JOIN COLLECTIVE ACTION AND BECOME A PARTY PLAINTIFF," attached to the plaintiffs' letter of December 21, 2020, to potential collective action opt-in plaintiffs in English and Spanish and any other language spoken by a significant number of class members; 2. certifying the collective class of potential plaintiffs consisting of: "all current and former construction workers, including carpenters and laborers, who were employed by Great Construction Group Corp., Great Construction Partners Corp., and Everwood Construction Inc. At at any time on or after June 8, 2017, to the date of this Order; 3. directing the defendants, within 20 days of this Order, to provide to the plaintiffs' counsel, in a spreadsheet or other machine-readable form, the full names and last-known addresses of all potential plaintiffs who who fit within the collective class, and indicate the native languages (if known) of any individuals for whom English is not their native language; 4. directing the defendants to instead supply to the plaintiffs' counsel telephone numbers and/or email addresses, to the extent defendants possess this information for any individuals for whom the defendants lack valid addresses, 5. directing the Plaintiffs' counsel to keep all information supplied strictly confidential, and to use the information solely for the purpose of locating potential opt-in plaintiffs for the purpose of notifying them of the pendancy of this action; 6. directing the Plaintiffs to mail the notice of collective action and opt-in form, in English and any other native language, to all potential collective action opt-in plaintiffs no later than ten days following defendants' disclosure of their names and addresses; 7. permitting the plaintiff's counsel to mail the notice to any such persons again at any other address they may determine is appropriate, if any notice to any potential collective action opt-in plaintiff is returned as undeliverable; 8. authorizing the Plaintiffs' counsel to send a reminder mailing and/or email to all unresponsive collective action members halfway through the notice period; and 9. directing all potential collective action plaintiffs to opt-in no later than 60 days following the date of the initial mailing of the collective action notice by returning the executed forms. A copy of the Court's order dated Jan. 5, 2020 is available from PacerMonitor.com at https://bit.ly/3bhS4Xc at no extra charge.[CC] HOMEXPRESS MORTGAGE: Beal Sues Over Unsolicited Text Messages -------------------------------------------------------------- JORDAN BEAL, individually and on behalf of all others similarly situated, Plaintiff v. HOMEXPRESS MORTGAGE CORP. and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 3:20-cv-02516-JLS-AHG (S.D. Cal., December 29, 2020) is a class action complaint brought against the Defendants for their alleged negligent and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant sent text messages on the Plaintiff's cellular telephone number ending in -0980 beginning in or about October 2020 in an attempt to promote its services. The Defendant transmitted its text messages via its SMS Blasting Platform, which is an "automatic telephone dialing system" (ATDS) on the Plaintiff's cellular telephone service for which the Plaintiff incurs a charge for incoming calls. The Plaintiff asserts that the Defendant did not obtain his "prior express consent" to receive text messages using an ATDS on his cellular telephone. In addition, the Plaintiff's cellular telephone number has been on the National Do-Not-Call Registry since 2003. As a result of the Defendant's unsolicited text messages, the Plaintiff was harmed and suffered damages for invading his privacy and causing him to incur certain charges or reduced telephone time for which he had previously paid. The Plaintiff seeks an injunctive relief prohibiting such unlawful conduct of the Defendant in the future, statutory and treble damages, and other relief that the Court deems just and proper. Homexpress Mortgage Corp. is a mortgage lending company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com IDT DOMESTIC: Sedaghatfar Sues Over Unsolicited Text Messages ------------------------------------------------------------- NAHID SEDAGHATFAR, individually and on behalf of all others similarly situated, Plaintiff v. IDT DOMESTIC TELECOM, INC., and DOES 1 through 10, inclusive, Defendant, Case No. 2:20-cv-11729 (C.D. Cal., December 29, 2020) brings this complaint as a class action against the Defendant seeking damages and injunctive relief under the Telephone Consumer Protection Act. The Plaintiff claims that the Defendant transmitted multiple unsolicited text messages on her cellular telephone number ending in -9990 on May 19, 2020 in an attempt to send a spam advertisement of its services. The Defendant allegedly used an "automatic telephone dialing system" in transmitting text messages without the Plaintiff's prior express consent to receive such text messages via ATDS. The Plaintiff asserts that he was harmed by the Defendant's unsolicited text messages. Thus, the Plaintiff seeks an injunctive relief prohibiting such unlawful conduct of the Defendant in the future, statutory and treble damages, and other relief that the Court deems just and proper. IDT Domestic Telecom, Inc. is a telecommunications company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com INTERCEPT PHARMACEUTICALS: Chauhan Suit Removed to S.D. New York ---------------------------------------------------------------- The class action lawsuit titled RAKESH CHAUHAN, individually and on behalf of all others similarly situated, Plaintiff v. INTERCEPT PHARMACEUTICALS, INC.; MARK PRUZANSKI; and SANDIP S. KAPADIA, Defendants, Case No. 1:21-cv-00036-LJL, was removed from the U.S. District Court for the Eastern District of New York to the U.S. District Court for the Southern District of New York on Jan. 4, 2021. The District Court Clerk assigned Case No. 1:21-cv-00036 to the proceeding. The case is brought over alleged violations of the U.S. Securities Exchange Act and is assigned to the Hon. Lewis J Liman. Intercept Pharmaceuticals, Inc. manufactures and markets biopharmaceutical products. The Company focuses on the development and commercialization of therapeutics to treat chronic liver diseases utilizing proprietary bile acid chemistry. [BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com -and- Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com JAY INSLEE: Schumacher, et al., Seek to Certify Class ----------------------------------------------------- In the class action lawsuit captioned as LINDA SCHUMACHER, et al., v. JAY R. INSLEE, et al., Case No. 3:18-cv-05535-MJP (W.D. Wash.), the Plaintiffs ask the Court to enter an order: 1. certifying a class, consisting of: "the Plaintiffs who have suffered the exact same constitutional deprivations as similarly situated Individual Providers (IP's) throughout the State of Washington, all of whom were forced to affiliate with Service Employees International Union 775 (SEIU 775) and pay a portion of their wages in exchange for the privilege of caring for disabled family members;" 2. appointing the Plaintiffs as the class representatives; and 3. appointing Robert A. Bouvatte, Jr. and James G. Abernathy, Freedom Foundation, as class counsel for representation of the certified class. Under Fed.R.Civ.P. 23, certification of a class is appropriate for the instant First Amendment and Fourteenth Amendment claims relating to the Defendants' unlawful deductions of union dues from the wages of the Plaintiffs and other members of the proposed class, which have been applied pursuant to the same authority and using the same mechanism against all class members (including the named Plaintiffs), and which therefore introduce only common questions of law and fact as to numerous class members, says the complaint. The Plaintiffs all contend that union dues and other payments were deducted from their wages without consent, and the Union's principal basis for rebutting this, with respect to the Plaintiffs as it will be for other class members. SEIU 775 was formed in 2002 when home care and nursing home workers from several different SEIU locals formed a labor union focused on long-term care workers and issues. A copy of the Plaintiffs' motion to certify class dated Jan. 5, 2020 is available from PacerMonitor.com at https://bit.ly/3rZtn7V at no extra charge.[CC] The Plaintiffs are represented by: Robert A. Bouvatte, Esq. James G. Abernathy, Esq. C/O FREEDOM FOUNDATION P.O. Box 552, Olympia, WA 98507 Telephone: (360) 956-3482 Facsimile: (360) 352-1874 E-mail: rbouvatte@freedomfoundation.com jabernathy@freedomfoundation.com K12 INC: Klein Law Firm Reminds Investors of January 19 Deadline ---------------------------------------------------------------- The Klein Law Firm on Jan. 4 disclosed that class action complaints have been filed on behalf of shareholders of the following companies. There is no cost to participate in the suit. If you suffered a loss, you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. HP Inc. (NYSE:HPQ) Class Period: November 6, 2015 - June 21, 2016 Lead Plaintiff Deadline: January 4, 2021 The HPQ lawsuit alleges HP Inc. made materially false and/or misleading statements and/or failed to disclose during the class period that: (a) HP's channel inventory management and sales practices resulted in the sale of supplies to customers that did not need or want the product in order to artificially increase revenues and profits; (b) HP's channel inventory management and sales practices resulted in the sale of supplies to customers outside of designated regions at unsustainable discounts in order to artificially increase revenues and profits; (c) HP's channel inventory management and sales practices resulted in the sale of supplies at steep discounts to customers to encourage those customers to sell the supplies further down the supply channel, out of HP's inventory management metrics; and (d) as a result of (a)-(c) above, defendants' statements about HP's business condition and prospects were materially false and misleading when made. Learn about your recoverable losses in HPQ: http://www.kleinstocklaw.com/pslra-1/hp-inc-loss-submission-form-2?id=11906&from=1 K12 Inc. (NYSE:LRN) Class Period: April 27, 2020 - September 18, 2020 Lead Plaintiff Deadline: January 19, 2021 The complaint alleges K12 Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) K12 lacked the technological capabilities, infrastructures, and expertise to support the increased demand for virtual and blended education necessitated by the global pandemic; (ii) K12 lacked adequate cyberattack protocols and protections to prevent the disabling of its computer system; (iii) K12 was unable provide the necessary levels of administrative support and training to teachers, students, and parents; and (iv) based on the foregoing, Defendants lacked a reasonable basis for their positive statements about the Company's business, operations, and prospects and/or lacked a reasonable basis and omitted facts. Learn about your recoverable losses in LRN: http://www.kleinstocklaw.com/pslra-1/k12inc-loss-submission-form?id=11906&from=1 Kandi Technologies Group, Inc. (NASDAQ:KNDI) Class Period: March 15, 2019 - November 27, 2020 Lead Plaintiff Deadline: February 9, 2021 The KNDI lawsuit alleges that throughout the class period, Kandi Technologies Group, Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) Kandi artificially inflated its reported revenues through undisclosed related party transactions, or otherwise had relationships with key customers that indicated those customers did not have an arms length relationship with Kandi; (ii) the majority of Kandi's sales in the past year had been to undisclosed related parties and/or parties with such a close relationship and history with Kandi that it cast doubt on the arms-length nature of their relationship; (iii) all the foregoing, once revealed, was foreseeably likely to cast doubt on the validity of Kandi's reported revenues and, in turn, have a foreseeable negative impact on the Company's reputation and valuation; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. Learn about your recoverable losses in KNDI: http://www.kleinstocklaw.com/pslra-1/kandi-technologies-group-inc-loss-submission-form?id=11906&from=1 Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. If you suffered a loss during the class period and wish to obtain additional information, please contact J. Klein, Esq. by telephone at 212-616-4899 or visit the webpages provided. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] K12 INC: Portnoy Law Firm Reminds Investors of January 19 Deadline ------------------------------------------------------------------ The Portnoy Law Firm advises investors that a class action lawsuit has been filed on behalf of K12, Inc. (NASDAQ:BRY) investors that acquired shares between April 27, 2020 and September 18, 2020. Investors have until January 19, 2021 to seek an active role in this litigation. Investors are encouraged to contact attorney Lesley F. Portnoy, to determine eligibility to participate in this action, by phone 310-692-8883 or email, or click here to join the case. It is alleged in the complaint that throughout the Class Period, Defendants made misleading and/or false statements and/or failed to disclose that: (1) K12 lacked the expertise, infrastructure, and technological capabilities, to support the increased demand for blended and virtual education necessitated by the global pandemic; (2) K12 lacked adequate cyberattack protections and protocols to prevent the disabling of its computer systems; (3) K12 was unable to provide the necessary levels of training and administrative support to students, teachers, and parents; (4) and K12's officers lacked a reasonable basis for their positive statements about their prospects, operations, and business. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than January 19, 2021. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims arising from corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes. Lesley F. Portnoy, Esq. Admitted CA and NY Bar lesley@portnoylaw.com 310-692-8883 www.portnoylaw.com [GN] LOUISIANA: 2017 Class Certification Order Reinstated in Krielow --------------------------------------------------------------- In the case, CARL KRIELOW, GLENDON MARCEAUX, PHILLIP J. WATKINS, AND 44 SIMILARLY SITUATED PLAINTIFFS v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Case Nos. 2019 CA 1696 and 2019 CW 1277 (La. App.), the Court of Appeal of Louisiana for the First Circuit has entered an order: (i) denying the Rice Growers' motion to dismiss the appeal; (ii) vacating the Oct. 30, 2019 judgment containing the 2019 Certification order, and reinstating the previous 2017 Certification order contained in the judgment dated Oct. 19, 2017; (iii) denying as moot the Rice Boards' writ application, 2017 CW 1277; and (iv) remanding the case for further proceedings. The appeal involves a dispute over the modification of a class definition in a previously certified class action that stems from the Louisiana Supreme Court's declaration that La. R.S. 3:3534 and La. R.S. 3:3544 ("Rice Statutes"). The Plaintiffs ("Rice Growers") filed a petition for declaratory and injunctive relief on May 16, 2012. Their lawsuit challenged the constitutionality of the Rice Statutes that authorized the Commissioner of the Louisiana Department of Agriculture and Forestry ("LDAF") to collect monetary assessments imposed on the Rice Growers. The collected funds were then paid to the Louisiana Rice Promotion Board and the Louisiana Rice Research Board to promote the growth and development of the rice industry in Louisiana. The LDAF was the original named Defendant and the Rice Boards were added as Defendants in the Rice Growers' first amended petition. In 2013, the supreme court declared the Rice Statutes to be unconstitutional, as an improper delegation of legislative authority. Following the supreme court's ruling, the Rice Growers amended their petition a second time and sought class certification for the restitution of the wrongful assessments common to all Rice Growers that sold rice in Louisiana from Jan. 28, 1992, through 2014. The LDAF and the Rice Boards filed various exceptions, including an exception of prescription. After a hearing in June 2014 and another hearing in October 2014, the trial court signed a judgment on June 16, 2015, establishing and certifying a 12-year class period. Additionally, it ruled on the exception of prescription, finding that all of the Rice Growers' claims for assessments paid more than ten years before the Rice Growers filed their lawsuit in 2012 had prescribed. Therefore, the trial court certified the class ("2015 Certification order") to include all Rice Growers who had paid assessments from May 16, 2002, through July 31, 2014. While the trial court's ruling on the 2015 Certification was pending, the Rice Boards urged an exception raising the objection of no cause of action and sovereign immunity from unjust enrichment claims. The trial court denied the Rice Boards' exceptions, and the Appellate Court denied the Rice Boards' writ application and request for a stay. The supreme court, however, granted a writ in favor of the Rice Boards and instructed the trial court to reconsider its rulings in light of a supreme court decision, Canal/Claiborne Ltd. v. Stonehedge Development, LLC, 2014-0664 (La. 12/9/14). As a result, the trial court issued a new judgment that acknowledged the Rice Boards' defense of sovereign immunity and dismissed the Rice Growers' unjust enrichment claims. On Aug. 3, 2015, the Rice Growers filed a third amending petition, alleging that their payment of the unconstitutional assessments amounted to their property being taken without due process of law. They also filed a motion for new trial due to inconsistent judgments on the unjust enrichment claims. The trial court issued another judgment dated May 4, 2016, clarifying that the Rice Growers' claims for unjust enrichment were dismissed with prejudice, but that the Rice Growers still had claims for the taking of their property without due process of law, conversion, and any other claims available at law or in equity. The Rice Boards sought supervisory review of the trial court's ruling, and on July 21, 2016, the Appellate Court ruled that the Rice Growers no longer have a cause of action for unjust enrichment or "any other claims." It also noted that because the trial court had previously ruled that all actions delictual in nature had prescribed, it was unable to ascertain what causes of action, if any, remained. Almost a year later, on May 31, 2017, the Rice Growers filed a motion to amend the class definition and a renewed motion to approve the class notice and method of dissemination. They also filed a fourth amended petition on Sept. 29, 2017, alleging that the assessments constituted an unconstitutional taking and a recurring intentional tortious act that constituted an unlawful conversion. On Oct. 19, 2017, the trial court signed a judgment amending the class definition to include a much narrower three-year class period, beginning one year before the lawsuit was filed and ending two years after it was filed. Thus, the defined class ("2017 Certification order") included all Rice Growers' claims for paid assessments levied on proceeds from rice sold in Louisiana from May 16, 2011, through July 31, 2014. The trial court also approved the proposed class notice and method of dissemination related to the amended class definition. No party sought review of the 2017 Certification order. In November 2018, the Rice Growers once again sought to amend the class definition, seeking to modify the 2017 Certification order to create 23 (one-year each) subclasses to include all Rice Growers' claims for paid assessments levied on proceeds from rice sold in Louisiana from July 1, 1992, through July 31, 2014. The trial court heard the Rice Growers' motion to amend on Jan. 7, 2019, and took the matter under advisement. A Sept. 9, 2019-minute entry indicates the trial court ruled that the class definition, notice, and notice plan would be amended as requested ("2019 Certification order"). The trial court did not sign a written judgment regarding the 2019 Certification order until Oct. 30, 2019. In the meantime, while the motions to amend and decertify were pending under advisement, the trial court issued a case management schedule that called for the class notice to be sent to class members by July 12, 2019. The Rice Boards filed a motion to stay the Rice Growers' issuance of the class action notice and operation of a website that contradicted the 2017 Certification order. They further requested that the Rice Growers be found in contempt of the 2017 Certification order and be ordered to send notice that the disputed and expanded class notice was legally defective and without court approval. The trial court denied the Rice Boards' motion to stay in a minute entry on Aug. 27, 2019. The LDAF and Rice Boards' motion to decertify was not addressed by the trial court. The LDAF and Rice Boards filed a writ application to seek review of the trial court's denial of their motion to stay. That writ was referred to the appeal panel. Additionally, the Rice Boards filed a suspensive appeal from the written judgment containing the 2019 Certification order dated Oct. 30, 2019, which was granted. The Court notes that the Oct. 30, 2019 judgment also contained the trial court's denial of the Rice Boards' motion to stay. Because the Rice Boards timely filed an application for supervisory writ seeking review of the trial court's denial of the motion to stay, which, by order of the Court is to be considered with the appeal, it will exercise its supervisory jurisdiction to review the merits of the motion to stay in the appeal of the 2019 Certification order. The Rice Growers filed a motion in the Court to dismiss the Rice Boards' suspensive appeal, urging that the 2019 Certification order merely modified the class definition and is not an appealable judgment. On March 3, 2020, the motion to dismiss was referred to the appeal panel for consideration. The Rice Boards assert two assignments of error in the appeal: (i) the trial court erred in modifying the class definition to expand the commencement of the class period from one year prior to the filing of the lawsuit, to approximately 20 years prior to the filing of the lawsuit; and (ii) the trial court erred in approving the amended class notice and notice plan. Before addressing the assignments of error, the Appellate Court initially considers the Rice Growers' underlying motion to dismiss the Rice Boards' suspensive appeal, because it concerns its subject matter jurisdiction. Pursuant to well-settled principles of statutory construction, the Appellate Court finds that the Rice Growers are incorrect in reading the two subsections of La. Code Civ. P. art. 592 in isolation, rather than together in their entirety. Accordingly, the Appellate Court denied the Rice Growers' motion to dismiss the Rice Boards' suspensive appeal of the modification of the class definition from three years to over 20 years, which it finds to be a significant and material alteration and expansion of the previously approved class certification. It exercises its appellate jurisdiction to review the judgment containing the 2019 Certification order that greatly expanded the time period in the class definition. At the hearing on the Rice Growers' motion to amend the class definition and notice plan, the Rice Growers did not introduce any evidence to support the need to expand or clarify the class definition for the class notice. There was no evidence of what the class notice or proposed website for potential class members would look like. The Appellate Court's review of the record reveals a series of court orders that were ultimately reflected in the 2017 Certification order of the three-year class period, as well as the trial court's approval of the class notice plan that accompanied the 2017 Certification order. The record is devoid of evidence of any change in facts, or change in the law of the case, or new facts or law that would support the drastically expanded class definition reflected in the 2019 Certification order. Thus, the Appellate Court concludes that the trial court abused its discretion in issuing the 2019 Certification order that redefined and expanded the class and approved a new class notice plan. While the trial court may modify the size and status of a class definition, the modification must be substantiated by detailed findings of fact. Therefore, the Appellate Court is constrained to vacate the Oct. 30, 2019 judgment containing the 2019 Certification order and approval of class notice plan and method of dissemination of the class notice. Given its ruling vacating the trial court's 2019 Certification order and approval of the amended class notice plan, the Appellate Court finds that the Rice Boards' writ application regarding the denial of their motion to stay is now moot. Therefore, it denied the writ referred for consideration with the appeal. The case is remanded for further proceedings. Each party is to pay its own costs associated with the suspensive appeal, related writ, and motion to dismiss. A full-text copy of the Court's Dec. 30, 2020 Order is available at https://tinyurl.com/yyv67lmc from Leagle.com. Jerald P. Block -- jpb@blocklawfirm.com -- Kendall J. Krielow -- kjk@blocklawfirm.com -- Richard C. Breaux -- rcb@blocklawfirm.com -- in Thibodaux, Louisiana. Larry S. Bankston, Jenna H. Linn, in Baton Rouge, Louisiana. Gail N. McKay, in Baton Rouge, Louisiana. Cleo Fields, in Baton Rouge, Louisiana. Attorneys for Plaintiffs-Appellees Carl Krielow, Glendon Marceaux, Phillip J. Watkins, and Similarly Situated Plaintiffs. Jeff Landry, Attorney General, Christina B. Peck, Asst. Attorney General, in Baton Rouge, Louisiana. Freddie Pitcher, Jr. -- freddie.pitcher@phelps.com -- Shelton Dennis Blunt -- dennis.blunt@phelps.com -- A. Paul LeBlanc, Jr. -- paul.leblanc@phelps.com -- Monica M. Vela-Vick -- monica.vela-vick@phelps.com -- in Baton Rouge, Louisiana, Attorneys for Defendants-Appellants, Louisiana Rice Promotion Board and Louisiana Rice Research Board. MALAYSIA: Class Action Mulled Over Unscheduled Water Disruptions ---------------------------------------------------------------- Angie Tan, writihg for The Malysian Insight, reports that WANGSA Maju MP Tan Yee Kew is set to lead 750 consumers in suing several parties, including water authorities, over unscheduled water disruptions that had affected them last year. She said they had suffered from these water cuts, sometimes as many as four times in a single month, causing them all kinds of hardships. [GN] MARS WRIGLEY: Beers Sues Over Ice Cream Bars' Deceptive Labels -------------------------------------------------------------- STEVEN BEERS, individually and on behalf of all others similarly situated, Plaintiff v. MARS WRIGLEY CONFECTIONERY US, LLC, Defendant, Case No. 7:21-cv-00002-CS (S.D.N.Y., January 1, 2021) is a class action against the Defendant for violations of the New York General Business Law, negligent misrepresentation, fraud, and unjust enrichment. The case arises from the Defendant's alleged deceptive and misleading labeling and advertising of ice cream bars purporting to be covered in milk chocolate under the Dove brand. The relevant front label representations of the product include "Silky Smooth," "Dove Bar," "[Vanilla Ice Cream] with Milk Chocolate," several chunks of chocolate and a bar being dipped into milk chocolate. The representations of the product as "Milk Chocolate" is false, deceptive and misleading because the "chocolate" portion of the ice cream bar contains vegetable oil, ingredients consumers do not expect in chocolate. Consumers, including the Plaintiff, want chocolate in chocolate products to come from a real source such as cacao beans. The presence of chocolate is understood by consumers to mean a food does not contain vegetable oils, and has a material bearing on price and consumer acceptance of the product. Had the Plaintiff and class members known the truth, they would not have bought the product or would have paid less for them. Mars Wrigley Confectionery US, LLC is a manufacturer of chocolate, chewing gum, mints, and fruity confections, headquartered in Hackettstown, New Jersey. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd. Ste. 409 Great Neck, NY 11021-3104 Telephone: (516) 268-7080 Facsimile: (516) 234-7800 E-mail: spencer@spencersheehan.com MDL 2924: 2 Ranitidine Product Liability Suits Moved to S.D. Fla. ----------------------------------------------------------------- In the case, Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers two actions to the U.S. District Court for the Southern District of Florida and, with the consent of that court, assigned them to Judge Robin L. Rosenberg for coordinated or consolidated pretrial proceedings. The litigation consists of two actions pending in New Mexico and Wisconsin. Defendants' ranitidine-containing medications allegedly break down to form an alleged carcinogen known as N-Nitrosodimethylamine (NDMA). Plaintiffs allege Defendants were aware of this danger but continued to sell these medications to consumers. Defendants include GlaxoSmithKline,LLC, Boehringer Ingelheim Pharmaceuticals, Inc., Chattem Inc., Sanofi-Aventis U.S., LLC, Sanofi US Services Inc., Perrigo Research & Development Company, Lannett Company, Inc., Novitium Pharma LLC, Aurobindo Pharma USA, Inc., Amneal Pharmaceuticals, LLC, Glenmark Pharmaceuticals Inc., USA, Appco Pharma LLC, ANI Pharmaceuticals, Inc., Sandoz Inc., Apotex Corp., Dr. Reddy's Laboratories, Inc., Strides Pharma, Inc., Teligent, Inc., Costco Wholesale Corp., CVS Health Corp., CVS Pharmacy, Inc., The Kroger Co., Smith Food & Drug Centers, Inc., Fred Meyer, Inc., Target Corp., Walgreens Boots Alliance, Inc., Walgreens Co., Walmart Inc., and Pfizer Inc. A full-text copy of the Court's December 16, 2020 Transfer Order is available at https://bit.ly/2XmcDJL MDL 2931: Zvi v. Delta Dental Antitrust Row Moved to N.D. Cal. -------------------------------------------------------------- Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers the case, Ben Zvi, et al. v. Delta Dental of New York Inc., Case No. 20-cv-05628 (S.D. Cal., July 21, 2020), to the U.S. District Court for the Northern District of Illinois and, with the consent of that court, assigns it to Judge Elaine E. Bucklo for coordinated or consolidated pretrial proceedings. Delta Dental is a network of independent companies conducting business in all 50 states, the District of Columbia, and Puerto Rico. Each individual plan contracts with dental service providers to reimburse the providers for dental services provided to patients with Delta Dental insurance contracts. Plaintiff alleges the plan providers, who are meant to compete with each other, have agreed to allocate exclusive geographic markets through license agreements that limit and restrict competition outside of their respective territorial markets. A full-text copy of the Court's December 16, 2020 Transfer Order is available at https://bit.ly/399XT6q MDL 2967: 6 Narcolepsy Drug Antitrust Cases Moved to N.D. Cal. -------------------------------------------------------------- In the case, Xyrem Antitrust Litigation, MDL No. 2967, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring six actions to the U.S. District Court for the Northern District of California and, with the consent of that court, assigned them to Judge Lucy H. Koh for coordinated or consolidated pretrial proceedings. The litigation consists of six actions pending in California and New York. Defendant Jazz Pharmaceuticals allegedly engaged in anticompetitive schemes to delay generic entry, entered into reverse settlement agreements with Roxane, Amneal, Lupin, Par, Ranbaxy, Wockhardt, Watson and Mallinckrodt (generic manufacturers), agreeing to provide them substantial compensation in exchange for delaying the entry of the generic sodium oxybate into the market. Xyrem is a narcolepsy drug that accounted for over a billion dollars annually -- over 70% -- of the company's revenue. A full-text copy of the Court's December 16, 2020 Transfer Order is available at https://bit.ly/3hPt4HY MDL 2967: 9 Clearview Data Breach Suits Transferred to N.D. Ill. ---------------------------------------------------------------- In the case, Clearview AI Consumer Privacy Litigation, MDL No. 2967, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring nine actions to the U.S. District Court for the Northern District of Illinois and, with the consent of that court, assigned them to Judge Sharon Johnson Coleman for coordinated or consolidated pretrial proceedings. The litigation consists of actions pending in Illinois and New York. Clearview sells its facial recognition tools and has allegedly collected Plaintiffs' biometrics and shared them to Illinois-based entities without the requisite consent. A full-text copy of the Court's December 15, 2020 Transfer Order is available at https://bit.ly/35lzfyx MDL 2968: 7 Generali Insurance Disputes Transferred to S.D.N.Y. --------------------------------------------------------------- In the case, Generali COVID-19 Travel Insurance Litigation, MDL No. 2968, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring seven actions to the U.S. District Court for the Southern District of New York and, with the consent of that court, assigned them to Judge John G. Koeltl for coordinated or consolidated pretrial proceedings. The litigation consists of actions pending in Illinois, New York, Kansas, Ohio, Texas and South Carolina. The litigation involves common factual issues arising from Generali travel insurance coverage that consumers purchased alongside rental housing on vacation rental websites. Plaintiffs contend they were unable to travel during the COVID-19 pandemic and cancelled their trips. Generali allegedly has denied coverage under the policies. A full-text copy of the Court's December 15, 2020 Transfer Order is available at https://bit.ly/3hSSDI5 MICROSOFT CORP: Seeks Arbitration of Xbox Controllers Class Action ------------------------------------------------------------------ Andy Robinson, writing for VGC, reports that Microsoft has called for a class-action lawsuit over ‘drifting' Xbox controllers to be taken out of the courtroom, by compelling arbitration. The lawsuit, which was filed in April last year on behalf of several Xbox users, alleges that drifting issues -- which see controller movements incorrectly registered due to wear -- have been experienced by a large volume of Xbox owners across various controller models. The suit alleges that the drifting issues are caused by a design flaw in Xbox controllers, which it claims Microsoft is aware of and failed to disclose to customers. In October, an amended complaint was filed, adding an additional seven plaintiffs and demanding a jury trial to address the allegations against Microsoft. Now a new motion by Microsoft has called on the Washington Court to compel arbitration, which the corporation argues is in accordance with the Services Agreement the plaintiffs agreed to when they purchased their Xbox controllers. Arbitration would see the individual drifting disputes resolved outside of the courtroom by an impartial adjudicator, whose decision would be final and binding. According to Microsoft's motion, each plaintiff included in the class-action agreed to Microsoft's Services Agreement -- and thus, arbitration -- by using Xbox Live and the controllers themselves. "Plaintiffs repeatedly agreed not to bring a lawsuit like this in court," Microsoft wrote in its latest motion. "Instead, they assented to the Microsoft Services Agreement (‘MSA') and to warranty agreements in which they promised they would arbitrate disputes on an individual basis using a consumer-friendly process before the American Arbitration Association ("AAA"). The Federal Arbitration Act requires enforcing these agreements." Last year, a Washington federal judge granted arbitration for a similar ‘drifting' class-action against Nintendo, which could possibly set a precedent in the Xbox case. The original class-action claims that the Xbox drifting issue is caused by a controller defect related to the potentiometer within the joystick component -- the mechanism that translates the physical movement of the thumbstick into movement within software. It alleges that this component contains a known design flaw related to a grease-like lubricant, which causes resistive material scraped off a curved track to cause unwanted movement without input from the user. The lawsuit alleges that Microsoft is fully aware of the drifting defect after numerous online complaints received from its customers, and yet "failed to disclose the defect and routinely refuses to repair the controllers without charge when the defect manifests." It claims that the plaintiffs' experiences are not isolated and that "a large volume of consumers have been complaining about stick drift on Xbox One controllers since at least 2014." In October 2020 Microsoft confirmed it planned to extend the warranty of its Xbox Elite Series 2 controller, just a few weeks after the class-action lawsuit was amended to include the premium game controllers. Nintendo is arguing that Switch Joy-Con drift "isn't a real problem or hasn't caused anyone any inconvenience", according to US law firm CSK&D, which is working to pursue a class action lawsuit through the arbitration process. Last September, Nintendo was hit with a separate Joy-Con drift lawsuit which accused the company of planned obsolescence - a policy of producing goods designed to break down so that they need to be replaced. [GN] MIDDLE KENTUCKY: Campbell Seeks Conditional Class Status -------------------------------------------------------- In the class action lawsuit captioned as ALBERTA CAMPBELL, on behalf of herself and others similarly situated, v. MIDDLE KENTUCKY COMMUNITY ACTION PARTNERSHIP, INC., Case No. 5:20-cv-00222-REW-MAS (E.D. Ky.), the Plaintiff asks the Court to enter an order conditionally certifying the case as a collective action and permitting, under court supervision, notice to: "all 'Drivers' employed by the Defendant, Middle Kentucky Community Action Partnership, Inc., within the last three years." The Plaintiff seeks to facilitate notice to the limited class of "Transportation Drivers" who were non-exempt employees and who were not paid overtime compensation as required by the Fair Labor Standards Act ("FLSA"), as a result of the Defendant's failure to pay proper overtime compensation for all overtime hours worked. The Plaintiff worked for the Defendant as a Transportation Driver whose duties included driving a company-owned vehicle (less than 10,000 pounds and designed to carry eight or fewer passengers) to pick up clients in Kentucky, usually at their homes, and transport them to various other locations, which were typically medical appointments. The Defendant provides vocational training and habilitation services. A copy of the Plaintiff's motion to conditionally certify collective action dated Jan. 5, 2020 is available from PacerMonitor.com at https://bit.ly/3s1KJRG at no extra charge.[CC] The Plaintiff is represented by: J. Corey Asay, Esq. MORGAN & MORGAN, P.A. 333 W. Vine Street, Suite 1200 Lexington, KY 40507 Telephone: (859) 286-8368 Facsimile: (859) 286-8384 E-mail: CAsay@forthepeople.com MINDFINDERS INC: Class Certification Deadline Stayed in Dew Suit ---------------------------------------------------------------- In the class action lawsuit captioned as EBONY DEW and KRYSTAL OWENS, individually and on behalf of all others similarly situated, v. MINDFINDERS, INC., Case No. 1:20-cv-02930-BAH (D.D.C.), the Hon. Judge Beryl A. Howell entered an order granting the Plaintiffs' motion to stay class certification deadline. The Court finds that a stay will best conserve the parties' and the Court's resources. The Court further agrees with the plaintiffs that the defendant, which has not yet appeared or conferred with the plaintiffs, will not be prejudiced by the stay. A new deadline for class certification will be set at a later date as part of a discovery schedule. Local Civil Rule 23.1(b) provides that a plaintiff must move for class certification "[w]ithin 90 days after the filing of a complaint," but the "Court in the exercise of its discretion" may "extend[] this period[.]" As previously reported in class action reporter, the Plaintiffs contend that they had to attempt service of process numerous times before they were ultimately successful on December 18, 2020. Service here was particularly hard because it appears that corporate officers for the Defendant are all working remotely because of the pandemic and they did not respond to electronic communications. Because the Class and Collective Action Complaint was filed on October 13, 2020, without an extension, their motion for class certification is due January 11, 2021. This is their first request for an extension, and an extension will not affect any other deadlines. Further, no one has appeared yet on behalf of the Defendant and the parties have not been able to confer. Extending the class certification deadline would avoid piecemeal litigation and allow the parties to propose a holistic schedule for discovery and motion practice that builds in time for the discovery necessary to sustain a motion for class certification, the Plaintiff adds. Mindfinders was founded in 2001. The company's line of business includes providing management consulting services. Attorneys for the Plaintiffs and the Putative Collective and Classes, are: Sally J. Abrahamson, Esq. WERMAN SALAS P.C. 335 18th Pl. NE Washington, D.C. 20002 Telephone: (202) 744-1407 E-mail: sabrahamson@flsalaw.com - and - Michael D. Lore, Esq. MICHAEL D. LORE, P.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 782-5291 E-mail: mlore@lorefirm.com MOWI ASA: Faces Starr Suit Over Mowi's Salmon's Deceptive Labels ---------------------------------------------------------------- ABIGAIL STARR, on behalf of herself and all others similarly situated, Plaintiff v. MOWI ASA, MOWI USA, LLC, and MOWI DUCKTRAP, LLC, Defendants, Case No. 2:20-cv-00488-LEW (D. Me., December 31, 2020) is a class action against the Defendants for breach of express warranty and unjust enrichment and violations of the New York General Business Law and State Consumer Protection Statutes. The case arises from the Defendants' alleged false and deceptive marketing and sale of Mowi's smoked Atlantic salmon products. The products are labeled as "sustainably sourced" when in reality they are made from salmon industrially farmed at Mowi's facilities using unsustainable practices that are environmentally destructive and inhumane. Consumers, including the Plaintiff, relied on the products' "sustainably sourced" representation in their purchasing decision. They would not have purchased the products had they known the truth about Mowi's unsustainable industrial farming practices. Mowi ASA is a Norwegian seafood company with a principal place of business in Bergen, Norway. Mowi USA, LLC is a wholly-owned subsidiary of seafood company Mowi ASA, with a principal place of business in Florida. Mowi Ducktrap, LLC is a wholly-owned subsidiary of seafood company Mowi ASA, with a principal place of business in Maine. [BN] The Plaintiff is represented by: James B. Haddow, Esq. PETRUCELLI, MARTIN & HADDOW LLP Two Monument Square, Suite 900 Post Office Box 17555 Portland, ME 04112-8555 Telephone: (207) 775-0200 Facsimile: (207) 775-2360 E-mail: jhaddow@pmhlegal.com - and – Kim Richman, Esq. Jay Shooster, Esq. Margaret Sun, Esq. RICHMAN LAW AND POLICY 1 Bridge Street, Suite 83 Irvington, NY 10533 Telephone: (718) 705-4579 Facsimile: (718) 228-8522 E-mail: krichman@richmanlawpolicy.com jshooster@richmanlawpolicy.com msun@richmanlawpolicy.com NEW YORK, NY: Homeless Students' WiFi Suit Heads to Trial --------------------------------------------------------- Alex Nicoll, writing for Business Insider, reports that a lawsuit aimed at forcing New York City to provide WiFi for students in homeless shelters is moving forward to trial. US District Judge Alison Nathan ruled that the class-action suit brought by homeless parents and the Coalition of the Homeless would proceed to expedited discovery in preparation for a trial. "Without internet connectivity, homeless students are deprived of the means to attend classes," Nathan wrote in the opinion that accompanied the decision. "And because homeless children who lack internet access and reside in New York City shelters cannot attend school for as long as that deprivation exists, the City bears a duty, under the statute, to furnish them with the means necessary for them to attend school." Some homeless students are still unable to access the internet from a shelter more than nine months since Mayor Bill de Blasio first announced remote learning on March 15, 2020 at the start of the coronavirus pandemic lockdown. New York City schools have approximately 114,000 homeless students according to an Advocates for Children report cited by the judge. The city's original plan was to provide iPads with unlimited cellular data to students without access to WiFi, first partnering with T-Mobile. After students weren't able to access T-Mobile service in many shelters, the city switched to Verizon, but some students continued to be unable to connect to school. On October 26, 2020 Mayor de Blasio announced that the city would install WiFi in all shelters, but officials cautioned this wouldn't be complete until the summer of 2021. "It should come as no surprise that the City lacked any real legal basis to prevent this lawsuit from proceeding," said Susan Horwitz, supervising attorney of the education law project at the Legal Aid Society, wrote in a press release. "Despite months of pushing the City to address the root cause of the problem, City Hall continues to advance ineffective solutions while families in shelters suffer. We look forward to seeing all shelters equipped with working WiFi, far in advance of the city's stated goal of summer 2021." City officials said they are working to get WiFi to students in shelters. "The Court's decision indicates that the City has worked hard to provide internet connectivity to the plaintiffs and is continuing to do so," Nick Paolucci, the spokesperson of New York City's Law Department, wrote in a statement to Business Insider. "The City shifted to remote learning in the context of an unprecedented pandemic and we are working hard to address the needs of all students." [GN] NEW YORK: Bid for Expedited Discovery Schedule in E.G. Granted -------------------------------------------------------------- In the case, E.G., et al., Plaintiffs v. City of New York, et al., Defendants, Case No. 20-cv-9879 (AJN) (S.D.N.Y.), Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York granted the Plaintiffs' request to set an expedited discovery schedule and schedule an evidentiary hearing. The Court denied the Defendants' request that the Court dismisses the motion for a preliminary injunction on the present record. During the unprecedented COVID-19 pandemic, public schools in New York City have been largely closed since March to in-person learning. For all children, including the City's approximately 114,000 children who live in homeless shelters, education must be accessed virtually. Just like getting to brick and mortal schools requires reliable transportation, access to virtual school during the pandemic requires access to reliable internet. At the time the lawsuit was filed, however, almost none of the City's homeless shelters housing school-aged children had broadband WiFi internet installed. The Plaintiffs, parents of school-age children who live in homeless shelters and the Coalition for the Homeless, brought the putative class action, alleging that the Defendants' failure to provide adequate and reliable access to the internet has violated the students' rights under state and federal statutory and constitutional law to receive a sound basic education notwithstanding their residence in homeless shelters. The Plaintiffs have filed a motion for a preliminary injunction and seek expedited discovery and an evidentiary hearing on the motion. In their response to the Plaintiffs' preliminary injunction motion, the Defendants argue that the Plaintiffs had failed to state a claim on their federal and state constitutional and statutory arguments. At base, the City contends that it is meeting its state and federal law obligations by doing its best and working to resolve the issues through a variety of means, including now working expeditiously to install WiFi internet access in all homeless shelters. The Defendants ask the Court to resolve these preliminary legal arguments in advance of discovery and a hearing. The issue underlying the Plaintiffs' claim under New York Education Law Section 3209 is whether the Defendants have a duty to ensure that homeless students have the means necessary to access the internet when schooling is predominantly taking place remotely. The Defendants argue that they have satisfied that duty through their efforts to provide students with iPads that have unlimited cellular service and their efforts to troubleshoot and remedy the connectivity problems that some students reported shortly after the iPads were distributed. But the Plaintiffs claim that despite those efforts, their children, along with an as-yet-unascertained number of homeless students residing in shelters, continue to lack reliable access to the internet and that the City's plans for installation of WiFi are insufficiently expeditious to meet the statutory obligation. Judge Nathan holds that resolution of these factual disputes cannot be made before discovery and an evidentiary hearing. But at a minimum, the Plaintiffs' allegations are sufficient to state a claim. To the extent that the Defendants' efforts to date have failed to remedy the barriers that prevent homeless children from being able to participate in remote learning, the question is not whether those children are entitled to a particular accommodation but to any accommodation that meaningfully fixes the problems that have been identified. The Plaintiffs have adequately pled that notwithstanding the City's efforts, significant barriers to homeless students' education persist. The same holds true for the Plaintiffs' claim under Section 3209(7). The Judge finds that the Plaintiffs' Section 3209 claim survives the Defendants' legal arguments. The Plaintiffs have stated a claim that they are entitled to receive the means by which homeless students may attend school, and they have pled that, at least for some students, including the named Plaintiffs' children, the Defendants' efforts to date have not remedied their injury. As a result, the Judge rejects the Defendants' argument that the Plaintiffs' Section 3209 claim fails as a matter of law. Having determined that at least one of the Plaintiffs' claims survives, she need not reach the viability of the Plaintiffs' remaining claims at this juncture. Based on the foregoing, Judge Nathan denied the Defendants' request to deny the preliminary injunction motion based on the existing record. All of the remaining issues that must be resolved prior to the Court's determination of whether a preliminary injunction should issue--and, if so, what that injunction should look like--require discovery and an evidentiary hearing. The Judge, therefore, granted the Plaintiffs' request for expedited discovery on these and other disputed factual issues in advance of an evidentiary hearing. The parties will discuss with Magistrate Judge Freeman an appropriate schedule for expedited discovery and a proposed week for the Court to conduct an evidentiary hearing. The schedule put in place by Judge Freeman will control. As soon as the parties inform the Court of the proposed week to conduct the evidentiary hearing, the Court will confirm the specific date and time. The hearing will be conducted remotely using videoconferencing technology. A full-text copy of the Court's Dec. 30, 2020 Order is available at https://tinyurl.com/y2bn67g3 from Leagle.com. NORTHERN DYNASTY: Levi & Korsinsky Reminds of Feb. 2 Deadline ------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Northern Dynasty Minerals Ltd. ("Northern Dynasty") (NYSE: NAK) between December 21, 2017 and November 25, 2020. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Eastern District of New York. To get more information go to: https://www.zlk.com/pslra-1/northern-dynasty-minerals-ltd-loss-submission-form?prid=11959&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) the Company's Pebble Project was contrary to Clean Water Act guidelines and to the public interest; (2) the Company planned that the Pebble Project would be larger in duration and scope than conveyed to the public; (3) as a result, the Company's permit applications for the Pebble Project would be denied by the U.S. Army Corps of Engineers; and (4) as a result, Defendants' public statements were materially false and/or misleading at all relevant times. If you suffered a loss in Northern Dynasty you have until February 2, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] OPTIO SOLUTIONS: Anfibio FDCPA Suit Stayed Pending Arbitration Bid ------------------------------------------------------------------ In the case, ROSARIO ANFIBIO, on behalf of himself and all others similarly situated, Plaintiff v. OPTIO SOLUTIONS LLC, Defendant, Case No. 20-cv-11146-CCC-ESK (D.N.J.), Magistrate Judge Edward S. Kiel of the U.S. District Court for the District of New Jersey granted the Defendant's motion to stay discovery pending the resolution of its Motion to Dismiss and to compel arbitration. The complaint in the matter was filed on Aug. 23, 2020. The Plaintiff alleges that the Defendant violated the Fair Debt Collection Practices Act ("FDCPA") because the Defendant's dunning letter sent to the Plaintiff allegedly contained false and misleading statements. The Plaintiff also brings a putative class action on behalf of all other persons similarly situated. The Defendant filed its Motion to Dismiss on Sept. 21, 2020, arguing that the Plaintiff's claims are subject to arbitration because the lease for a motor vehicle, from which the alleged debt arose, contains an arbitration provision. It further argues that the class allegations should be stricken because the applicable arbitration provision mandates arbitration on an individual basis. The Plaintiff opposed the Motion to Dismiss, arguing that it should be denied because: (a) there is no evidence that the Defendant was "assigned" the right to arbitrate under the Lease; (b) the FDCPA claim is "independent" of the debt itself; and (c) the class action waiver only applies in the arbitration context. According to the Court's Opinion & Order, courts weigh a number of factors in deciding whether to grant a stay of discovery, including: (a) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (b) whether denial of the stay would create a "clear case of hardship or inequity"; (c) whether a stay would simplify the issues and the trial of the case; and (d) whether discovery is complete and/or a trial date has been set. The Defendant claims that all of the Plaintiff's claims are subject to an arbitration provision in the Lease. Applying the ruling in Klepper v. SLI, Inc., 45 Fed. App'x. 136 (3d Cir. 2002) to the matter, Magistrate Judge Kiel finds that the first and second factors weigh in favor of staying discovery pending the resolution of the Motion to Dismiss. While he cannot predict the ultimate disposition of the Motion to Dismiss, the Magistrate Judge can conclude that requiring the Defendant at this juncture to engage in discovery in this forum, without knowing whether it has the right to arbitrate the Plaintiff's claims, would present a clear tactical advantage to her. Proceeding with discovery before resolution of the Motion to Dismiss would also create a clear case of hardship and inequity for the Defendant, particularly in view of the additional complexities that defending a putative class action can entail. The third factor also weighs in favor of staying discovery. The Magistrate Judge holds that if the Motion to Dismiss is granted, the matter would no longer be before the Court and would be resolved through arbitration. Conversely, denying a stay and ordering discovery to proceed would be inefficient and unproductive were the Court to determine, ultimately, that the matter is subject to arbitration. Finally, the fourth factor weighs in favor of staying discovery. The fact discovery end date is July 30, 2021, the parties have not engaged in any significant discovery, and a trial date has not been scheduled. As such, the relative infancy of the matter, the lack of discovery yet conducted, and the absence of a scheduled trial support the entry of a stay of discovery. Accordingly, Magistrate Judge Kiel granted the Motion to Stay. The Clerk of the Court is directed to terminate the Motion to Stay. The parties are reminded of the telephone status conference scheduled for Feb. 16, 2021, at 11:30 a.m. The dial in number is 1-888-684-8852 and access code is 310-0383#. The parties will file a joint letter, at least three business days before the conference advising of the status of discovery, any pending motions, and any other issues to be addressed. A full-text copy of the Court's Dec. 30, 2020 Opinion & Order is available at https://tinyurl.com/y5s3ym9w from Leagle.com. PEACHTREE INVESTMENT: Peskin Suit Alleges Unlawful SCE Strategy --------------------------------------------------------------- WILLIAM R. PESKIN and MARK PERKINS, on behalf of themselves and all others similarly situated, Plaintiffs v. PEACHTREE INVESTMENT SOLUTIONS, LLC; DWAYNE PETERSON DAVIS; J. STEPHEN BUSH; OLD IVY CAPITAL PARTNERS, LLC; DANIEL S. CARBONARA; BRYAN CAVE LEIGHTON PAISNER LLP; JOHN PAUL BARRIE; TENNILLE & ASSOCIATES, INC.; JEAN H. ROBERTS, IN HER CAPACITY AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF DAVID R. ROBERTS; FOOTHILLS LAND CONSERVANCY, INC.; WILLIAM C. CLABOUGH, SR.; and WARREN AVERETT, LLC, Defendants, Case No. 1:21-cv-00002-SCJ (N.D. Ga., January 2, 2021) is a class action against the Defendants for violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, fraud, breach of fiduciary duty and disgorgement, aiding and abetting breaches of fiduciary duty, professional malpractice, negligence, negligent misrepresentation, and civil conspiracy. The case arises from the Defendants' implementation of the Syndicated Conservation Easement (SCE) Strategy to effect numerous conservation easement transactions that differed only in name, not in substance. The SCE Strategy was not properly implemented and was never intended to be as it was used by the Defendants to exploit for their own gain the tax deductions that could be generated from syndicated conservation easement transactions. The Defendants represented themselves as independent professionals and advisers who were helping to guide the Plaintiffs and the Class through very technical conservation easement transactions that would generate legal tax deductions for them. Unbeknownst to the Plaintiffs and the Class, the Defendants had preplanned and predetermined each step of the SCE Strategy to generate large but improper tax deductions. This racketeering enterprise directly and proximately injured the Plaintiffs and the Class by causing them to pay substantial fees and transaction costs, be exposed to interest and penalties from the Internal Revenue Service, and incur additional accounting and legal fees and expenses to deal with the IRS fallout. Peachtree Investment Solutions, LLC is an investment management company based in Atlanta, Georgia. Old Ivy Capital Partners, LLC is an investment company based in Atlanta, Georgia. Bryan Cave Leighton Paisner LLP is an international law firm headquartered in St. Louis, Missouri. Tennille & Associates, Inc. is a real estate firm with its principal place of business at 820 State Farm Road, Suite B, Boone, North Carolina. Foothills Land Conservancy, Inc. is a non-profit organization based in Rockford, Tennessee. Warren Averett, LLC is an accounting firm with its principal place of business at 2500 Acton Road, Suite 200, Birmingham, Alabama. [BN] The Plaintiffs are represented by: David R. Deary, Esq. W. Ralph Canada, Jr., Esq. Jeven R. Sloan, Esq. Donna Lee, 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 PLAINS MARKETING: Settlement Class Certified in Price Trust Suit ---------------------------------------------------------------- In the class action lawsuit captioned as Henry Price Trust, successor co-trustees Henry Price Bradley and Patricia Bradley Scott, on behalf of itself and all others similarly situated, v. Plains Marketing, L.P., Case No. 6:19-cv-00390-KEW (E.D. Okla.), the Hon. Judge Kimberly E. West entered an order: 1. granting preliminary approval of class action settlement; 2. certifying a Settlement Class defined as: "all persons or entities, except as specifically excluded below, who received proceeds payments from the Defendant Plains Marketing, L.P., or its designee on Plains' behalf, for oil and/or liquids proceeds from oil and/or gas wells located in the State of Oklahoma, or whose oil and/or liquids proceeds from oil and/or gas wells located in the State of Oklahoma were remitted to unclaimed property divisions by Plains, or its designee on Plains' behalf, dated between October 1, 2014, and October 31, 2020;" Excluded from the Settlement Class are: (1) agencies, departments, or instrumentalities of the United States of America or the State of Oklahoma; (2) Plains, its affiliates, affiliated predecessors, and their employees, officers, and directors; (3) persons or entities that Plaintiff's counsel are prohibited from representing under Rule 1.7 of the Oklahoma Rules of Professional Conduct; (4) the persons or entities identified on Exhibit 5 to the Settlement Agreement; and (5) officers of the Court; 3. appointing the Plaintiff Henry Price Trust, successor co- trustees Henry Price Bradley and Patricia Bradley Scott, as Class Representative; 4. appointing the Plaintiff's Counsel Reagan E. Bradford and Ryan K. Wilson as Co-Lead Class Counsel and James U. White, Jr. as Co-Lead Class Counsel; 5. preliminarily approving the form and content of the proposed Notice; 6. appointing JND Class Action Administration to act as Settlement Administrator and perform the associated responsibilities set forth in the Settlement Agreement; 7. appointing MidFirst Bank as the Escrow Agent; and 8. scheduling a Final Fairness Hearing on March 26, 2021; The Plaintiff alleges that the Defendant failed to pay statutory interest on payments made outside the time periods set forth in the Production Revenue Standards Act, 52 Okla. St. section 570.1 et seq. (the PRSA) for oil and liquids production proceeds from oil and gas wells in Oklahoma. On November 30, 2020, the Parties executed a Stipulation and Agreement of Settlement finalizing the terms of the Settlement. Plains Marketing operates as a midstream energy company. A copy of the Court's order dated Jan. 5, 2020 is available from PacerMonitor.com at https://bit.ly/3omsQuv at no extra charge.[CC] Class Counsel, are: Reagan E. Bradford, Esq. Ryan K. Wilson, Esq. BRADFORD & WILSON PLLC 431 W. Main Street, Suite D Oklahoma City, OK 73102 Telephone: (405) 698-2770 Facsimile: (405) 234-5506 E-mail: reagan@bradwil.com ryan@bradwil.com - and - James U. White, Jr., Esq. WHITE, COFFEY AND FITE, P.C. P.O. Box 54783 Oklahoma City, OK 73154 Telephone: (405) 842-7545 E-mail: jwhite@wcgflaw.com Counsel for the Defendant, are: Timothy J. Bomhoff, Esq. Patrick L. Stein, Esq. MCAFEE & TAFT Tenth Floor, Two Leadership Square 211 N. Robinson Avenue Oklahoma City, OK 73102-7103 Telephone: (405) 235-9621 Facsimile: (405) 235-0439 E-mail: tim.bomhoff@mcafeetaft.com patrick.stein@mcafeetaft.com POSTMATES INC: Immediato Wage & Hour Suit Goes to D. Massachusetts ------------------------------------------------------------------ The case styled DAMON IMMEDIATO, STEPHEN LEVINE, and ERIC WICKBERG, on behalf of themselves and all others similarly situated v. POSTMATES, INC., Case No. 2084-CV-02003H, was removed from the Superior Court of the Commonwealth of Massachusetts, Suffolk County, to the U.S. District Court for the District of Massachusetts on December 31, 2020. The Clerk of Court for the District of Massachusetts assigned Case No. 1:20-cv-12308 to the proceeding. The case arises from the Defendant's alleged violations of the Massachusetts General Laws including failure to reimburse the Plaintiffs and all others similarly situated couriers for business expenses, failure to pay minimum wage, and failure to pay earned sick time. Postmates, Inc. is an American company that offers local delivery of restaurant-prepared meals and other goods, with its headquarters in San Francisco, California. [BN] The Defendant is represented by: Joshua S. Lipshutz, Esq. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue N.W. Washington, DC 20036-5306 Telephone: (202) 955-8500 E-mail: JLipshutz@gibsondunn.com - and – Theane Evangelis, Esq. Dhananjay S. Manthripragada, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7000 E-mail: TEvangelis@gibsondunn.com DManthripragada@gibsondunn.com - and – Michele L. Maryott, Esq. GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612-4412 Telephone: (949) 451-3800 E-mail: MMaryott@gibsondunn.com QIWI PLC: Pomerantz Law Firm Reminds of February 9 Deadline ----------------------------------------------------------- Pomerantz LLP on Jan. 4 disclosed that a class action lawsuit has been filed against Qiwi plc ("Qiwi" or the "Company") (NASDAQ: QIWI) and certain of its officers. The class action, filed in the United States District Court for the Eastern District of New York, and docketed under 21-cv-00021, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Qiwi securities between March 28, 2019 and December 9, 2020, both dates inclusive (the "Class Period"). Plaintiff seeks to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Qiwi securities during the Class Period, you have until February 9, 2021 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. Qiwi, together with its subsidiaries, purports to operate electronic online payment systems primarily in Russia, Kazakhstan, Moldova, Belarus, Romania, the United Arab Emirates, and internationally. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements, and failed to disclose material adverse facts about the Company's business, operational, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose to investors that: (1) Qiwi's internal controls related to reporting and record-keeping were ineffective; (2) consequently, the Central Bank of Russia would impose a monetary fine upon the Company and impose restrictions upon the Company's ability to make payments to foreign merchants and transfer money to pre-paid cards; and (3) as a result, Defendants' public statements were materially false and/or misleading at all relevant times. On December 9, 2020, after the market closed, Qiwi filed a Form 6-K with the SEC, announcing that the Central Bank of Russia had imposed a fine of approximately $150,000 for deficient record-keeping and reporting, and suspended the Company's conduct of most types of payments to foreign merchants and money transfers to pre-paid cards from corporate accounts. On this news, Qiwi's ADS price fell $2.80 per share, or 20.6%, to close at $10.79 per share on December 10, 2020, damaging investors. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 www.pomerantzlaw.com [GN] QUANTUMSCAPE CORP: Bernstein Liebhard Probes Securities Claims -------------------------------------------------------------- Bernstein Liebhard, a nationally acclaimed investor rights law firm, is investigating potential securities fraud claims on behalf of shareholders of QuantumScape Corporation. ("QuantumScape" or the "Company") (NYSE: QS) resulting from allegations that QuantumScape might have issued misleading information to the investing public. If you purchased QuantumScape securities, and/or would like to discuss your legal rights and options please visit QS Shareholder Investigation or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. On January 4, 2021, an article was published on Seeking Alpha. That article pointed to a number of risks associated with QuantumScape's solid state batteries. These risk make QuantumScape's batteries "completely unacceptable for real world field electric vehicles." The article specifically stated that QuantumScape's battery's power meant it would "only last for 260 cycles or about 75,000 miles of aggressive driving." On this news, the price of QuantumScape's shares fell $34.49 or approximately 40.84% to close at $49.96 per share on January 4, 2021. If you purchased QuantumScape securities, and/or would like to discuss your legal rights and options please visit https://www.bernlieb.com/cases/quantumscapecorporation-qs-shareholder-class-action-lawsuit-stock-fraud-352/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. ATTORNEY ADVERTISING. (C) 2021 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. The lawyer responsible for this advertisement in the State of Connecticut is Michael S. Bigin. Prior results do not guarantee or predict a similar outcome with respect to any future matter. Contact Information Matthew E. Guarnero Bernstein Liebhard LLP https://www.bernlieb.com (877) 779-1414 MGuarnero@bernlieb.com [GN] QUANTUMSCAPE CORP: Wolf Haldenstein Investigates Securities Claims ------------------------------------------------------------------ Wolf Haldenstein Adler Freeman & Herz LLP on Jan. 4 disclosed that is has commenced an investigation of QuantumScape Corporation ("QuantumScape" or the "Company") (NASDAQ: QS) on behalf of investors concerning the Company's possible violations of federal securities laws. All investors who purchased the shares of QuantumScape Corporation and incurred losses are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. On January 4, 2021, Seeking Alpha published an article pointing to several risks with QuantumScape's solid state batteries that make it "completely unacceptable for real world field electric vehicles." Specifically, it stated that the battery's power means it "will only last for 260 cycles or about 75,000 miles of aggressive driving." As solid state batteries are temperature sensitive, "the power and cycle tests at 30 and 45 degrees above would have been significantly worse if run even a few degrees lower." On this news, the Company's stock price fell almost 40% during intraday trading on January 4, 2021. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss or join this impending action, or have any questions regarding your rights and interests in this ongoing situation, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735 or via e-mail at classmember@whafh.com. Contact: Wolf Haldenstein Adler Freeman & Herz LLP Kevin Cooper, Esq. Gregory Stone, Director of Case and Financial Analysis Email: gstone@whafh.com, kcooper@whafh.com or classmember@whafh.com Tel: (800) 575-0735 or (212) 545-4774 This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] QUDIAN INC: April 27 Proposed Settlement Fairness Hearing Set ------------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re Qudian Inc. Securities Litigation Master File No.: 1:17-cv-09741-JMF Related cases: 1:17-cv-09796-JMF 1:17-cv-09903-JMF 1:17-cv-09875-JMF 1:17-cv-09894-JMF SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons or entities that purchased or otherwise acquired Qudian Inc. ("Qudian") American Depositary Shares ("ADS") in or traceable to Qudian's initial public offering on or about October 18, 2017 (the "Class"). PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Class, except for certain persons and entities who are excluded from the Class as set forth in the full Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Plaintiffs in the Action have reached a proposed settlement of the Action for $8,500,000 (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on April 27, 2021, at 4:00 p.m., before the Honorable Jesse M. Furman in Courtroom 1105, United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants and the Releases specified and described in the Stipulation and Agreement of Settlement (the "Stipulation") dated November 13, 2020 (and in the Notice), should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Co-Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. In light of the ongoing pandemic the Court may choose to hold the Settlement Hearing telephonically or via videoconference, in which case, notice will be provided to the Class on the Court's docket and on the settlement website, www.QudianSecuritiesSettlement.com. If you are a member of the Class, your rights will be affected by the pending Settlement of the Action, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at In re Qudian Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 173114, Milwaukee, WI 53217, (877) 884-2550. Copies of the Notice and Claim Form can also be downloaded from the settlement website maintained by the Claims Administrator, www.QudianSecuritiesSettlement.com. If you are a member of the Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than April 14, 2021. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Class and wish to exclude yourself from the Class, you must submit a request for exclusion such that it is received no later than April 6, 2021, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Class, you will not be bound by any judgments or orders entered by the Court in the Action, and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Co-Lead Counsel's motion for attorneys' fees and reimbursement of expenses must be filed with the Court such that they are received no later than April 6, 2021, in accordance with the instructions set forth in the Notice. The Action is separate from three other class action lawsuits that were filed on behalf of Qudian ADS purchasers in (i) California Superior Court, San Mateo County, and (ii) New York Supreme Court, New York County, respectively (the "State Court Actions"). There has not been, and may not be, a recovery in the State Court Actions. Moreover, absent a valid exclusion request, approval of the Settlement in this Action will eliminate the ability of any member of the Class to assert Released Plaintiffs' Claims in the State Court Actions or in any other court or forum. You may not participate in both this Settlement and the State Court Actions. Please do not contact the Court, the Clerk's office, Qudian, or Qudian's counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Claims Administrator or Co-Lead Counsel. Requests for the Notice and Claim Form should be made to: In re Qudian Securities Litigation c/o A.B. Data, Ltd. P.O. Box 173114 Milwaukee, WI 53217 (877) 884-2550 www.QudianSecuritiesSettlement.com Inquiries, other than requests for the Notice and Claim Form, should be made to Co-Lead Counsel: Jack I. Zwick, Esq. 225 Broadway, Suite 1440 New York, NY 10007 (212) 385-1900 jack@zwickfirm.com Glancy Prongay & Murray LLP Attn: Jonathan M. Rotter, Esq. 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 (888) 773-9224 settlements@glancylaw.com By Order of the Court [GN] RESTAURANT BRANDS: Frank R. Cruz Reminds of Feb. 19 Deadline ------------------------------------------------------------ The Law Offices of Frank R. Cruz on Jan. 4 disclosed that a class action lawsuit has been filed on behalf of persons and entities that purchased or otherwise acquired Restaurant Brands International, Inc. ("Restaurant Brands" or the "Company") (NYSE: QSR) common stock between April 29, 2019 and October 28, 2019, inclusive (the "Class Period"). Restaurant Brands investors have until February 19, 2021 to file a lead plaintiff motion. Restaurant Brands is a Canadian corporation with over 27,000 Tim Hortons, Burger King, and Popeyes restaurants in more than 100 countries and U.S. territories. On October 28, 2019, the Company announced disappointing financial results for the third quarter ending September 30, 2019. Specifically, Restaurant Brands and its executives acknowledged that "results at Tim Hortons were not where we want them to be with global comparable sales dipping into negative territory" and admitted that "discounting [associated with Tims Rewards] is slightly more than offsetting the traffic levels," leading to "softness in sales." On this news, the Company's stock price fell $2.59, or 3.8%, to close at $65.86 per share on October 28, 2019, thereby injuring investors. The complaint filed 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: (1) Restaurant Brands' "Winning Together Plan" was failing to generate substantial, sustainable improvement within the Tim Hortons brand; (2) the "Tims Rewards" loyalty program was not generating sustainable revenue growth as increased customer traffic was not offsetting promotional discounting; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Restaurant Brands common stock during the Class Period, you may move the Court no later than February 19, 2021 to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you purchased Restaurant Brands common stock, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Frank R. Cruz, of The Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles, California 90067 at 310-914-5007, by email to info@frankcruzlaw.com, or visit our website at www.frankcruzlaw.com. If you inquire by email please include your mailing address, telephone number, and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: The Law Offices of Frank R. Cruz, Los Angeles Frank R. Cruz, 310-914-5007 fcruz@frankcruzlaw.com www.frankcruzlaw.com [GN] RESTAURANT BRANDS: Howard G. Smith Reminds of Feb. 19 Deadline -------------------------------------------------------------- Law Offices of Howard G. Smith on Jan. 4 disclosed that a class action lawsuit has been filed on behalf of investors who purchased Restaurant Brands International, Inc. ("Restaurant Brands" or the "Company") (NYSE: QSR) common stock between April 29, 2019 and October 28, 2019, inclusive (the "Class Period"). Restaurant Brands investors have until February 19, 2021 to file a lead plaintiff motion. Investors suffering losses on their Restaurant Brands investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. Restaurant Brands is a Canadian corporation with over 27,000 Tim Hortons, Burger King, and Popeyes restaurants in more than 100 countries and U.S. territories. On October 28, 2019, the Company announced disappointing financial results for the third quarter ending September 30, 2019. Specifically, Restaurant Brands and its executives acknowledged that "results at Tim Hortons were not where we want them to be with global comparable sales dipping into negative territory" and admitted that "discounting [associated with Tims Rewards] is slightly more than offsetting the traffic levels," leading to "softness in sales." On this news, the Company's stock price fell $2.59, or 3.8%, to close at $65.86 per share on October 28, 2019, thereby injuring investors. The complaint filed 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: (1) Restaurant Brands' "Winning Together Plan" was failing to generate substantial, sustainable improvement within the Tim Hortons brand; (2) the "Tims Rewards" loyalty program was not generating sustainable revenue growth as increased customer traffic was not offsetting promotional discounting; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Restaurant Brands common stock, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com www.howardsmithlaw.com [GN] RESTAURANT BRANDS: Portnoy Law Firm Announces Class Action Filing ----------------------------------------------------------------- The Portnoy Law Firm advises investors that a class action lawsuit has been filed on behalf of Restaurant Brands, International, Inc. ("Restaurant Brands" or "the Company") (NYSE: QSR) investors that acquired securities between April 29, 2019 and October 28, 2019. Investors are encouraged to contact attorney Lesley F. Portnoy, to determine eligibility to participate in this action, by phone 310-692-8883 or email, or click here https://portnoylaw.com/Restaurant-Brands/ to join the case. On October 28, 2019, the Company announced disappointing financial results for the third quarter ending September 30, 2019. Specifically, Restaurant Brands and its executives acknowledged that "results at Tim Hortons were not where we want them to be with global comparable sales dipping into negative territory" and admitted that "discounting [associated with Tims Rewards] is slightly more than offsetting the traffic levels," leading to "softness in sales." On this news, the Company's stock price fell $2.59, or 3.8%, to close at $65.86 per share on October 28, 2019, thereby injuring investors. The complaint filed 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: (1) Restaurant Brands' "Winning Together Plan" was failing to generate substantial, sustainable improvement within the Tim Hortons brand; (2) the "Tims Rewards" loyalty program was not generating sustainable revenue growth as increased customer traffic was not offsetting promotional discounting; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. Please visit our website to review more information and submit your transaction information. The Portnoy Law Firm represents investors in pursuing claims arising from corporate wrongdoing. The Firm's founding partner has recovered over $5.5 billion for aggrieved investors. Attorney advertising. Prior results do not guarantee similar outcomes. Lesley F. Portnoy, Esq. Admitted CA and NY Bar lesley@portnoylaw.com 310-692-8883 www.portnoylaw.com [GN] SOLARWINDS CORP: Rosen Law Firm Files Securities Class Action ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Jan. 4 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of SolarWinds Corporation (NYSE: SWI) between February 24, 2020 and December 15, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for SolarWinds investors under the federal securities laws. To join the SolarWinds class action, go http://www.rosenlegal.com/cases-register-2012.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) since mid-2020, SolarWinds Orion monitoring products had a vulnerability that allowed hackers to compromise the server upon which the products ran; (2) SolarWinds' update server had an easily accessible password of ‘solarwinds123'; (3) consequently, SolarWinds' customers, including, among others, the Federal Government, Microsoft, Cisco, and Nvidia, would be vulnerable to hacks; (4) as a result, the Company would suffer significant reputational harm; and (5) as a result, Defendants' statements about SolarWinds's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 5, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-2012.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40thFloor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] SOLARWINDS CORP: Schall Law Firm Announces Class Action Filing -------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Jan. 4 announced the filing of a class action lawsuit against SolarWinds Corporation ("SolarWinds" or "the Company") (NYSE: SWI) for violations of §§10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's securities between February 24, 2020 and December 15, 2020, inclusive (the "Class Period"), are encouraged to contact the firm before March 5, 2021. If you are a shareholder who suffered a loss, click here to participate. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. SolarWinds' Orion monitoring product suffered from a vulnerability since the middle of 2020 that allowed hackers to force access to servers running the compromised software. The Company's update server was not adequately secured, for example, its password was "solarwinds123." The Company's customers, including Microsoft, the Federal government, and others were left vulnerable to hackers. This vulnerability and subsequent hacks of these organizations led to severe reputational harm for the Company. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about SolarWinds, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] SOLARWINDS CORPORATION: Bremer Sues Over 8% Drop in Share Price --------------------------------------------------------------- TIMOTHY BREMER, individually and on behalf of all others similarly situated, Plaintiff v. SOLARWINDS CORPORATION; KEVIN B. THOMPSON; and J. BARTON KALSU, Defendants, Case No. 1:21-cv-00002 (W.D. Tex., Jan. 4, 2021) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded SolarWinds securities from February 24, 2020 through December 15, 2020, inclusive, seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that the Defendants misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations, and prospects, which were known to the Defendants or recklessly disregarded by them. Specifically, the Defendants made false and misleading statements and failed to disclose that: (1) since mid-2020, SolarWinds Orion monitoring products had a vulnerability that allowed hackers to compromise the server upon which the products ran; (2) SolarWinds' update server had an easily accessible password of 'solarwinds123'; (3) consequently, SolarWinds' customers, including, among others, the Federal Government, Microsoft, Cisco, and Nvidia, would be vulnerable to hacks; (4) as a result, the Company would suffer significant reputational harm; and (5) as a result, the Defendants' statements about SolarWinds's business, operations and prospects were materially false and misleading and lacked a reasonable basis at all relevant times. On December 15, 2020, Reuters published an article stating that, last year, security researcher Vinoth Kumar "alerted the company that anyone could access SolarWinds' update server by using the password 'solarwinds123.'" The article also disclosed that, according to Kyle Hanslovan, the cofounder of Maryland-based cybersecurity company Huntress, "days after SolarWinds realized their software had been compromised, the malicious updates were still available for download." On this news, the Company's shares fell $1.56 per share or 8% to close at $18.06 per share on December 15, 2020, damaging investors. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. SolarWinds Corporation designs and develops information technology management software. The Company offers solutions such as network performance monitoring, configuration, virtualization, database management, hosted logs, security, and configuration. [BN] The Plaintiff is represented by: L. Kirstine Rogers, Esq. Stuart L. Cochran, Esq. Barden M. Wayne, Esq. STECKLER WAYNE COCHRAN PLLC 12720 Hillcrest Rd, Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: krogers@swclaw.com stuart@swclaw.com braden@swclaw.com -and- Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com SP0N INC: Faces Sedaghatfar Suit Over Unsolicited Text Messages --------------------------------------------------------------- The case, ELIZA SEDAGHATFAR, individually, and on behalf of all others similarly situated, Plaintiff v. SP0N, INC., and DOES 1 through 10, inclusive, Defendants, Case No. 2:20-cv-11703 (C.D. Cal., December 29, 2020) arises from the Defendants' alleged negligent and willful violations of the Telephone Consumer Protection Act. The Plaintiff claims that she received two unsolicited text messages on her cellular telephone number ending in -6811 from the Defendant on or about May 31, 2020. In an attempt to promote its services, the Defendant allegedly transmitted unsolicited text messages by using an "automatic telephone dialing system" (ATDS) without obtaining the Plaintiff and other similarly situated persons' "prior express consent" to receive such telemarketing text messages using ATDS. Moreover, the Plaintiff's cellular telephone number ending in -6811 has been on the National Do-Not-Call Registry well over 30 days prior to the Defendant's initial call. As a result of the Defendant's unsolicited text messages, the Plaintiff was harmed and suffered damages for invading his privacy and causing him to incur certain charges or reduced telephone time for which he had previously paid. The Plaintiff seeks an injunctive relief prohibiting such unlawful conduct of the Defendant in the future, statutory and treble damages, and other relief that the Court deems just and proper. SP0N, Inc. is a software development company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com SPLUNK INC: Rosen Law Firm Reminds of February 2 Deadline --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Splunk Inc. (NASDAQ: SPLK) between October 21, 2020 and December 2, 2020, inclusive (the "Class Period"), of the important February 2, 2021 lead plaintiff deadline in the securities class action. The lawsuit seeks to recover damages for Splunk investors under the federal securities laws. To join the Splunk class action, go to http://www.rosenlegal.com/cases-register-2000.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Splunk was not closing deals with its largest customers in the third fiscal quarter of 2021; (2) Splunk was not hitting the financial targets it had previously announced; and (3) as a result of the foregoing, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 2, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-2000.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] STARBUCKS CORP: Store Managers' Suit to Proceed in Federal Court ---------------------------------------------------------------- Martina Barash, writing for Bloomberg Law, reports that a store managers' proposed class action against Starbucks Corp. to reimburse mobile phone costs belongs in federal court because the amount in controversy plausibly exceeds $5 million, a federal court in California ruled. Starbucks' business records, two employees' testimony about their cell phone bills, and an estimated 25% attorneys' fee combined to make the company's estimates of the amount in controversy -- either $7,381,375 or $5,058,394 -- reasonably possible, Judge James Donato said Dec. 31 for the U.S. District Court for the Northern District of California. [GN] THEVEGASPACKAGE.COM: Fisher "TCPA" Suit Seeks to Certify Class -------------------------------------------------------------- In the class action lawsuit captioned as NICK FISHER, individually and on behalf of all others similarly situated, v. THEVEGASPACKAGE.COM, INC., a Nevada corporation, and DOUGLAS DOUGLAS, an individual, Case No. 2:19-cv-01613-JAD-VCF (D. Nev.), the Plaintiff asks the Court to enter an order: 1. certifying an Autodialed No Consent Class consisting of: "all persons in the United States who from September 19, 2015 to the date notice is sent to the Class: (1) the Defendants, or a third person acting on behalf of the Defendants, called; (2) on the person's cellular telephone; (3) for the purpose of selling Vegas Package's products and services; (4) using an autodialer as defined in the TCPA; and (4) for whom Defendants claim they obtained prior express consent in the same manner as the Defendants claims they supposedly obtained prior express consent to call the Plaintiff;" 2. appointing Patrick H. Peluso and Stephen A. Klein of Woodrow & Peluso, LLC as Class Counsel; 3. appointing himself as Class Representative, and granting himself to leave to conduct limited class discovery; and 4. granting award such additional relief as it deems necessary, reasonable, and just. This case challenges the Defendants' serial violations of the Telephone Consumer Protection Act ("TCPA") -- specifically, the TCPA's bar against placing calls using an automatic telephone dialing system to cellular telephones without first obtaining prior express consent. The Plaintiff filed his class action complaint on September 19, 2019. The Defendant Vegas Package is a corporation incorporated and existing under the laws of the State of Nevada. Defendant Douglas is the president and registered agent of Vegas Package. A copy of the Plaintiff's motion to certify class dated Jan. 5, 2020 is available from PacerMonitor.com at http://bit.ly/3rVpEs1at no extra charge.[CC] Attorneys for the Plaintiff Nick Fisher and the Class, are: Marc P. Cook, Esq. COOK & KELESIS, LTD. 517 S. 9th St. Las Vegas, NV 89101 Telephone: (702) 737-7702 Facsimile: (702) 737-7712 E-mail: law@bckltd.com - and - Stephen A. Klein, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Telephone: (720) 907-4654 Facsimile: (303) 927-0809 E-mail: sklein@woodrowpeluso.com TIVITY HEALTH: March 1 Class Action Opt-Out Deadline Set -------------------------------------------------------- UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ERIC WEINER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. TIVITY HEALTH, INC., et al., Defendants. Case No.: 3:17-cv-01469 Chief Judge Crenshaw Magistrate Judge Newbern ATTENTION PURCHASERS OF TIVITY COMMON STOCK BETWEEN MARCH 6, 2017 AND NOVEMBER 6, 2017 SUMMARY NOTICE OF PENDENCY OF CLASS ACTION TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF TIVITY HEALTH, INC. ("TIVITY") BETWEEN MARCH 6, 2017 AND NOVEMBER 6, 2017, INCLUSIVE, AND WHO HAVE BEEN DAMAGED THEREBY (THE "CLASS" and "CLASS PERIOD"). YOU ARE HEREBY NOTIFIED THAT A CLASS HAS BEEN CERTIFIED IN PENDING LITIGATION THAT MAY AFFECT YOUR RIGHTS. If you are a member of the Class described above, your rights may be affected by the lawsuit referred to as Weiner v. Tivity Health, Inc., No. 3:17-cv-01469, which is now pending before the United States District Court for the Middle District of Tennessee, Nashville Division (the "Court") (the "Action"), brought by Lead Plaintiff and Class Representative Oklahoma Firefighters Pension and Retirement System on behalf of itself and others similarly situated against Tivity and its current or former officers, Donato Tramuto, Glenn Hargreaves, and Adam Holland (collectively, "Defendants"). The Court determined that the Action may proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. You may be a member of the Class. Excluded from the Class are Defendants Tivity, Donato Tramuto, Glenn Hargreaves, Adam Holland, the officers and directors of Tivity during the relevant period, as well as members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest. This Summary Notice is not an expression of any opinion by the Court with respect to the merits of the claims or the defenses asserted in the Action. This Summary Notice is to advise you of the pendency of this Action and of your rights therein. If you have not yet received a Postcard Notice by mail, please contact us in writing: Tivity Securities Litigation c/o Epiq Class Action & Claims Solutions, Inc. PO Box 3679 Portland, OR 97208-3679 www.TivitySecuritiesLitigation.com 1 (877) 202-7202 If you fall within the definition of the Class set forth above, you are a member of the Class. IF YOU WISH TO REMAIN A MEMBER OF THE CLASS, YOU DO NOT NEED TO DO ANYTHING AT THIS TIME. If you wish to be excluded from the Class, you must send a request for exclusion to Tivity Securities Litigation, c/o Epiq Class Action & Claims Solutions, Inc., PO Box 3679, Portland, OR 97208-3679 postmarked no later than March 1, 2021. There are specific requirements for requesting exclusion that are set forth in the detailed Notice of Pendency of Class Action, which is available at www.TivitySecuritiesLitigation.com. In addition, inquiries regarding this litigation may be addressed to counsel for the Class: Cohen Milstein Sellers & Toll PLLC Daniel S. Sommers Christina D. Saler Josh Handelsman 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005-3934 Telephone: (202) 408-4600 Fax: (202) 408-4699 TivityClassCounsel@cohenmilstein.com PLEASE DO NOT CALL THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Dated: January 4, 2021 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE http://www.TivitySecuritiesLitigation.com[GN] TUMINO'S TOWING: Kiley Suit Remanded to New Jersey Superior Court ----------------------------------------------------------------- District Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey grants the Plaintiff's motion to remand to the lawsuit captioned as SEAN KILEY, on behalf of himself and all other similarly situated persons v. TUMINO'S TOWING, INC., et al., Case No. 18-3165 (D. N.J.). The Plaintiff filed the putative class action in New Jersey state court to recover damages and injunctive relief for the Defendants' allegedly unlawful and predatory towing practices. The Plaintiff alleges that the Defendants towed his car at the request of Ridgefield Park law enforcement due to a parking violation, without his consent. The Defendants took the Plaintiff's car to a Tumino's Towing storage facility. When the Plaintiff went to retrieve his car, Tumino's Towing provided him with an invoice for charges related to the towing. The Plaintiff paid the full amount on the invoice. He alleges that certain of the fees and charges he paid violate multiple New Jersey consumer protection laws and regulations. The Plaintiff initially filed suit in New Jersey state court individually and on behalf of a putative class of individuals whose motor vehicles were non-consensually towed by Defendants from a location in New Jersey, not as a result of an accident, and who were provided a written towing invoice the same or similar to that used in the transaction with Plaintiff. The Defendants removed the matter to the Court. On April 4, 2018, the Plaintiff filed a motion to remand on the basis of Class Action Fairness Act's jurisdictional exceptions, or in the alternative, for the Court to permit jurisdictional discovery. Judge Steven C. Mannion, U.S. Magistrate Judge for the District of New Jersey, denied the Plaintiff's motion to remand on June 26, 2018, but granted his request for limited discovery. At the outset, Judge Mannion determined that the case qualifies for federal subject matter jurisdiction under CAFA's jurisdictional prerequisites. Judge Mannion further stated that the Plaintiff failed to show that an exception to CAFA jurisdiction applies. Judge Mannion, however, concluded that more information regarding the class members' citizenship will assist the Court in determining whether remand is proper. Consequently, he ordered limited jurisdictional discovery to allow Mr. Kiley to determine what percentage of the putative class members are domiciled in New Jersey. After the parties engaged in this limited discovery, the Plaintiff filed a renewed motion to remand. The Plaintiff maintains that the case must be remanded because of the mandatory home state exception. He contends that because approximately 11,000 class members are New Jersey citizens, based on their license plates, he easily satisfies the mandatory home state exception. The Court concludes that the Plaintiff establishes, by a preponderance of the evidence, that two-thirds of the putative class are citizens of New Jersey such that the mandatory home state exception applies. Even if the Plaintiff failed to establish that two-thirds of the proposed class members were not New Jersey citizens, remand would still be appropriate based on the discretionary home state exception, according to the Court's Opinion & Order. Judge Vazquez opines that even if the mandatory home state exception did not apply, the Court would still exercise its discretion under 28 U.S.C. Section 1332(d)(3)) and remand the matter. The Plaintiff also argues that he is entitled to an award of attorney's fees and costs in connection with the motion for remand. Given the fact that Judge Mannion initially determined that the Defendants demonstrated that the Court had jurisdiction under CAFA and jurisdictional discovery was necessary, the Court cannot conclude that the Defendants' lacked an objectively reasonable basis for seeking removal. Accordingly, it will not award the Plaintiff attorney's fees pursuant to 28 U.S.C. Section 1447(c). Therefore, for the stated reasons, and for good cause shown, the Plaintiff's motion to remand is granted and the matter is remanded to the Superior Court of New Jersey, Law Division, Union County. The Plaintiff's motion for fees is denied. The Clerk of the Court is directed to close the matter. A full-text copy of the Court's Opinion & Order dated Dec. 28, 2020, is available at https://tinyurl.com/y7mbhlsq from Leagle.com. TWITTER INC: Faces Securities Class Action From Shareholders ------------------------------------------------------------ Jody Godoy, writing for Reuters, reports that this year will see the U.S. Supreme Court consider an important issue regarding shareholder plaintiffs, while lower courts will consider challenges to both new and longstanding Securities and Exchange Commission rules and Twitter is set to battle with shareholders in a rare securities class action trial. [GN] UNITED STATES: Deaton Sues Over Misclassification of XRP Currency ----------------------------------------------------------------- JOHN DEATON, JORDAN DEATON, JAMES LAMONTE, TYLER LAMONTE, MYA LAMONTE, MITCHELL MCKENNA, KRISTIANA WARNER, on behalf of themselves and all others similarly situated, Plaintiffs v. ELAD ROISMAN AS ACTING SEC CHAIRMAIN and U.S. SECURITIES & EXCHANGE COMMISSION, Defendant, Case No. 1:21-cv-00001 (D.R.I., January 1, 2021) is a class action against the Defendant for its failure to comply with its mandate to protect innocent third-party investors. According to the complaint, the U.S. Securities & Exchange Commission (SEC), headed by Jay Clayton, filed an enforcement action against Ripple Labs, its chief executive officer (CEO) Brad Garlinghouse, and co-founder Chris Larsen, alleging that from 2013 to the present, Ripple has and continues to sell unregistered securities with the Digital Asset XRP virtual currency. The SEC's action declares the Digital Asset XRP as an unregistered security which caused several investors, including the Plaintiffs, to lose multi-million investments. The Plaintiffs seek to amend the Defendant's complaint against Ripple to exclude present day XRP, purchased by investors with no connection to Ripple or its executives. U.S. Securities and Exchange Commission is an agency of the United States Government, headquartered in Washington, D.C. [BN] The Plaintiffs are represented by: John Deaton, Esq. DEATON LAW FIRM 450 North Broadway East Providence, RI 02914 Telephone: (401) 351-6400 Facsimile: (401) 351-6401 E-mail: All-Deaton@deatonlawfirm.com VIVINT SOLAR: Securities Suit Transferred From New York to Utah --------------------------------------------------------------- Judge Frederic Block of the U.S. District Court for the Eastern District of New York transferred the case, In re Vivint Solar, Inc. Securities Litigation, Case No. 1:19-cv-05777 (FB) (CLP) (E.D. N.Y.), to the U.S. District Court for the District of Utah. In the putative class action, the Plaintiffs allege that Defendant Vivint and certain of its officers and directors, violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission Rule 10b-5. All the Defendants move, pursuant to 28 U.S.C. Section 1404(a), to transfer the action to the District of Utah. Vivint is a residential solar energy provider that designs, installs, and maintains solar energy systems. The Plaintiffs' Amended Complaint alleges that Vivint Solar engaged in widespread deceptive, fraudulent, and unethical sales practices. These practices allegedly produced numerous lawsuits by aggrieved customers and investigations by state attorneys general that were not disclosed to investors. The Plaintiffs allege that based on that and other undisclosed negative information, Vivint's share price dropped 4.6 % during a two-day trading period in 2019. Broadly, they claim that the Defendants' knowledge or reckless disregard of the deceptive sales practices and resulting litigation rendered certain statements in Vivint's financial statements false or misleading. Vivint commenced operations in 2011. The Company currently occupies approximately 150,000 square feet of office space in Lehi, Utah, under a lease that expires in 2031. Both Individual Defendants, David Bywater and Dana Russell, reside in Utah and work out of the Company's Lehi, Utah office. Five employees named in the Plaintiff's Amended Complaint--Chance Allred, Paul Dickson, Jeremy Sabin, Nicholas Hansen, and Tyler Anderson--work or reside in Utah. The Company prepared the reports and public filings discussed in the Amended Complaint in Utah. Moreover, none of the Vivint personnel responsible for preparing and drafting its financial disclosures or other investor communications are located in New York. The records and documents relating to Vivint's internal business procedures, financial reports, and other investor communications are located at the Company's offices in Utah. Judge Block notes that the case involves non-New York Plaintiffs and Utah-based Defendants. The case is focused on conduct that occurred in Utah. Most of the witnesses and documents are in the District of Utah. Having considered the underlying facts and the relevant factors, the Judge is persuaded the Defendants have made the required "clear-cut showing" such that transfer to the District of Utah is warranted. Therefore, Judge Block granted the Defendants' motion. The Clerk is directed to transfer the case, including all actions consolidated thereunder, to the District of Utah. A full-text copy of the Court's Dec. 30, 2020 Memorandum & Order is available at https://tinyurl.com/yyxnxnun from Leagle.com. W. Scott Holleman -- holleman@bespc.com -- Bragar Eagel & Squire, P.C., in New York City, for the Plaintiff. Kevin M. McDonough -- kevin.mcdonough@lw.com -- Latham & Watkins LLP, New York City, for the Defendant. VSL PHARMACEUTICALS: Maryland Court Narrows Claims in Starr Suit ---------------------------------------------------------------- The U.S. District Court for the District of Maryland granted in part and denied in part the Defendants' motion to dismiss the lawsuit entitled DAVID STARR, SANDI COOK, BERNADETTE MAVRIKOS, EDWARD QUIAMBAO, JAMES TETTENHORST, JEREMY HANSEN, KRISTA KARO, ARLENE REED-COSSAIRT, PETER STAVROS, SCOTT OFFUTT, HEATHER FARKAS and STACEY HOLZ, on behalf of themselves and all others similarly situated v. VSL PHARMACEUTICALS, INC., LEADIANT BIOSCIENCES, INC., f/k/a Sigma-Tau Pharmaceuticals, Inc., and ALFASIGMA USA, INC., Case No. TDC-19-2173 (D. Md.). The Motion is granted as to the claims in Count 2 (breach of express warranty) asserted under Tennessee and Michigan law. The Motion is granted as to Counts 5, 6, 7, 9, 10, and 16, consisting of the California, New Jersey, Michigan, and Idaho statutory consumer protection claims. It is also granted as to the Florida and Kentucky statutory consumer protection claims in Counts 14, 15, and 17 against Leadiant only. The Motion will be otherwise denied. The case is the latest in a long-running intellectual property dispute between former business partners Claudio De Simone and VSL as to who has rightful ownership of a proprietary probiotic formulation ("De Simone Formulation") used in a product sold for many years under the name "VSL#3," a trademark owned by VSL. In prior litigation, that issue was put to a jury which, in November 2018, returned a verdict in favor of De Simone and his new business venture, ExeGi Pharma, LLC. On June 20, 2019, the Court issued a Permanent Injunction against Leadiant and Alfasigma, the companies that have marketed and distributed VSL#3 on behalf of VSL, enjoining them from (1) stating or suggesting in VSL#3 promotional materials directed at United States consumers that the present version of VSL#3 produced in Italy ("Italian VSL#3" or "the new VSL#3") continues to contain the De Simone Formulation, including by stating that VSL#3 contains the "original proprietary blend" or the "same mix in the same proportions" as the earlier version of VSL#3; and (2) "citing to or referring to any clinical studies performed on the De Simone Formulation or earlier versions of VSL#3 as relevant or applicable to Italian VSL#3." Between June 2016 and the present, each of the named Plaintiffs routinely purchased the new VSL#3 and assert that, in doing so, they relied on the packaging and marketing materials, which convey the message that the new version of VSL#3 is the same as the version produced with the De Simone Formulation. Many also relied on the recommendation of their doctors. Each Plaintiff, thus, believed that the new VSL#3 continued to contain the De Simone Formulation. On July 23, 2019, the Plaintiffs filed the class action lawsuit. They have filed the class action lawsuit against Defendants VSL Leadiant, and Alfasigma alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"); breach of express warranty, in violation of the Uniform Commercial Code ("UCC"); unjust enrichment; and violations of various state consumer protection statutes. The Defendants have filed a consolidated Motion to Dismiss, seeking dismissal of the entirety of the Plaintiffs' Amended Complaint. The Plaintiffs oppose the Motion. In their Amended Complaint, the Plaintiffs assert 19 causes of action, numbered as follows: (1) violations of RICO, 18 U.S.C. Sections 1962(c)-(d); (2) breach of express warranty, in violation of the UCC; (3) unjust enrichment; (4) a violation of the Massachusetts Consumer Protection Act; (5) a violation of the California Consumer Legal Remedies Act; (6) a violation of the California False Advertising Law; (7) a violation of the California Unfair Competition Law; (8) a violation of the Texas Deceptive Trade Practices Act; (9) a violation of the New Jersey Consumer Fraud Act; (10) a violation of the Michigan Consumer Protection Act; (11) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; (12) a violation of the Illinois Uniform Deceptive Trade Practices Act; (13) a violation of the Washington Consumer Protection Act; (14) a violation of the Florida Deceptive and Unfair Trade Practices Act; (15) violations of Florida false advertising laws; (16) a violation of the Idaho Consumer Protection Act; (17) a violation of the Kentucky Consumer Protection Act; (18) a violation of the Tennessee Consumer Protection Act; and (19) a violation of the Wisconsin Deceptive Trade Practices Act. In Count 1, the Plaintiffs allege that Defendants engaged in a civil violation of RICO and a RICO conspiracy, in violation of 18 U.S.C. Section 1962(c) and (d). The Defendants assert that the allegations are insufficient to support a plausible RICO claim on several grounds, including that the Amended Complaint does not plausibly allege (1) acts of racketeering activity, specifically, either acts of mail fraud or wire fraud, or (2) that the Defendants acted with fraudulent intent. District Judge Theodore D. Chuang opines that the Plaintiffs have adequately and specifically alleged that the Defendants engaged in a scheme to deceive consumers by selling the new VSL#3 through the use false representations that it was the same as the prior version that used the De Simone Formulation, and they sought to obtain money in the form of increased profits from sales. These allegations are sufficient on the element of a scheme to defraud, Judge Chuang states. Hence, the Defendants' Motion will be denied as to the substantive RICO claim. The Defendants seek dismissal of the breach of express warranty claim on the grounds that the Plaintiffs have failed adequately to allege that (1) there was an express "affirmation of fact" or "promise"; (2) there was privity between Plaintiffs and Defendants; and (3) there was reliance upon the promise. In Count 2, the Plaintiffs allege a cause of action for breach of express warranty in violation of the UCC. The Defendants also contend that the warranty claim failed adequately to plead an affirmation of fact or promise because the UCC "requires that a consumer have, at the least, pre-sale knowledge of or exposure to a specific advertisement or promotional representation that he or she alleges became part of the contract." Regardless of the existence and contours of any such requirement in certain states, where the Plaintiffs' breach of warranty claim is based in part on the continued use of the VSL#3 brand name, and the Plaintiffs have alleged that they were aware of its continued use on the packaging, such a requirement does not provide a basis for dismissal at the pleading stage, Judge Chuang opines. The Defendants further assert that in order to succeed on an express warranty claim under the respective laws of Washington, Texas, California, Illinois, Kentucky, Wisconsin, Florida, Tennessee, and Michigan, a plaintiff must be in privity with the defendant, and no such privity is pleaded or provable here. The Court concludes that Tennessee and Michigan law each require a plaintiff to plead privity in order to sustain an express warranty claim. Judge Chuang notes that the Plaintiffs have identified no such factual allegations in the Amended Complaint, nor has the Court found any. The Court will, therefore, grant the Motion as to the Plaintiffs' UCC claims under Tennessee and Michigan law. Judge Chuang also opines that a failure to plead reliance is not a basis for dismissal as to the breach of express warranty claims under California, Florida, and Wisconsin law, nor is it under the laws of the states for which the Defendants have not asserted this issue. As for the remaining states -- Massachusetts, Texas, and Kentucky -- because those states require some degree of pleading on the issue of reliance, the Court turns to whether Plaintiffs have met the requisite standards. Where the Plaintiffs' pleading of reliance is arguably sufficient under the UCC, and where the Defendants have pointed the Court to no contrary state law, the Court finds that that the Plaintiffs have adequately pleaded reliance under the relevant state statutes. The Defendants also argue that the Plaintiffs' breach of express warranty claims must be dismissed because the UCC requires a plaintiff to provide pre-suit notice, but they have failed to do so. The Court finds that the Defendants' pre-suit notice argument unpersuasive. It grants the Motion as to the breach of warranty claims under the laws of Tennessee and Michigan based on the Plaintiffs' failure adequately to plead privity of contract. The Motion is otherwise denied as to the breach of express warranty claim. The Defendants further assert that the Plaintiffs' various claims under state consumer protection statutes fail for a variety of reasons, including that the Amended Complaint does not adequately allege reliance, causation, intentional deception, and ascertainable loss. While the Plaintiffs assert that the Defendants sent multiple marketing materials, their allegations fall short of describing extensive and long-term campaign that, because of its breadth, would have certainly found its way to the eyes and ears of the average citizen, Judge Chuang says. While the Plaintiffs have asserted that the new VSL#3 is not the same and not as clinically effective as the De Simone Formulation, they have not alleged that it poses a safety risk. The Court will, therefore, grant the Motion as to the California statutory consumer protection claims based on the failure to properly allege reliance. The Plaintiffs' claims under the Michigan and California consumer protection statutes, Counts 5, 6, 7, and 10, will be dismissed. The Defendants further contend that the Plaintiffs' unjust enrichment claims fail under the laws of various states because the Plaintiffs have not alleged that they conferred a direct benefit on the Defendants. However, the Plaintiffs allege that they paid the Defendants for VSL#3, and the Court discerns no reason, nor do the Defendants explain, why the benefit of the Plaintiffs' payment for an allegedly inferior product is insufficient to satisfy this requirement. The Motion will be denied as to the unjust enrichment claim in Count 3. Leadiant asserts additional bases for dismissal of the claims against it, particularly arguments based on the statute of limitations. According to Leadiant, because the Plaintiffs have alleged in the Amended Complaint that Leadiant sold the rights to market and sell VSL#3 to Alfasigma in June 2016, a date more than three years before this lawsuit was filed, the Plaintiffs' claims under the state consumer protection statutes of Florida, Idaho, Kentucky, and Wisconsin, as well as the unjust enrichment claims relating to California, Massachusetts, Michigan, Tennessee, Texas, and Washington, are time-barred. The Plaintiffs concede that the state law claims against Leadiant in Florida and Kentucky are time-barred, so those claims will be dismissed. A full-text copy of the Court's Memorandum Opinion dated Dec. 28, 2020, is available at https://tinyurl.com/y7a2t2vj from Leagle.com. WALMART INC: Tsui Sues Over Associates' Unpaid Military Leave ------------------------------------------------------------- NICKOLAS TSUI, on behalf of himself and all others similarly situated, Plaintiff v. WALMART INC., Defendant, Case No. 1:20-cv-12309 (D. Mass., December 31, 2020) is a class action against the Defendant for violations of the Uniformed Services Employment and Reemployment Rights Act by failing to provide fully paid leave to the Plaintiff and all others similarly situated associates during periods of short-term military leave. The Plaintiff has been employed by Walmart at its Sam's Club store in Hudson, New Hampshire since May 2009. He has not received any paid leave when he took short-term military leave from Walmart since 2014. Walmart Inc. is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores, headquartered in Bentonville, Arkansas. [BN] The Plaintiff is represented by: Nathaniel Sliver, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Telephone: (617) 398-5600 Facsimile: (617) 507-0620 E-mail: nsliver@blockleviton.com - and – R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th Street NW Washington, DC 20009 Telephone: (202) 734-7046 Facsimile: (617) 507-6020 E-mail: jbarton@blockleviton.com - and – Michael J. Scimone, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2055 E-mail: mscimone@outtengolden.com - and – Peter Romer-Friedman, Esq. GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 Telephone: (202) 888-1741 E-mail: peter@guptawessler.com - and – Thomas G. Jarrard, Esq. LAW OFFICE OF THOMAS JARRARD PLLC 1020 N. Washington St. Spokane, WA 99201 Telephone: (425) 239-7290 E-mail: Tjarrard@att.net - and – Matthew Z. Crotty, Esq. CROTTY & SON LAW FIRM, PLLC 905 W. Riverside Ave, Suite 409 Spokane, WA 99201 Telephone: (509) 850-7011 E-mail: matt@crottyandson.com WORCESTER, MA: Faces Disability Discrimination Suit During Pandemic ------------------------------------------------------------------- Melissa Hanson, writing for MassLive, reports that Dennis Staples, who teaches automotive technology at Worcester Technical High School, has been watching coronavirus case counts remain high in Massachusetts this winter. Staples is among educators in Worcester who are looking for accommodations as the start date for hybrid learning approaches this month. Because of a breathing disorder, Staples said he's worried about contracting the virus in the classroom, where students and teachers historically work closely together. "It is physically impossible to social distance in a shop setting because of the tools, the equipment," Staples said. "We work basically hand-to-hand with the students, so the 6-feet thing is not going to work." Students with the highest level of needs and Chapter 74 students are slated to start hybrid education and return to classrooms on Jan 25. Other students are not expected to start hybrid learning until March. Meanwhile, a complaint has been filed with the Massachusetts Commission Against Discrimination questioning if the district discriminated against employees with disabilities by not engaging in an "authentic interactive process" regarding requests for accommodation. Staples said his doctor has told him that if he were to get the coronavirus, he'd likely have to be hospitalized. Cases of the common cold have landed Staples in the emergency room before, he said. "Most anybody who's applied for any type of accommodation is not doing it because we don't want to work," Staples said. "Believe me, it's easier for me to go in and do my job than it is to do it online. It's just not safe at this point. That's the whole problem here." About 200 teachers have asked for accommodations, according to Roger Nugent, the president of the Educational Association of Worcester, the local teachers' union. Conferences have happened to discuss accommodation requests, but as of Jan. 2, Nugent said he is not aware of any decisions. There was a goal to have decisions out by Jan. 1, and Nugent said he believes employees may be notified of decisions starting Jan. 4. Superintendent Maureen Binienda said because expanded family and medical leave requirements expired Dec. 31, the only way someone can take leave now is under the Americans with Disabilities Act. "People applying for leave, they're only going to get a leave if it fits the Americans with Disabilities Act," Binienda said. "It's very different. There's not as many reasons that you can be granted a paid leave." Nugent said the union will advocate for a broadening of who is approved and who is not approved. "We're encouraging the district to look at this situation with an open mind because the educators have more than come to the table and done the work that's been asked of them," Nugent said. "And now it's at a point where their personal safety could be compromised. That's not an unreasonable ask that people not be asked to go into the buildings until the buildings are 100% safe and that peoples' health not be compromised because of the work being asked of them to do." "We're not going to ask our people to put themselves in harm's way," Nugent added. Meanwhile, an email from the EAW indicates that the Massachusetts Teachers Association was filing an Unfair Labor Practice at the Department of Labor Relations and a complaint with the Massachusetts Commission Against Discrimination. The MCAD complaint, dated Dec. 28, is filed on behalf of all WPS employees that have requested an accommodation for a disability during the pandemic. It alleges that the district has "needlessly expedited" its process for evaluating accommodation requests by imposing short deadlines. Employees returning for the start of hybrid learning were expected to submit a written request for accommodation by Dec. 11. Those employees were instructed to attach a form filled out by their treating physician. Meetings about potential accommodations started around Dec. 16, according to the complaint. Jennifer Boulais, the district's chief human resources officer, told employees that decisions regarding accommodations were expected to be made by Jan. 1, whether or not the employee was able to obtain medical documentation from their physician, the complaint reads. Employees who requested an accommodation have experienced increased anxiety and stress because of the expedited process by the district, according to the complaint. The class action allegation questions whether the district discriminated against employees with disabilities by not engaging in an "authentic interactive process" regarding the requests for accommodation. "At a time when COVID-19 rates are surging and everyone has an interest in slowing the spread of the virus, [Worcester Public Schools'] systemic failures to engage in an authentic interactive process with disabled employees puts not only the employees' own health and safety at risk by potentially subjecting them to unnecessary exposure to the virus, but that of their families and members of the public," the complaint reads. The complaint seeks damages in the form of a cease and desist of deadlines for eligibility for an accommodation and compensation for "severe emotional distress" caused. Those filings follow a December cease and desist letter, which union representatives allege has been ignored by the district. The letter demands that the district cease and desist from "acting in bad faith when engaging in the interactive process with our nearly 200 affected members who each made a lawful request for a reasonable accommodation." The letter, signed by Rebecca Yee, the general counsel for the MTA, says the district essentially rejected a request for accommodations from an employee who is 15-weeks into a high-risk pregnancy. "In fact, when asked what would happen if the District cannot accommodate her request for remote teaching, you indifferently brought up termination before any other reasonable or viable option. Not only was your response harsh and insensitive, but it also seems very discriminatory and retaliatory," the letter reads. The state Department of Elementary and Secondary Education has told districts to prioritize in-person learning even if a community is considered high risk for spreading the coronavirus. The EAW represents about 3,200 employees of the Worcester Public Schools. The union and district are currently in mediation. They've been in negotiations since July and currently do not have a memorandum of understanding. [GN] YLLI CORP: Gonzales Sues Over Restaurant Staff's Unpaid Wages ------------------------------------------------------------- ANGEL GONZALES, on behalf of himself and all others similarly situated, Plaintiff v. YLLI CORP. d/b/a FLACO'S PIZZA, and VESELJ HASANKJEKAJ, and DRITON IMERAJ, as individuals, Defendants, Case No. 1:20-cv-10966 (S.D.N.Y., December 28, 2020) brings this collective action complaint against the Defendants for their alleged violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired by the Defendants to perform work for the Defendants as a cook, waiter and delivery driver from in or around July 2000 until the Defendants wrongfully terminated her in or around January 2020. The Plaintiff alleges that the Defendants failed to pay her the legally prescribed minimum wage for her hours worked as well as the spread-of-hours for each day she worked over 10 hours. In addition, although he worked more than 40 hours from in or around November 2014 until in or around November 2018, the Defendants did not pay her lawfully earned overtime compensation at one and one-half times her regular rate of pay for all hours she worked over 40 in a workweek. Moreover, the Defendants willfully failed to post notices of the minimum and overtime wages requirements, to provide the Plaintiff with a written notice, and to keep payroll records. The Plaintiff seeks to recover unpaid wages and an equal amount in the form of liquidated damages, as well as attorneys' fees and costs, and interest. Ylli Corp. d/b/a Flaco's Pizza operates a pizza restaurant, owned and managed by the Individual Defendants. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Tel: (718) 263-9591 [*] Bitcoin Industry Regulations Will Remain Amid Class Actions --------------------------------------------------------------- Jon Southurst, writing for CoinGeek, reports that regulation: it was always going to come to Bitcoin and the digital asset industry, and we've known it for a long time. While some still cling to myths of a financial free-for-all, those in the Bitcoin (BSV) ecosystem are realists -- Bitcoin must work within regulations to exist. 2020 saw new rules for KYC/AML continue to emerge, "privacy coins" gradually becoming more taboo, and enforcement actions that eventually reached XRP, one of the world's most traded assets. Almost every week in 2020 brought news of new or intended regulations concerning the digital asset industry in some part of the world, from Argentina to Kyrgyzstan. Most concerned issues surrounding identity and investments. There are too many of them to mention in one article, so here are some of the highlights. But first, a reminder of why regulation exists When Bitcoin first appeared, many were enticed by the "freedom" it purportedly offered. Near-anonymous payments to anywhere in the world! Censorship resistance! No taxes! Route around laws you don't like! Sell shares in anything you want, to anyone who'll buy them! The end of banks and fiat currencies! Hmmm . . . If you were among those who thought those promises were true, or could last, you may have been naive, or simply inexperienced in the realities of finance and politics, or fooled by charming characters with sinister motives. Most who experienced the blockchain industry first-hand for a year saw quickly that the above scenarios were unrealistic, or at best unlikely to last. Scams, hacks and thefts began even before Bitcoin reached mainstream ears, and it only got worse after that. The wiser and more experienced could see what was coming, and warned the still starry-eyed (with varying degrees of success). Even the formerly-naive soon realized that a financial wild-west for everyday individuals offered the same "freedoms" to international crime rings, hackers, terrorists, shady investment schemes, and even corrupt government officials. Few these days can seriously claim government regulation of digital finance can -- or should -- be avoided. Governments won't tolerate such a loss of policy control, or an inability to investigate crimes. Whatever your personal ideology or view of how people might act in a perfect world, this is the ultimate reality. People like Dr. Craig S. Wright have been telling us of this need to coexist for several years now, and those who refused to listen are beginning to find themselves in a precarious position. KYC KYC stands for "Know Your Customer," and refers to the process of verifying the identities of those a financial service is transacting with. It doesn't take deep thought to understand why this is important, even if the requirements are burdensome. 2020 saw an acceleration in the level of identity verification requirements for digital asset service providers -- these mostly impacted exchanges, given they're the main off-and-on-ramps between the fiat currency and digital asset worlds. Both the U.S. and E.U. members began to implement or propose new KYC rules that impose identity verification not only on exchange wallets, but also external wallets their customers might withdraw to. In the U.S., FinCEN proposed KYC requirements for transactions above US$3,000, while France has floated the idea of digital currency transactions between anyone, of any size, needing proof of identity. The EU's fifth anti-money-laundering directive (or "AMLD5") continued to become actual law in 2020. AMLD5 (and another update, AMLD6) were first published in June 2018, based on guidelines set by the international Financial Action Task Force (FATF). EU member states were given deadlines in January and December 2020 to prepare domestic laws that match the directives. Though not specifically aimed at digital asset exchanges, the directives do impose strict new obligations on them to identify customers with balances of more than EUR150, and report any suspicious activity. 'Privacy coins' feel the heat For all the reasons given above, it's hard to see how a digital currency specifically designed to mask the identity of its users or the sizes of their transactions could survive in the mainstream. Those who have at some stage or another claimed to offer such 'privacy coin' features include Zcash, Monero and DASH -- and in 2020, more exchanges began to delist these assets citing regulatory pressure as the reason. Some jurisdictions have suggested they should be banned altogether. Even ShapeShift, founded in 2015 by prominent Bitcoin libertarian Erik Voorhees on the promise of wallet-to-wallet asset swaps, announced in November it would delist the three. Meanwhile, government agencies such as the IRS ramped up programs to develop new forensic methods to trace Monero and even "Layer Two" payment networks, like BTC's Lightning Network. Blockchain forensics firms like Chainalysis have seen a boom in revenues thanks to these efforts. Investments and securities laws: none too large to target A November report revealed that, since 2017, the SEC has brought cases against 56 companies and participated in 2,750 enforcement actions in the blockchain/digital asset industry. The actions come mainly from the "ICO craze" of around that time, which saw a proliferation in the number of digital assets being traded thanks to easy creation via the ERC-20 token protocol. Apparently the idea of pumping and dumping new tokens, loosely attaching them to business ideas that rarely made it past the drawing board, and cashing out with millions wasn't so awesome after all -- failed ICO projects paid a quarter of all SEC fines in 2020. Again, the biggest news of 2020 came right at the end of the year: Ripple, the company that created top-five market cap digital asset XRP, announced it was in the SEC's sights with a new suit targeting the company and two of its most senior executives. XRP is an "unregistered security," alleged the SEC and Ripple (the company) had violated investor protection laws by issuing it . . . in 2013. The SEC's action has ramifications not only for Ripple and current XRP holders, but also exchanges that listed the asset. Coinbase was among those who announced it would delist XRP while the SEC's action continued, but it hasn't stopped disgruntled customers from targeting the exchange itself—Coinbase has been served with a class action suit by traders claiming it sold unregistered securities with full knowledge of what they were doing. This is the world Bitcoin and the wider digital asset industry now finds itself in, and regulation is unlikely to get lighter in 2021 . . . or ever. The kicker is, anyone should have been able to predict this, and act responsibly -- but so many chose not to. It's important to remember that blockchain records are public and permanent. Investigative and enforcement agencies may take years to catch up with the technology and methods, but eventually they will. In the meantime, governments will do whatever they can to bring order to the wild west. Bitcoin BSV thought leaders are foremost in stressing this to participants in their ecosystem, and it's advice everyone should heed. [GN] [*] Lawyers Fail to Get COVID Insurance Cases Coordinated Into MDL ------------------------------------------------------------------ Amanda Bronstad, writing for NJ Property Casualty 360, reports that pandemic insurance coverage and risk mitigation are just one area of many business practices that may be illegibly changed by the outcome of current and future COVID-19 lawsuits. However, the amount of litigation alleging that COVID-19 caused harm, both economically and physically, did not reach the stratospheric proportions once predicted at the start of the pandemic. But there were plenty of lawsuits related to the virus outbreak in 2020. Most of them targeted specific industries such as nursing homes, cruise ships, universities and insurance carriers. Additionally, cases against employers in 2020 had less to do with anticipated claims of COVID-19 exposure or unpaid wages, and more to do with wrongful termination. Lawmakers keep a watchful eye The debate over pandemic lawsuits reached Washington, D.C., where President Donald Trump recently signed a $900 million COVID-19 relief bill. The legislation excluded any liability protections. But for months, business groups and Senate Majority Leader Mitch McConnell, a Republican from Kentucky, pushed for them. At the same time, the American Association for Justice, the nation's largest plaintiffs bar organization, has insisted that data show a limited number of pandemic cases in the courts. "McConnell's proposal is so outrageous because there are so few cases," said Julia Duncan, senior director of government affairs at the AAJ. "However, those that have been filed raise critical issues of worker protection and nursing home safety that, but for these lawsuits, we wouldn't be talking about at all." In fact, new filings of cases related to COVID-19 dipped in August and fell even further in November, to 588, one of the lowest levels since the start of the pandemic, according to the COVID-19 Impact Analyzer from Lex Machina, part of Lexis Nexis. Heading into 2021, however, lawyers expect to see a continuation of the largest group of pandemic lawsuits: those brought against insurance carriers over business interruption claims. There also could be new employment lawsuits focused on the COVID-19 vaccine. Here is a review of the 2020 lawsuits caused by COVID-19… Business interruption claims The largest category of lawsuits related to COVID-19 are those brought by restaurants, bars and other businesses against their insurance carriers after state and local governments forced them to shut down. According to Hunton Andrews Kurth's COVID-19 Complaint Tracker, there were nearly 6,900 lawsuits in 2020 relating to the pandemic, and insurance disputes made up the largest group, with nearly 1,400 lawsuits. Some of the cases are class actions, but most are not. Plaintiffs lawyers failed to get the insurance cases coordinated into multidistrict litigation, with some exceptions involving a few regional carriers. So far, judges have ruled for both plaintiffs and defendants. According to the University of Pennsylvania Carey Law School's COVID Coverage Litigation Tracker, judges in federal and state courts have dismissed 63 cases for good. They have dismissed 17 others, giving plaintiffs the chance to amend their complaints, but declined to dismiss 22 others. "I don't think we can draw any real patterns," said Mark Chalos, a partner at Lieff Cabraser Heimann & Bernstein in Nashville, Tennessee. "They've gone in all directions at this point. It depends, in part, on the policy language and state law." Chalos, who represents businesses suing insurers, expected more cases in 2021. Employment lawsuits At the start of the pandemic, lawyers anticipated a "huge explosion" of employment class actions focused on layoffs and unpaid wages. Yet, according to the COVID-19 Employment LitWatch, compiled by Jackson Lewis, wage-and-hour cases accounted for only 78 of the 1,245 employment matters involving COVID-19, and only 6% of all employment cases overall were class actions. Data compiled by Fisher Phillips and Littler Mendelson had similar findings. "Class actions, in general, have not come to fruition as predicted," said Stephanie Adler-Paindiris, a principal at Jackson Lewis in Orlando, Florida. She said many of the claims that lend themselves to class actions are not ripe yet, and employees are isolated from coworkers while working from home. The largest group of employment disputes -- 472 lawsuits, according to Jackson Lewis' data—dealt with disability, leave and accommodation claims by employees who were unable to come back to work because they were sick or had to care for someone with COVID-19. Many address the Families First Coronavirus Relief Act, which Congress passed to provide paid sick leave and extended family leave relating to COVID-19. Interpreting the act is a "hot, hot topic" with "not a lot of precedent," Adler-Paindiris said. "It was such a comprehensive and complicated statute that it created a number of claims saying, ‘wait a minute, why am I not getting this additional leave, or this additional pay?'" she said. "There is a lot of litigation as to when people are entitled to additional pay or unpaid leave." Many cases allege wrongful termination, too. Adler-Paindiris said some employers are using COVID-19 to "clean house," particularly if employees were not strong performers in the first place. "This is a good opportunity to look at your organization as a whole and what you want your organization to look like in the next six months," she said. "It creates litigation around the individual selection criteria." Going into the first six months of 2021, she predicted a "huge boost of class actions" dealing with systemic discrimination, as employers ask their workers to return to the office and potentially require them to take the COVID-19 vaccine, over which there could be "enormous litigation." "There will be class actions about religious accommodations, ADA accommodations, people who say because of the unique situations I have, I should get an accommodation and not have to get the vaccine," she said. "There definitely could be class actions if an employer mandates it." COVID-19 exposure Despite the focus on Capitol Hill on lawsuits alleging someone got COVID-19 due to exposure at work or at a place of business, those cases were limited in 2020. "The proposal that McConnell was insisting on having as COVID immunity targeted lawsuits brought by individuals — consumers and patients — for COVID exposure, injury or death," Duncan said. "And when you look at the database, out of 19 million infections in this country, hundreds of thousands of deaths, there are still, since the beginning of the pandemic, less than 400 cases filed relating to COVID injury or death." In its first Torts Litigation Report, released last month, Lex Machina tracked 173 tort lawsuits relating to COVID-19, most against cruise lines and nursing homes. "Those cases just haven't materialized by and large," Chalos said. Lawyers filed them in limited circumstances, "where you have a corporation or big company controlling the entire environment where people are," such as prisons, nursing homes, meatpacking plants or cruise ships, he said. "But we're not seeing really any cases of any significance in more transient environments, like stores or restaurants or bars or other local businesses," he said. Judges have dismissed many of those cases, such as those against Princess Cruise Lines, after concluding it was difficult to prove the plaintiff got COVID-19 because of the company's negligence. Chalos' firm has filed lawsuits against Carnival Corp., owner of Princess Cruise Lines and Holland America, including a class action that a federal judge refused to certify but also did not dismiss. Chalos attributed the various rulings in the cruise ship cases on the "evolving understanding of how this virus works." "For passengers who have alleged, for lack of a better word, contemporaneous symptoms, or developed them during or shortly after the time they were on Carnival cruise ship, the judges have denied the motions to dismiss in our cases," he said. The numbers aren't much different in the employment context. Although some have sued their employers, such as Tyson Foods, McDonald's and Amazon, most have not. Jackson Lewis' data found only 118 lawsuits relating to workplace safety and COVID-19. Adler-Paindiris attributed her firm's data to "a strong workers' comp bar in most states" and the fact that nearly 90% of employees now work from home. "You're really talking about health care, manufacturing, retail, where people did come back to work," she said. "So I don't see that being a huge boon." Consumer refunds Many of the consumer refund cases brought due to COVID-19 cancellations targeted universities, which abruptly went online in spring 2020. Judges have allowed most of the cases, which often focus on contract language, to go forward. "What I've seen in the decisions is that courts are closely evaluating whether you have alleged, from all the different documents and public information from the university, that you had a reasonable expectation you'd have in-person learning," said Sarah Hartley, a partner in the Boulder, Colorado, office of Bryan Cave Leighton Paisner. "It sounds straightforward, and in the end, whether that will constitute a promise to provide in-person learning is something way down the road, but courts are finding that's enough to defeat a motion to dismiss." Her firm has tracked 255 cases against higher education over unpaid refunds. Another group of consumer cases focused on the travel industry, particularly airlines and event booking sites like StubHub. Lawyers do not expect refund class actions to remerge in 2021, given that consumers are now aware of the risks of paying tuition for college that might end up virtual or purchasing plane tickets for potentially canceled trips. "The universities, from my experience with them, are doing their best to continue to provide high-quality education to their students, and these are really, really challenging circumstances," Hartley said. [GN] Asbestos Litigation ASBESTOS UPDATE: Lincoln City Sued Over Mesothelioma Death ---------------------------------------------------------- The Associated Press reports that a woman is suing the City of Lincoln in Nebraska alleging that her sister died from mesothelioma after she was exposed to asbestos while working at the now shuttered Pershing Center arena. Reports show that Dixie Johnson filed the lawsuit in December on behalf of the estate of her sister, Donna Grant, who died in February at the age of 60. The estate is seeking payment of Grant's hospital and medical bills and burial and funeral costs, as well as for her pain and anguish before she died and her family's suffering. According to the Associated Press, the city hasn't yet filed a response to the lawsuit and City Attorney Yohance Christie declined to comment. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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