/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210111.mbx C L A S S A C T I O N R E P O R T E R Monday, January 11, 2021, Vol. 23, No. 2 Headlines 38TH JUDICIAL: McFalls Files Petition in Commonwealth Ct. Pa. AGA SERVICE: Bauer Seeks 8th Circuit Review in Insurance Suit AGRI STATS: GNEMI Files Suit Over Inflated Turkey Prices ALIERA COMPANIES: Seeks 8th Cir. Review in Kelly Insurance Suit AMERICAN FINANCIAL: Faces Borger Suit Over Unsolicited Calls AMERICAN GENERAL: Cozen O'Connor Attorneys Discuss Court Ruling ARZZ INTERNATIONAL: Brooks Sues Over Blind-Inaccessible Website ASSIST ON CALL: Faces Cabanez Suit Over Caregivers' Unpaid Overtime BLACKBAUD INC: Eisen Suit Transferred from C.D. Cal. to D.S.C. BLACKBAUD INC: Estes Suit Transferred from C.D. Cal. to D.S.C. CANNA CLOUD LLC: Nieman Slams Unsolicited SMS Ads CHAMPION PETFOODS: Song Ruling in Consumer Fraud Suit to 8th Cir. CHINESE NAIL: Li Sues Over Unlawful Labor Practices, Retaliation CKR LAW: Savoji Sues Over Unpaid Wages for Non-Equity Partners CLAY & DOMINGUE: Welders Slam Misclassification, Seek Overtime Pay COSTCO WHOLESALE: City of Charleston Sues Over Mislabeled Wipes CURT FAUS: Fails to Pay Proper Wages to Laborers, Damron Suit Says DASH LUBE: Court Won't Decertify Wage Statement Class in Moreno DIVERSIFIED HEALTHCARE: Tate Disputes Collection Letter Validity DOMINION VOTING: Faces Election Class Action Lawsuit in Colorado DUCLAC INCORPORATED: Fails to Pay Proper Wages, Bustamante Says ECO-VILLAGE: Former Walden Eco-Village Residents File Class Action ELTON CORPORATION: Bid to Sever Parties From Wright Suit Denied EMZ SOLUTIONS: $200K Settlement in Rosario Suit Gets Prelim. Nod ENERGY TRANSFER: Del. Court Won't Accept Appeal in Twin City Suit ENHANCED RECOVERY: Gross Sues Over Deceptive Debt Collection Letter ENHANCED RECOVERY: Jacobson Sues Over Deceptive Collection Letter ENVISION CAPITAL: Fabricant Sues Over Unsolicited Telephone Calls ERIN ENERGY: Bids to Substitute & for Relief Denied in Lenois Suit ESURANCE PROPERTY: Romaniak Files Suit Over Breach of Contract FEIN SUCH: Celestial Files FDCPA Suit in D. New Jersey FINNEY'S VENTURA: Gresham Sues Over Non-Blind Friendly Website FLYING HORSE: Underpays Truck Drivers, Pang Suit Alleges FORMA GROUP: Web Site Not Accessible to Blind Users, Desalvo Says GOOGLE LLC: Monopolizes Android Mobile App Market, Ratliff Alleges HD AND ASSOCIATES: Taylor Ruling in FLSA Suit to Fifth Circuit HOUSE OF SALADS: Resto Staff Seeks to Recover Unpaid Overtime Wages I LOVE THIS BAR: Young FLSA Suit Seeks to Certify Employees Class IMPERIAL PACIFIC: Suit Seeks to Certify Class of Turkish Nationals J&D POWER LISTINGS: Loftus Slams Illegal Telemarketing Calls J.B. PRITZKER: Most Bid to Certify Class Denied w/o Prejudice JACK RABBIT: Hammond Sues Over Unpaid Minimum and OT Wages JESSE J. GUIDO, INC: Fails to Pay OT to Line Cooks, O'Hara Claims KENNETH COMPANY: Rodriguez Sues Over Landscapers' Unpaid Wages KONICA MINOLTA: Cezus Balks at Age Discrimination in the Workplace LA JOLLA: Fuentes Sues Over Unpaid Wages, Missed Breaks LA LIBERTAD MARKET: Candelario Sues Over Waitresses' Unpaid Wages LABRADOR FRANCHISES: Blind Can't Access Website, Brooks Suit Says LAWRY'S RESTAURANTS: Blind Cannot Access Web Site, Desalvo Says LAZER SPOT: Thomas Sues Over Unlawful Collection of Biometric Info LEHR BROTHERS: Faces Alamo Employment Suit in Cal. State Court LG ELECTRONICS: 3rd Cir. Appeal Filed in Faulty Refrigerators Suit LONGVIEW ACQUISITION: Nair Sues Over Butterfly Merger Deal LOUISIANA: Ryan Files Civil Rights Suit in M.D. Louisiana MAINE: Faces Suit Over Mismanaged Foster Children's Mental Health MANTECH INT'L: Plan Members Suit Assert Employee Fund Mismanagement MARCHELLO'S GARDEN: Herrera Sues Over Bussers' Unpaid OT Wages MDL 2738: Beniamen's Talcum Powder Suit Transferred to N.J. MDL 2804: 15 Opioid Suits Transferred to N.D. Ohio MDL 2875: 4 Suits Over Hypertension Meds Moved to D. N.J. MDL 2885: 3M Suit v. TCA Transferred to N.D. Fla. MDL 2924: Generic Manufacturers & Repackagers Win Dismissal Bid MDL 2924: Innovator-Liability Claims in Zantac Litigation Tossed MDL 2924: Master Personal Injury Complaint Tossed in Zantac Suit MDL 2924: Retailers & Distributors Win Dismissal From Zantac Suit MEDICAL FINANCIAL: Settlement Class Status Sought in FDCPA Suit MINNESOTA: Tyler Seeks 8th Cir. Review in Rights Violation Suit NEVADA: Judge Lifts Contempt Against State Unemployment Office NEW YORK: Bid for Preliminary Injunction in Nnebe v. TLC Denied NORTH MIAMI, FL: Jockey Club Sues Over Unlawful Water Utility Bills NOVABAY PHARMACEUTICALS: Tatum-Rios Files ADA Suit in S.D.N.Y. NPAS SOLUTIONS: Phelps Dunbar Attorneys Discuss Court Ruling NSBC GROUP: Faces Almonte Suit Over Failure to Pay Overtime PENNSYLVANIA: Taggarts Ruling in Foreclosure Suit to 3rd Circuit PEOPLECONNECT INC: Bonilla Sues Over Unlawful Business Practices PRIMAL FORCE: Hoffman Serves as Both Class Rep and Class Counsel QUANTUMSCAPE CORPORATION: Gowda Sues Over 41% Drop in Share Price RIVER JETTY: Website Inaccessible to Blind Users, Desalvo Claims SALAS CONCRETE: Cavazos Seeks Initial Approval of Class Settlement SELECT MEDICAL: Arends Labor Suit Removed to N.D. California SNOW TEETH WHITENING: Kraus Says Teeth-whitening Light a Scam SOLARWINDS CORP: Shareholder Files Securities Class Action STANLEY BLACK: Montgomery Seeks Second Cir. Review in Fraud Suit STARBUCKS CORP: N.D. California Refuses to Remand Anderson Suit SUFFOLK COUNTY, NY: Wins Bid to Junk Cella Suit Over Tax Map Fees THE TROXEL: Fails to Pay Proper Overtime, Jones Suit Claims TRADER JOE'S: Kong Appeals Ruling in ERISA Suit to Ninth Circuit TRINITY HEALTHSHARE: 8th Cir. Appeal Filed in Kelly Insurance Suit UNITED STATES: Missouri River Landowners File 5th Amendment Lawsuit UNITED STATES: Prelim. Injunction Denial in Hall v. USDA Affirmed UNIVERSITY OF PITTSBURGH: Breach of Duty Claims in Riskin Tossed UNIVERSITY OF PITTSBURGH: Riskin Claims v. Heppenstall, UPMC Nixed V.K. KNOWLTON: Underpays Construction Workers, Latronico Claims VERITA TELECOMMUNICATIONS: Faces Green Suit Over Unpaid Overtime VIRGIN ISLANDS: Morton Suit Seeking Pay Under CARES Act Dismissed VIVINT INC: Wins Bid to Compel Arbitration in Petrozzino Suit WESTWEGO, LA: Patton Files Civil Rights Suit in E.D. Louisiana XTO ENERGY: Class Certification Bid Stayed in Kriley Suit [*] 1,548 Workplace-Related Class Action Rulings Set New Record [*] Maurice Blackburn Mulls Business Insurance Class Action [*] Securities Lawsuits v. Non-U.S. Cos. on Track for Record High [*] Squire Patton Releases 2021 TCPA Class Action Predictions ********* 38TH JUDICIAL: McFalls Files Petition in Commonwealth Ct. Pa. ------------------------------------------------------------- A class action lawsuit has been filed against 38th Judicial Dist., et al. The case is styled as Amy McFalls, Jason Crunetti Vincent Esposito, Gregory Jackson, and Brenda Lacy, on behalf of themselves and all persons similarly situated, Petitioners v. 38th Judicial District, Hon. Thomas DelRicci, President Judge (in his official capacity) Michael R. Kehs, Esq. Court Administrator (in his official capacity), and Lori Schreiber, Clerk of Courts (in her official capacity), Respondent, Case No. 4 MD 2021 (Pa. Commonwealth Ct., Jan. 5, 2021). The case type is stated as "Equity." Montgomery County -- https://www.montcopa.org/1396/Judges-Contact-Information -- is the 38th Judicial District of the Unified Judicial System of Pennsylvania. [BN] The Petitioners are represented by: John James Grogan, Esq. David Aaron Nagdeman, Esq. LANGER GROGAN & DIVER, P.C. 1717 Arch St Ste 4020 Philadelphia, PA 19103-2846 Phone: (215) 320-5662 - and - Mary Catherine Roper, Esq. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA Po Box 60173 Philadelphia, PA 19102 Phone: (215) 592-1513 - and - Seth F. Kreimer, Esq. UNIVERSITY OF PENNA LAW SCH 3501 Sansom St Philadelphia, PA 19104-6253 Phone: (215) 898-7447 - and - Andrew Chapman Christy, Esq. ACLU OF PENNSYLVANIA PO Box 60173 Philadelphia, PA 19103 Phone: (215) 592-1513 AGA SERVICE: Bauer Seeks 8th Circuit Review in Insurance Suit ------------------------------------------------------------- Plaintiff Logan Bauer filed an appeal from a court ruling issued in his lawsuit entitled LOGAN BAUER, individually and behalf of ) all others similarly situated v. AGA SERVICE COMPANY, D/B/A ALLIANZ GLOBAL ASSISTANCE and JEFFERSON INSURANCE COMPANY, Case No. 6:20-cv-03138-MDH, in the U.S. District Court for the Western District of Missouri - Springfield. The Plaintiff seeks to represent a nationwide class of individuals to whom Jefferson and/or AGA issued an insurance policy or policies providing trip cancellation coverage who sustained loss as a result of the cancellation of their trip due to a stay-at-home mandate or quarantine order issued by governmental authority to stop the spread of COVID-19, and who have not received payment by Jefferson and/or AGA in connection with such loss. Mr. Bauer is seeking an appeal to review the District Court's order dated November 24, 2020, granting Defendants' motion to dismiss for failure to state a claim. The appellate case is captioned as Logan Bauer v. AGA Service Company, et al., Case No. 20-3711, in the United States Court of Appeals for the Eighth Circuit, Dec. 29, 2020. The briefing schedule in the Appellate Case states that: -- Appendix is due on February 8, 2021; -- BRIEF OF APPELLANT Logan Bauer is due on February 8, 2021; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant. [BN] Plaintiff-Appellant Logan Bauer, individually and on behalf of all others similarly situated, is represented by: Derek A. Ankrom, Esq. Jason C. Smith, Esq. SPENCER & FANE 2144 E. Republic Road, Suite B300 Springfield, MO 65804 Telephone: (417) 888-1000 E-mail: dankrom@spencerfane.com Defendants-Appellees AGA Service Company, doing business as Allianz Global Assistance, and Jefferson Insurance Company are represented by: Matthew J. Antonelli, Esq. Thomas S. Schaufelberger, Esq. SAUL & EWING 1919 Pennsylvania Avenue, N.W., Suite 550 Washington, DC 20006-3434 Telephone: (202) 295-6608 E-mail: matt.antonelli@saul.com tschauf@saul.com - and - Patrick J. Kenny, Esq. ARMSTRONG & TEASDALE 7700 Forsyth Boulevard, Suite 1800 Saint Louis, MO 63105 Telephone: (314) 621-5070 E-mail: pkenny@atllp.com - and - James A. Morsch, Esq. BUTLER & RUBIN 1800 Three First National Plaza 70 W. Madison Street Chicago, IL 60602 E-mail: jim.morsch@saul.com - and - Matthew Duff Turner, Esq. ARMSTRONG & TEASDALE 3405 W. Truman Boulevard, Suite 210 Jefferson City, MO 65109-0000 Telephone: (573) 636-8394 E-mail: mturner@armstrongteasdale.com AGRI STATS: GNEMI Files Suit Over Inflated Turkey Prices --------------------------------------------------------- GNEMI, LLC, Plaintiff, v. Agri Stats, Inc., Butterball LLC, Cargill, Inc., Cargill Meat Solutions Corporation, Cooper Farms, Inc., Farbest Foods, Inc., Foster Farms, LLC, Foster Poultry Farms, The Hillshire Brands Company, Hormel Foods Corporation, Hormel Foods, LLC, House of Raeford Farms, Inc., Perdue Farms, Inc., Perdue Foods LLC, Tyson Foods, Inc., Tyson Fresh Meats, Inc. and Tyson Prepared Foods, Inc., Defendants, Case No. 20-cv-07371 (N.D. Ill., December 11, 2020), is a class action complaint that seeks damages, injunctive relief, and other relief pursuant to various federal and state antitrust laws and state unfair competition laws and unjust enrichment laws. Butterball, Cargill, Cooper, Farbest, Foster, Hormel, House of Raeford Farms, Perdue and Tyson are turkey integrators that collectively control approximately 80 percent of the wholesale turkey market in the United States. Agri Stats provides information exchange services to companies in a variety of agricultural sectors, including pork, chicken and turkey. The Integrators have allegedly entered into an agreement from at least 2010 to January 1, 2017, to exchange sensitive information through Agri Stats regarding their production and sales of turkey. Gnemi operates as Logan Farms, a restaurant and deli located in Jackson, Mississippi. It allegedly paid artificially inflated prices for turkey claiming that such prices exceeded the amount they would have paid if the price for turkey had been determined by a competitive market instead of being influenced by an exchange of information through Agri Stats regarding the turkey market. [BN] Plaintiff is represented by: Robert A. Clifford, Esq. Shannon M. McNulty, Esq. CLIFFORD LAW OFFICES PC 120 N. LaSalle Street, Suite 3100 Chicago, IL 60602 Telephone: (312) 899-9090 Email: rac@cliffordlaw.com smm@cliffordlaw.com - and - John Barrett, Esq. David McMullan, Jr., Esq. Sarah Sterling Starns, Esq. BARRETT LAW GROUP, P.A. 404 Court Square Lexington, MI 39095 Telephone: (662) 834-2488 Fax: (662) 834-2628 Email: dbarrett@barrettlawgroup.com dmcmullan@barrettlawgroup.com sstarns@barrettlawgroup.com - and - Shawn M. Raiter, Esq. LARSON KING, LLP 30 East Seventh Street Suite 2800 St. Paul, MN 55101 Tel: (651) 312-6518 Fax: (651) 312-6618 Email: sraiter@larsonking.com ALIERA COMPANIES: Seeks 8th Cir. Review in Kelly Insurance Suit --------------------------------------------------------------- Defendant The Aliera Companies, Inc. filed an appeal from a court ruling entered in the lawsuit styled GEORGE T. KELLY, III, and THOMAS BOOGHER, individually and on behalf of all others similarly situated v. THE ALIERA COMPANIES, INC., et al., Case No. 3:20-cv-05038-MDH, in the U.S. District Court for the Western District of Missouri - Joplin. As previously reported in the Class Action Reporter, the Plaintiffs have filed their second amended class action complaint against Defendants Aliera and Trinity alleging Defendants sold unfair and deceptive health care plans to Missouri residents and failed to provide the coverage the purchasers believed they would receive. The Plaintiffs allege the plans sold by Defendants qualify as insurance under both federal and state law. The Defendants contend their plans are Health Care Sharing Ministries and therefore do not qualify as insurance. The Aliera Companies is seeking an appeal to review the court's order dated November 23, 2020, denying its motion to dismiss case or alternatively, to compel arbitration. The appellate case is captioned as George Kelly, III, et al. v. The Aliera Companies, Inc., Case No. 20-3702, in the United States Court of Appeals for the Eighth Circuit, Dec. 29, 2020. The briefing schedule in the Appellate Case states that: -- Appendix is due on February 8, 2021; -- BRIEFS OF APPELLANT The Aliera Companies, Inc. and Trinity Healthshare, Inc. are due on February 8, 2021; and -- Appellees brief is due 30 days from the date the court issues the Notice of Docket Activity filing the briefs of appellants.[BN] Plaintiffs-Appellees George T. Kelly, III and Thomas Boogher, individually and on behalf of all others similarly situated, are represented by: Jay Angoff, Esq. Chaim E. Bronstein, Esq. Cyrus Mehri, Esq. MEHRI & SKALET 1250 Connecticut Avenue N.W., Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 - and - Eleanor Hamburger, Esq. Ann E. Merryfield, Esq. Richard E. Spoonemore, Esq. SIRIANNI & YOUTZ 3101 Western Avenue, Suite 350 Seattle, WA 98121 Telephone: (202) 223-0303 E-mail: ehamburger@sylaw.com ann@sylaw.com rspoonemore@sylaw.com - and - Michael D. Myers, Esq. MYERS & COMPANY 1530 Eastlake Avenue East Seattle, WA 98102 Telephone: (206) 398-1188 E-mail: mmyers@myers-company.com Defendant-Appellant The Aliera Companies, Inc., formerly known as Aliera Healthcare, Inc., a Delaware corporation, is represented by: Joshua Boyd Christensen, Esq. KUTAK & ROCK 300 John Q. Hammons Parkway, Suite 800 Springfield, MO 65806 Telephone: (417) 720-1410 E-mail: joshua.christensen@kutakrock.com - and - Sarah R. Craig, Esq. BURR & FORMAN 201 N. Franklin Street, Suite 3200 Tampa, FL 33602 Telephone: (813) 221-2626 E-mail: scraig@burr.com - and - Robert H. Rutherford, Esq. Elizabeth B. Shirley, Esq. BURR & FORMAN 420 N. 20th Street, Suite 3400 Birmingham, AL 35203-0000 Telephone: (205) 251-3000 E-mail: rrutherford@burr.com bshirley@burr.com AMERICAN FINANCIAL: Faces Borger Suit Over Unsolicited Calls ------------------------------------------------------------ CHRISTIAN BORGER, individually and on behalf of all others similarly situated, Plaintiff v. AMERICAN FINANCIAL NETWORK INC., Defendant, Case No. 8:21-cv-00016 (C.D. Cal., Jan. 6, 2021) seeks to stop the Defendants' practice of making unsolicited calls in violation of the Telephone Consumer Protection Act. American Financial Network, Inc. provides finance services. The Company offers loan for buying homes. [BN] The Plaintiff is represented by: Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 1925 Century Park E #1700 Los Angeles, CA 90067 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com AMERICAN GENERAL: Cozen O'Connor Attorneys Discuss Court Ruling --------------------------------------------------------------- Michele Miller, Esq., and Charles J. Vinicombe, Esq., of Cozen O'Connor, in an article for Lexology, report that after years of pursuing life insurers with Cost of Insurance (COI) class actions, we are now seeing a new life insurance secondary market investor strategy -- suing life insurers on a class action basis for not paying enough interest. On December 21, 2020, in what appears to be the first of these cases, LSIMC, LLC (a Delaware limited liability company that allegedly has operated in the business of administering and acquiring life settlement contracts) commenced a purported class action against American General Life Insurance Company in the U.S. District Court for the Central District of California (Western District). According to LSIMC, American General promised to calculate interest on universal life account/accumulation values "based only on expectations of future investment earnings" but that American General instead has been basing its calculations on "shareholder-driven profit targets and the 'competitive environment.'" As a result, according to LSIMC, American General has been paying only the minimum 3 percent credited interest rate on policies like those owned by LSIMC, when American General and other insurers have "for the past several years, typically projected and earned returns between 5 and 6.5%." LSIMC further alleges that, by paying the minimum interest rate (despite the existence of what LSIMC describes as a "Single Factor Credited Rate" provision), American General also avoids paying "persistency bonus" rates of interest, accrues increased premium charges, and induces policy lapses and surrenders. LSIMC purports to prosecute its case on behalf of an "Investment Earnings Only California Class" that is alleged to consist of "hundreds of consumers of life insurance" who have allegedly been short-changed. LSIMC asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of Section 17200 et seq. of California's Unfair Competition Law. LSIMC admits that most of the policies in question were issued between 10 and 20 years ago. Importantly, sophisticated secondary market life insurance investors like LSIMC own a large percentage of the high face amount universal life insurance policies issued during this time period, and many of those policies have been (or may be) the subject of insurable interest challenges. Not surprisingly, nowhere in the complaint is there any mention of an individual insured or family. Other insurers should be on alert for similar cases and claims and may want to review their policies to evaluate whether their contracts fall into the so-called "Single Factor Credited Rate" category described in the investor's complaint. Obviously, there are strong defenses to these claims, including that the interest rates have been properly calculated and statutes of limitations. Of course, as noted in prior Alerts, there are also multiple defenses to the class action components of cases like this including that many of the policies that these professional investors have acquired over the years are subject to challenge on the individualized basis of lack of insurable interest. [GN] ARZZ INTERNATIONAL: Brooks Sues Over Blind-Inaccessible Website --------------------------------------------------------------- VALERIE BROOKS, individually and on behalf of all others similarly situated v. ARZZ INTERNATIONAL, INC. d/b/a SCHUTZ, a Delaware corporation and DOES 1 to 10, inclusive, Case No. 2:20-cv-02511-TLN-KJN (E.D. Cal., Dec. 17, 2020) arises from the Defendants' failure to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people, in violation of the Americans with Disabilities Act and the California's Unruh Civil Rights Act. The Plaintiff alleges that the Defendants engaged in acts of intentional discrimination because of the unlawful conduct and seeks a permanent injunction to cause a change in the Defendants' corporate policies, practices, and procedures so that their Website, https://schutz-shoes.com/, will become and remain accessible to blind and visually impaired consumers. Arzz International, Inc., d/b/a Schutz, a Delaware corporation, offers the Website to the public. The Website provides consumers with access to information about new arrivals, handbags, boots, sneakers, sandals, pumps, mules, flats, and sale items. [BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com ASSIST ON CALL: Faces Cabanez Suit Over Caregivers' Unpaid Overtime ------------------------------------------------------------------- ROY CABANEZ, individually and on behalf of all others similarly situated, Plaintiff v. ASSIST ON CALL, INC., Defendant, Case No. 3:20-cv-09470 (N.D. Cal., December 31, 2020) is a class and collective action complaint brought against the Defendant for its alleged illegal "straight time for overtime" policy in violations of the Fair Labor Standards Act, the California Labor Code, and the Private Attorneys General Act of 2004. The Plaintiff began working for the Defendant in April 2020 as a caregiver providing in-home services to the Defendant's clients. The Plaintiff claims that he normally worked more than 40 hours in a week, but he was not paid overtime at one and one-half times his regular rate of pay for all hours he worked over 40 in a workweek. Instead, the Defendant only paid the same rate regardless of the numbers of hours he worked in excess of 40 in a workweek. Assist on Call, Inc. supplies in-home caregivers and caregiving services to its clients. [BN] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC 340 S. Lemon Ave., #1228 Walnut, CA 91789 Tel: (713) 999-5228 Fax: (713) 999-1187 E-mail: matt@parmetlaw.com BLACKBAUD INC: Eisen Suit Transferred from C.D. Cal. to D.S.C. -------------------------------------------------------------- The case styled Philip Eisen, on behalf of himself and all others similarly situated v. Blackbaud, Inc., Lead Case No. 3:20-mn-02972-JMC, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the District of South Carolina on Dec. 15, 2020. The Clerk of Court for the District of South Carolina assigned Case No. 3:20-cv-04358-JMC to the proceeding. The case alleges breach of contract against the Defendant and is assigned to the Honorable Judge Michelle Childs. Blackbaud, Inc. provides software and related services designed specifically for non-profit organizations. [BN] The Plaintiff is represented by: Marc M. Seltzer, Esq. Krysta Kauble Pachman, Esq. SUSMAN GODFREY LLP 1900 Avenue of the Stars Suite 1400 Los Angeles, CA 90067 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 The Defendant is represented by: J. Rutledge Young, III, Esq. DUFFY AND YOUNG LLC 96 Broad Street Charleston, SC 29401 Telephone: (843) 720-2044 Facsimile: (843) 720-2047 E-mail: ryoung@duffyandyoung.com - and - Ronald Irvin Raether, Jr. Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 5 Park Plaza Suite 1400 Irvine, CA 92614 Telephone: (949) 622-2722 Facsimile: (949) 622-2239 E-mail: ron.raether@troutman.com - and - Tambry L. Bradford, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 350 South Grand Avenue Suite 3400 Los Angeles, CA 90071-3427 Telephone: (213) 928-9805 E-mail: tambry.bradford@troutman.com BLACKBAUD INC: Estes Suit Transferred from C.D. Cal. to D.S.C. -------------------------------------------------------------- The case styled Mamie Estes and Shawn Regan, on behalf of themselves and all others similarly situated v. Blackbaud, Inc., Lead Case No. 2:20-cv-08275, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the District of South Carolina on Dec. 15, 2020. The Clerk of Court for the District of South Carolina assigned Case No. 3:20-cv-04357-JMC to the proceeding. The case alleges breach of contract against the Defendant and is assigned to the Honorable Judge Michelle Childs. Blackbaud, Inc. provides software and related services designed specifically for non-profit organizations. [BN] The Plaintiffs are represented by: Alex R. Straus, Esq. WHITFIELD BRYSON LLP 16748 McCormick Street Encino, CA 91436-1020 Telephone: (917) 471-1894 Facsimile: (310) 496-3176 E-mail: alex@whitfieldbryson.com - and - Harper Todd Segui, Esq. WHITFIELD BRYSON LLP 217 Lucas Street, Suite G Mount Pleasant, SC 29465 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: harper@whitfieldbryson.com The Defendant is represented by: J. Rutledge Young, III, Esq. DUFFY AND YOUNG LLC 96 Broad Street Charleston, SC 29401 Telephone: (843) 720-2044 Facsimile: (843) 720-2047 E-mail: ryoung@duffyandyoung.com - and - Ronald Irvin Raether, Jr. Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 5 Park Plaza Suite 1400 Irvine, CA 92614 Telephone: (949) 622-2722 Facsimile: (949) 622-2239 E-mail: ron.raether@troutman.com - and - Tambry L. Bradford, Esq. TROUTMAN PEPPER HAMILTON SANDERS LLP 350 South Grand Avenue Suite 3400 Los Angeles, CA 90071-3427 Telephone: (213) 928-9805 E-mail: tambry.bradford@troutman.com CANNA CLOUD LLC: Nieman Slams Unsolicited SMS Ads ------------------------------------------------- Michael Nieman, individually and on behalf of all others similarly situated, Plaintiff, v. Canna Cloud, LLC and Does 1 through 10, Defendant, Case No. 20-cv-11333 (C.D. Cal., December 15, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Nieman claims to have received text messages that lead to "cannaclouddelivery.com." He was never a customer of Canna Cloud. [BN] 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 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com CHAMPION PETFOODS: Song Ruling in Consumer Fraud Suit to 8th Cir. ----------------------------------------------------------------- Plaintiffs Jennifer Song, et al., filed an appeal from a court ruling entered in the lawsuit entitled JENNIFER SONG and SCOTT WERTKIN, on behalf of themselves and all others similarly situated v. Champion Petfoods USA, Inc. and Champion Petfoods LP, Case No. 0:18-cv-03205-PJS, in the U.S. District Court for the District of Minnesota. As previously reported in the Class Action Reporter, Plaintiffs Jennifer Song and Scott Wertkin are dog owners who allege that they were misled by claims made on packages of dog food manufactured and distributed by Defendants Champion Petfoods USA, Inc. and Champion Petfoods LP. The Plaintiffs bring a wide array of fraud‐based claims against Champion. The Plaintiffs are seeking an appeal to review the Court's order dated Dec. 22, 2020 by Judge Patrick J. Schiltz, granting Defendants' motion to dismiss. The appellate case is captioned as Jennifer Song, et al v. Champion Petfoods USA, Inc., et al., Case No. 20-3689, in the United States Court of Appeals for the Eighth Circuit, Dec. 28, 2020. The briefing schedule in the Appellate Case states that: -- Transcript is due on or before February 8, 2021; -- Appendix is due February 16, 2021; -- BRIEF APPELLANT, Jennifer Song and Scott Wertkin is due on February 16, 2021; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant.[BN] Plaintiffs-Appellants Jennifer Song and Scott Wertkin, on behalf of themselves and all others similarly situated, are represented by: Daryl DeValerio Andrews, Esq. ANDREWS & DEVALERIO P.O. BOX 67101 Chestnut Hill, MA 02110 Telephone: (617) 999-6473 E-mail: daryl@andrewsdevalerio.com - and - Raina Borrelli, Esq. Karla M. Gluek, Esq. Daniel E. Gustafson, Esq. GUSTAFSON & GLUEK 120 S. Sixth Street, Suite 2600 Minneapolis, MN 55402-0000 Telephone: (612) 333-8844 E-mail: rborrelli@gustafsongluek.com kgluek@gustafsongluek.com dgustafson@gustafsongluek.com - and - Steven M. McKany, Esq. ROBBINS, LLP 5040 Shoreham Place San Diego, CA 92122 Telephone: (619) 525-3990 E-mail: smckany@robbinsarroyo.com - and - Michelle Perkovic, Esq. Mark J. Tamblyn, Esq. Kenneth A. Wexler, Esq. WEXLER & WALLACE 55 W. Monroe Street, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 E-mail: mpl@wexlerwallace.com mjt@wexlerwallace.com kaw@wexlerwallace.com - and - Rebecca A. Peterson, Esq. Robert K. Shelquist, Esq. LOCKRIDGE & GRINDAL 100 Washington Avenue, S., Suite 2200 Minneapolis, MN 55401-0000 Telephone: (612) 339-6900 E-mail: rapeterson@locklaw.com rkshelquist@locklaw.com - and - Kevin A. Seely, Esq. ROBBINS & ARROYO 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 E-mail: kseely@robbinsllp.com Defendants-Appellees Champion Petfoods USA, Inc. and Champion Petfoods, LP are represented by: Elisa Hevia Baca, Esq. David A. Coulson, Esq. Robert S. Galbo, Esq. Jared R. Kessler, Esq. GREENBERG & TRAURIG 333 S.E. Second Avenue, Suite 4100 Miami, FL 33131 Telephone: (305) 579-0500 E-mail: bacae@gtlaw.com coulsond@gtlaw.com galbor@gtlaw.com kesslerj@gtlaw.com - and - William C. Penwell, Esq. SIEGEL & BRILL 100 Washington Avenue, S., Suite 1300 Minneapolis, MN 55401-0000 Telephone: (612) 337-6100 E-mail: ChrisPenwell@siegelbrill.com - and - Rick L. Shackelford, Esq. GREENBERG & TRAURIG 1840 Century Park, E., Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 E-mail: shackelfordr@gtlaw.com - and - Blake Shepard, Jr., Esq. STINSON, LLP 50 S. Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 337-6114 E-mail: BlakeShepard@siegelbrill.com CHINESE NAIL: Li Sues Over Unlawful Labor Practices, Retaliation ---------------------------------------------------------------- WEIDONG LI, Plaintiff v. THE CHINESE NAIL SALON ASSOCIATION OF EAST AMERICA INC. and JOHN DOE, Defendants, Case No. 1:20-cv-06390 (E.D.N.Y., December 31, 2020) brings this complaint collectively on behalf of himself and other similarly situated employees against the Defendants for its alleged violations under the Fair Labor Standards Act and the New York Labor Law. The Plaintiff is a long-time worker in the nail industry, working at various nail salons as a nail technician from about 2004. The Plaintiff has sued nail salons 4 times in federal court for unfair and abusive labor practices of not paying wages. The Plaintiff alleges that the Defendants willfully and maliciously directed the Association's members not to hire him specifically and explicitly because he had sued 4 nail salons. The Plaintiff seeks a declaratory judgment; an injunction against the Association, its owners, officers, agents, successors, employees, representatives, and all persons acting in concert with them as provided by law, from engaging unlawful practices and policies; lost wages and liquidated damages equal to lost wages; pre-judgment interest; attorneys' fees and costs; and other legal or equitable relief as the Court may deem necessary, just, and proper. The Corporate Defendant is a trade association for Chinese nail salon owners and workers throughout the eastern U.S., including in New York. [BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Blvd., Suite 103 Flushing, NY 11355 Tel: (718) 762-1324 E-mail: troylaw@troypllc.com CKR LAW: Savoji Sues Over Unpaid Wages for Non-Equity Partners -------------------------------------------------------------- Farzaneh Savoji v. CKR LAW LLP, JASON FRAZIER, JEFF RINDE, MICHAEL MALONEY, and, DOES 1-25, Case No. 20STCV47829 (Cal. Super., Los Angeles Cty., Dec. 14, 2020) is an action brought by the Plaintiff and other similarly situated aggrieved employees arising from the Defendants' alleged violations of the California Labor Code and the California Business and Professions Code. The Defendants violated the state laws due to their failure to provide rest and meal periods, unpaid wages and overtime, waiting time penalties, wage statement penalties, failure to pay wages owed every pay period, failure to maintain accurate records, unfair competition, wrongful termination and breach of contract. Mr. Savoji was hired by the Defendants as a non-equity partner on approximately March 13, 2017 to September 3, 2019. CKR Law is a global law firm operating through various separate and distinct legal entities. [BN] The Plaintiff is represented by: Jasmine A. Duel, Esq. DUEL LAW FIRM 270 North Canon Drive, Third Floor Beverly Hills, CA 90210 Telephone: (310) 975-7095 Facsimile: (310) 846-8549 E-mail: jasmine@duellawfirm.com CLAY & DOMINGUE: Welders Slam Misclassification, Seek Overtime Pay ------------------------------------------------------------------ Robert Munoz, Juventino Castillon and James Eric Short, individually and on behalf of all others similarly situated, Plaintiff, v. Clay & Domingue, LLC, Defendant, Case No. 20-cv-01414 (W.D. Tex., December 11, 2020), seeks to recover overtime compensation, liquidated damages and all other available remedies under the Fair Labor Standards Act of 1938. Plaintiffs worked for Clay & Domingue, LLC and Darrin Clay as welders. They claimed that they were misclassified as independent contractors despite the fact that they worked exclusively for them. They typically worked at least 10-12 hours per day, often seven days per week; paid on an hourly basis, same hourly rate for each hour worked, and thus never received overtime pay. [BN] Plaintiffs are represented by: Josh Borsellino, Esq. BORSELLINO, P.C. 1020 Macon St., Ste. 15 Fort Worth, TX 76102 Tel: (817) 908-9861 Fax: (817) 394-2412 Email: josh@dfwcounsel.com COSTCO WHOLESALE: City of Charleston Sues Over Mislabeled Wipes --------------------------------------------------------------- COMMISSIONERS OF PUBLIC WORKS OF THE CITY OF CHARLESTON (d.b.a. Charleston Water System), individually and on behalf of all others similarly situated, Plaintiff v. COSTCO WHOLESALE CORPORATION; CVS HEALTH CORPORATION; KIMBERLY-CLARK CORPORATION; THE PROCTER & GAMBLE COMPANY; TARGET CORPORATION; WALGREENS BOOTS ALLIANCE, INC.; and WAL-MART, INC., Defendants, Case No. 2:21-cv-00042-RMG (D.S.C., Jan. 6, 2020) seeks relief from recurring damage caused by the Defendants' deceptive, improper or unlawful conduct in the design, marketing, manufacturing, distribution and sale of wipes labeled as "Flushable Wipes." The Plaintiff alleges in the complaint that absent the Defendants' actions and marketing tactics, Flushable Wipes would not be discarded in toilets and, in turn, would not damage, clog, and disrupt pump stations, lift stations, sewer lines and wastewater treatment plants' systems. As long as Defendants continue to claim that Flushable Wipes are "flushable," consumers will continue to use them in accordance with Defendants' instructions and many may never realize the property damage and risks to public health and the environment caused by flushing Flushable Wipes. Through the ordinary and directed use of the Defendants' Flushable Wipes, Plaintiff and similarly situated entities that own and operate sewage or wastewater conveyance and treatment systems, including municipalities, authorities, and wastewater districts (collectively, "STP Operators") experienced and will continue to experience clogging and other disruption of their sewage or wastewater treatment plants, pump stations, lift stations, and sewer lines due to consumers flushing Flushable Wipes as directed by Defendants. Flushable Wipes will continue to create excessive maintenance and repair-related expenses borne by STP Operators, and ultimately, the public, the suit says. Costco Wholesale Corporation operates wholesale membership warehouses in multiple countries. The Company sells all kinds of food, automotive supplies, toys, hardware, sporting goods, jewelry, electronics, apparel, health, and beauty aids, as well as other goods. [BN] The Plaintiff is represented by: F. Paul Calamita, Esq. AQUALAW PLC 6 South Fifth Street Richmond, VA 23219 Telephone: (804) 716-9021 Facsimile: )804) 716-9022 E-mail: paul@aqualaw.com -and- Samuel H. Rudman, Esq. Mark S. Reich, Esq. Vincent M. Serra, Esq. Sarah E. Delaney, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com mreich@rgrdlaw.com vserra@rgrdlaw.com sdelaney@rgrdlaw.com CURT FAUS: Fails to Pay Proper Wages to Laborers, Damron Suit Says ------------------------------------------------------------------ RICHARD DAMRON, individually and on behalf of all others similarly situated, Plaintiff v. CURT FAUS CORPORATION, Defendant, Case No. 1:21-cv-00008 (D. Haw., Jan. 5, 2021) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Plaintiff Damron was employed by the Defendant as laborer. Curt Faus Corporation was founded in 2001. The company's line of business includes the construction of nonresidential buildings. [BN] The Plaintiff is represented by: James D. DiPasquale, Esq. DIPASQUALE & SUMMERS, LLP 1003 Bishop Street, Suite 1260 Honolulu, HI 96813 Telephone: (808) 240-4771 Facsimile: (808) 240-4765 E-mail: james@ds-lawoffices.com -and- Kevin J. Stoops, Esq. Charles R. Ash, IV, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MN 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com crash@sommerspc.com DASH LUBE: Court Won't Decertify Wage Statement Class in Moreno --------------------------------------------------------------- District Judge Dana M. Sabraw issued an order denying joint motion to decertify the wage statement class in the lawsuit entitled ROBERTO MORENO, individually and on behalf of all others similarly situated v. DASH LUBE, GHARDASH ENTERPRISES, INC., KAYLA CORP., collectively d/b/a as Jiffy Lube, PAYAM RYAN GHARDASH and POYA PAUL GHARDASH, Case No. 18cv1922 DMS (AHG) (S.D. Cal.). On Dec. 13, 2019, the Court certified the following class on the Plaintiffs' wage statement claim: "All current and former hourly service technicians who worked for Defendants at any of their Jiffy Lube automotive oil change shops at any time from Aug. 17, 2014 through judgment." After that ruling, the parties engaged in numerous and lengthy settlement negotiations, and on July 24, 2020, they filed a Notice of Settlement. In that Notice, the parties reported they would be filing a joint motion to decertify the Wage Statement Class within 10 business days after execution of the formal settlement agreement. That motion was filed on Nov. 4, 2020. After reviewing the motion, the record, and the relevant legal authority, the motion is denied. The legal basis for the parties' motion is Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure, which states that an order that grants or denies class certification may be altered or amended before final judgment. The parties argue that under the Rule, a court may decertify a class upon a showing of good cause, lack of prejudice, and no undue delay. They also assert that decertification is appropriate where materially changed or clarified circumstances have been shown that would make the continuation of the class action improper. The parties contend that the Defendants' precarious financial condition, in combination with the very real possibility that they would prevail on the issue of liability, establish that good cause exists with respect to the Parties' request to decertify the wage statement class. Judge Sabraw notes that there is some authority to support the parties' position that a defendant's limited financial resources support decertification of a class (citing Barnett v. Experian Information Solutions, Inc., 236 F.R.D. 307 (E.D. Tex. 2006); Gradisher v. Check Enf't Unit, Inc., 209 F.R.D. 392 (W.D. Mich. 2002)). However, in each of those cases, it appears there was independent evidence of the defendant's precarious financial condition. In the instant case, Judge Sabraw finds, the only evidence of the Defendants' financial condition is the Declaration of the Plaintiffs' Counsel Rod Johnston, who states that during Court-supervised settlement negotiations, the Defendants represented to both the Plaintiff's Counsel and the Court that due to the Defendants' precarious financial condition, they would be unable to satisfy a class-wide judgment. Mr. Johnston also suggests that the settlement agreement itself, which calls for the Defendants to pay the Plaintiff and the opt-in Plaintiffs a total of $42,000 with 15-month payment terms, is evidence of the Defendants' precarious financial condition. Although the Court has no reason to doubt Mr. Johnston's credibility, it finds the evidence insufficient to warrant decertification of the Wage Statement Class. Just as with a motion for final approval, the Court finds that a stronger showing of the Defendants' financial hardship is required before the Court will consider decertification. The other basis for the present motion, namely the Plaintiffs' apparent reconsideration of the merits of their wage statement claim, is also insufficient to warrant decertification, Judge Sabraw holds. Indeed, other than the argument concerning the Defendants' financial condition, the parties fail to explain why the wage statement claims of the Named Plaintiff and the 12 opt-in plaintiffs are susceptible to settlement but the claims of the other 100-plus Class Members are not. Having initially requested and then obtained certification of a class, the named Plaintiffs were duty-bound to represent the common interests of all the class members, Judge Sabraw writes quoting Hanzly v. Blue Cross of W. New York, Inc., No. CIV-86-35E (W.D.N.Y. Apr. 3, 1989). It is unclear to the Court whether the parties' settlement agreement fulfills those duties. Considering these responsibilities against the present record, the Court denies without prejudice the parties' joint motion to decertify the Wage Statement Class. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y3wnyhny from Leagle.com. DIVERSIFIED HEALTHCARE: Tate Disputes Collection Letter Validity ---------------------------------------------------------------- Lydiah Tate, individually and on behalf of all others similarly situated, Plaintiff, v. Diversified HealthCare Services, Inc. and John Does 1-25, Defendants, Case No. 20-cv-00945 (E.D. Tex., December 11, 2020), seeks damages and declaratory relief under the Fair Debt Collection Practices Act. Diversified HealthCare Services is a debt collector who was assigned to collect an obligation owed by Tate. It sent a collection letter that failed to advise Plaintiff that upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. [BN] The Plaintiff is represented by: Yaakov Saks, Esq. YAAKOV SAKS Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com DOMINION VOTING: Faces Election Class Action Lawsuit in Colorado ---------------------------------------------------------------- Marianne Goodland, writing for 9News, reports that one of the organizers of the most recent failed recall effort against Gov. Jared Polis has a new project: a federal class-action lawsuit against Denver-based Dominion Voting Systems, Facebook and its founder, Mark Zuckerberg, and the governors of four states and their election officials, seeking $160 billion in damages and to declare Section 230 of the Communications Decency Act unconstitutional. The election lawsuit was filed Dec. 22 in the U.S. District Court of Colorado by attorney Gary Fielder of Denver, who is on two years probation tied to financial misconduct. The plaintiffs include Lori Cutunilli of Breckenridge, who was one of the organizers of the Recall Polis campaign that did not turn in any signatures by its Nov. 13 deadline. The group filed for an extension for turning in signatures in Denver District Court. Section 230, which protects social media companies like Twitter and Facebook from liability for the content its users post, has become a favorite target of President Donald Trump, who recently tried to get Congress to toss the provision. Trump followed through on a threat to veto the National Defense Authorization Act if Congress did not take action on Section 230. Both the House and Senate later voted to override Trump's veto of the NDAA, which funds the Defense Department. [GN] DUCLAC INCORPORATED: Fails to Pay Proper Wages, Bustamante Says --------------------------------------------------------------- MA LIDIA MUNOZ BUSTAMANTE a/k/a MARIA BUSTAMANTE, individually and on behalf of all others similarly situated, Plaintiff v. DUCLAC INCORPORATED d/b/a T&W CLEANERS; and KEVIN L. CHAU, Defendants, Case No. 9:21-cv-80018 (S.D. Fla., Jan. 5, 2020) to recover unpaid overtime compensation, liquidated damages, and reasonable attorney's fees and costs pursuant to the Fair Labor Standards Act. Plaintiff Bustamante was employed by the Defendants as staff. Duclac Incorporated d/b/a T&W Cleaners operates a dry cleaning business. [BN] The Plaintiff is represented by: Chanelle J. Ventura, Esq. Morgan & Morgan, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 327-3039 E-mail: cventura@forthepeople.com ECO-VILLAGE: Former Walden Eco-Village Residents File Class Action ------------------------------------------------------------------ Caleb Symons, writing for SentinelSource.com, reports that former residents of the Walden Eco-Village are suing their landlord over their recent displacement from the Peterborough sustainable-living community. Corinne Chronopoulos, Griffin Kelley, Michelle O'Mahony and Sarah Trento filed the suit Dec. 30 in the Manchester branch of Hillsborough County Superior Court, claiming -- on behalf of all displaced tenants -- that Eco-Village landlord Akhil Garland is required by state law to help them obtain and afford alternative housing, among other financial obligations. The group is suing Garland, the Garland Family Realty Trust that owns the Eco-Village property, and Utopia Living, a business owned by Garland that the lawsuit states was a party to some residents' leases. Class action means anyone similarly harmed can join the lawsuit and receive compensation, if it succeeds. Chronopoulos, Kelley, O'Mahony and Trento were among the 25 Eco-Village residents ordered by town officials to vacate their homes near Middle Hancock Road last month. The order resulted from a Dec. 10 inspection of the site by Peterborough Code Enforcement Officer Tim Herlihy and Fire Inspector Lt. Scott Symonds, who reported finding unapproved gas and electrical connections and nine tiny homes unauthorized as permanent residences. Herlihy told Garland in a cease-and-desist letter the following day that the utilities violations posed an immediate danger to residents. He said residents were required to leave their homes by Dec. 16, giving them just five days to move out, and that Garland was responsible for providing alternative housing "until [the] structures are properly permitted." Some ended up in hotel rooms provided by Garland. Others have been living with family members or found different temporary shelter. Chronopoulos and others argue in their lawsuit that by failing to secure proper permitting, Garland breached their respective leases and defied a state law prohibiting landlords from "willfully violat[ing] a tenant's right to quiet enjoyment of his tenancy." They claim that Garland is therefore obligated, under RSA 540-A:4, to provide alternative housing, compensate them for all moving expenses and also finance their rent at any new lodging for the remainder of their Eco-Village lease. The latter provision would cover rent higher than what residents paid monthly at the Eco-Village, which ranged from $445 to $1,472, according to Jason Bielagus, a Peterborough attorney representing the group. "They don't have the luxury of time," he said on Jan. 4. "They need to find a place quick, and with that urgency, they could end up paying a lot more." Garland declined to comment on Jan. 5, citing pending litigation. He said Dec. 29 that he had continued efforts to help tenants find and afford housing options but that he was receiving fewer responses, which he attributed to the likelihood of an imminent legal challenge. The lawsuit also seeks to recoup the plaintiffs' security deposits from Garland, which it states equaled one month's rent. The outstanding deposits totaled $8,747 on Dec. 9, according to a memorandum that Bielagus filed with the lawsuit. That figure is now lower because Garland has since returned some of them, Bielagus said on Jan. 4. "These people are going to need their deposits back in order to move on [to new housing]," he said. A hearing in the case is scheduled for Jan. 7, though Bielagus said it is unlikely that Eco-Village residents will be awarded damages so quickly. In addition to alternative housing, the plaintiffs are demanding the return of all rent payments made by any Eco-Village tenants who lived on the site when its structures were unpermitted. "If . . . [Garland] represented that he was leasing habitable structures to them, then he did not fulfill his responsibilities," Bielagus said. He did not know on Jan. 4 how many people may be eligible for compensation based on that claim because it is unclear when the gas and electrical connections were installed at the Eco-Village and when each of the unpermitted tiny homes, known as "casitas," were built. Peterborough officials approved the cottages as "transient housing" for staff at the nearby Well School -- without gas or electrical connections -- when they were constructed in the mid-2000s, according to a Dec. 14 news release from the town. The casitas were added to the site beginning in 2009, Eco-Village resident Mark Wilson said last month. Thirteen former Eco-Village residents, all of whom were among those forced to leave last month, had joined the class-action suit as of Jan. 4, according to Bielagus. [GN] ELTON CORPORATION: Bid to Sever Parties From Wright Suit Denied --------------------------------------------------------------- The U.S. District Court for the District of Delaware denied a motion to dismiss or sever parties and for leave to amend the complaint filed by Plaintiff T. Kimberly Williams in the lawsuit titled HELENA DUPONT WRIGHT, JAMES MILLS, JOSEPH WRIGHT, and T. KIMBERLY WILLIAMS, Plaintiffs/Counterclaim Defendants v. ELTON CORPORATION, GREGORY FIELDS, FIRST REPUBLIC TRUST COMPANY OF DELAWARE LLC, and M.C. DUPONT CLARK EMPLOYEES PENSION TRUST, Defendants/Counter Claimants/Third-Party Plaintiffs, v. JAMES B. WYETH, Solely as Executor and Personal Representative of the Estate of Phyllis M. Wyeth, MARY MILLS ABEL SMITH, CHRISTOPHER T. DUPONT, and KATHARINE D. GAHAGAN, Counterclaim Defendants/Third-Party Defendants, Case No. 17-286-JFB (D. Del.). The lawsuit is an action for declaratory and injunctive relief involving the Mary Chichester duPont Employee Pension Trust an employee benefit Trust set up by Mary Chichester duPont ("Settlor") in 1947. In an earlier order, the Court determined that the Trust became governed by the Employee Retirement Income Security Act of 1974 ("ERISA") when ERISA took effect in 1976. The action was originally filed in the District of Maryland by Plaintiffs duPont Wright and Mills ("Employer Plaintiffs") the grandchildren of the settlor who employ domestic employees, against Elton Corp. (a former trustee) and Gregory Fields (administrator) as fiduciaries of the Trust, seeking equitable relief to bring the Trust into compliance as an ERISA plan. The Plaintiffs later amended the complaint to add First Republic Trust Co. of Delaware (the current trustee) and the Pension Trust as Defendants. In response to a motion to dismiss for lack of standing, the Plaintiffs later filed a second amended complaint adding two Employee Plaintiffs, T. Kimberly Williams and Joseph Wright (no relation to duPont Wright). Williams had been employed by Plaintiff Helena duPont Wright as a personal accountant and Joseph Wright had been employed by Plaintiff Mills as a personal assistant. Both Employee Plaintiffs are participants in the Pension Trust and worked for the Plaintiffs for over 10 years. In the Second Amended Complaint, the Plaintiffs assert a claim for a declaration that the Trust at issue is an ERISA plan (Count I); an ERISA claim for equitable relief on the part of the Employer Plaintiffs (Count II), an ERISA claim for equitable relief on the part of Participant Plaintiffs (Count III), an ERISA claim of breach of fiduciary duty and prohibited transactions on the part of all Plaintiffs against all Defendants (Count IV), and a claim for clarification of their right to future benefits under the plan by the Participant Plaintiffs (Count V). The relief the Plaintiffs seek is an injunction ordering the Defendants to bring the plan into compliance with ERISA. The action was transferred to the district in March 2017. The case was then bifurcated for purposes of scheduling, and the determination of ERISA coverage was considered first. The remaining claims were stayed pending the resolution of Claim I. The Court granted summary judgment to the Plaintiffs on Count I, finding the Pension Trust was an ERISA plan, and lifted the stay on discovery with respect to the other claims. Plaintiff Williams now seeks leave to file a third amended complaint in which the claims of the other three Plaintiffs would be severed from her claim or dismissed. She also seeks leave to add another domestic employee as party Plaintiff and proposed class representative. Williams contends that the interests of Employer Plaintiffs duPont Wright and Mills have diverged from the interests of Employee Plaintiffs. Also, she alleges a putative class action and seeks to add a claim for failure to disclose documents, which would result in penalties under ERISA Section 502(c) against all the Defendants and an individual claim for retaliation in violation of ERISA Section 510 against Helena duPont Wright. She seeks as well to add the estate of a deceased third-party Defendant, to drop the Pension Trust as a Defendant, and to make technical corrections. The Employer Plaintiffs object to any amendment. They contend that realignment would be unjust and would significantly affect their ability to defend themselves, noting conflicts of interest. They contend, among other things, that the addition of a party and claims will necessitate further discover and will prolong the litigation. In reply to those arguments, Williams disputes that the additional claims, new party Plaintiff and proposed class action status would necessitate new discovery or additional delay. She points out, among other things, that ERISA Section 409 authorizes plan-wide relief regardless of whether a class is certified and argues that the proposed fiduciary breach claims involve the same facts, identical discovery, and identical relief regardless of whether the claims proceed as individual or as class claims. Though the Court finds the opposing parties' contentions of prejudice and delay to be somewhat overstated, it nonetheless finds that the motion for leave to amend should be denied. It is late in the action to allow amendment of pleadings. Denying the motion to amend will not deprive the Plaintiffs of an opportunity to make their case. The Court finds the allegations of a putative class action would not serve any useful purpose because the action can be properly disposed of as it is presently configured. Permitting the action to proceed as a class action would add little to the case since the number of putative plan participants is relatively small and ascertainable and the relief afforded in the action would apply to them in any event. The Plaintiffs concede that the remedy imposed in the action would operate to benefit the plan and plan participants even if it continues as an individual proceeding. The beneficiary of any eventual relief will be the plan and its participants, no matter how they are portrayed. The Plaintiffs' concerns about the identity and or location of plan participants can be addressed in discovery. As to the retaliation claim, the conduct underlying the claim relates to the recent filing of a state court action and the claim is directed against only one party, says Senior District Judge Joseph F. Bataillon. Although some issues may be interrelated, a new claim against one party should not be allowed to derail, delay, or lengthen the rest of the case. Since the conduct is a recent development and there are no statute of limitations concerns, a separate action asserting that claim can be filed independently against that the Defendant. Also, although the claim for failure to disclose is portrayed as a new claim, the failure to properly disclose the existence and/or specifics of the Trust are part of the alleged breaches of duty outlined in the Second Amended Complaint and can be addressed in the context of an equitable remedy. As far as realigning the parties, the Court agrees that interests of the Plaintiffs may be at odds. The Court finds it may make sense to realign the parties. However, since this is a bench trial, it is not necessary to do so formally. The pretrial order will supersede the pleadings and issues and claims can be clarified at that time. The same result can be achieved in the context of the pretrial order and by adjusting the order of proof. The Court will structure the presentation of the case accordingly. Although the proposed third amended complaint clarifies, restates, and fleshes out the Plaintiffs' claims and adds statutory citations, it makes no real substantive changes outside the class action, disclosure, and retaliation allegations, Judge Bataillon finds. The gravamen of the complaint is, and has always been, equitable relief for breaches of duty in connection with the administration of an ERISA plan, no matter how characterized. Employers, plan sponsors, administrators, and fiduciaries are accountable under ERISA. Any new allegations in the proposed amended complaint relate to the same factual and legal scenario presented in the second amended complaint. Judge Bataillon notes that the case has been pending for over three years and the parties are aware of the claims and defenses. Accordingly, Plaintiff Williams' motion to dismiss or sever parties and for leave to amend the complaint is denied. A full-text copy of the Court's Memorandum and Order dated Dec. 31, 2020, is available at https://tinyurl.com/y2hjhy93 from Leagle.com. EMZ SOLUTIONS: $200K Settlement in Rosario Suit Gets Prelim. Nod ---------------------------------------------------------------- The U.S. District Court for the Eastern District of New York granted the parties' motion for preliminary approval of their revised settlement agreement in the lawsuit captioned as JOHN ROSARIO, LUCAS CARRERA, and MARIO ALVAREZ, on behalf of themselves, FLSA Collective Plaintiffs, and the Class v. EMZ SOLUTIONS LLC, ARNOLD ROTH, YAAKOV ROTH, and EDWARD FORKASH, Case No. 18-CV-3297 (RPK) (CLP) (E.D.N.Y.). Under the Settlement, the Defendants would provide $200,000 for about 100 construction workers, $10,000 in service awards, and $66,666 in attorneys' fees, plus costs and expenses. Plaintiffs Rosario, Carrera, and Alvarez brought the action under the Fair Labor Standards Act and the New York Labor Law on behalf of themselves and other similarly situated employees. They named as Defendants EMZ Solutions, Arnold Roth, Yaakov Roth, and Forkash. The Plaintiffs alleged that they were employed by the Defendants as construction workers, and that they were underpaid; the Defendants had a time-shaving policy where they rounded down hours to the nearest half hour and then paid employees only for rounded hours rather than actual hours worked. The Plaintiffs sought a declaratory judgment; an order enjoining these unlawful practices; an award of unpaid overtime compensation; an award of unpaid wages; an award of liquidated and punitive damages; prejudgment and post-judgment interest; costs; and fees. They also sought relief as a class action under Rule 23 of the Federal Rules of Civil Procedure and as a collective action under Section 16(b) of the FLSA, on behalf of all non-exempt construction workers employed by the Defendants within the last six years. They sought to have the action designated as a class action and the named plaintiffs designated as representatives. The parties requested that the action be referred to mediation. That request was granted, and the parties reached a settlement. Under the settlement, the Plaintiffs and the class members who did not opt out would release their claims. In return, the Defendants would provide $200,000 for about 100 construction workers. The three named Plaintiffs would each receive $10,000 in service awards. The Plaintiffs' counsel would receive $66,666 in attorneys' fees, plus costs and expenses. Soon after, the parties moved for preliminary approval of their proposed class settlement. Upon referral, Chief Magistrate Judge Cheryl Pollak recommended that the motion be denied. Judge Pollak concluded that the parties had satisfied the prerequisites for conditionally certifying a class under Rule 23, and the parties had satisfied the prerequisites for conditionally certifying a collective action under the FLSA. Judge Pollak also found probable cause to think the proposed settlement procedurally fair. But she concluded that the parties had not provided the Court with the information necessary to evaluate the substantive fairness of the proposed settlement. Judge Frederic Block, to whom the case was then assigned, adopted Judge Pollak's recommendation and denied the motion for preliminary approval. The parties filed a supplemental letter further detailing the basis for the settlement. They also modified the settlement to address Judge Pollak's concerns. The parties then filed a second motion for preliminary approval of the proposed settlement. That motion was referred to Judge Pollak for another report and recommendation. Judge Pollak recommends that the second motion for preliminary approval be granted. She again concludes that the parties have satisfied the prerequisites for conditional certification under Rule 23 and the FLSA, and that the revised settlement is procedurally fair. This time, Judge Pollak also finds that the revised settlement is substantively fair. She concludes that several factors counsel in favor of settlement rather than litigation; that $200,000 is a reasonable sum given the range of recovery; that a service award of $10,000 to each named plaintiff is reasonable; that a $20,000 administrator's fee is reasonable; that $66,666 in attorney's fees is reasonable; and that the proposed mechanism for providing notice to potential members be approved. When no party has objected to a Magistrate Judge's recommendation, the recommendation is reviewed, at most, for "clear error." Clear error will only be found only when, upon review of the entire record, the Court is left with the definite and firm conviction that a mistake has been committed. District Judge Rachel P. Kovner states that she has reviewed Judge Pollak's report and recommendation and, having found no clear error, adopts it in full. The parties' motion for preliminary approval of the revised settlement agreement is granted. A full-text copy of the Court's Memorandum and Order dated Dec. 31, 2020, is available at https://tinyurl.com/yxzr6674 from Leagle.com. ENERGY TRANSFER: Del. Court Won't Accept Appeal in Twin City Suit ----------------------------------------------------------------- In the lawsuit titled TWIN CITY FIRE INSURANCE CO., NAVIGATORS INSURANCE CO., and ALLIED WORLD NATIONAL ASSURANCE CO., Defendants Below, Appellants v. ENERGY TRANSFER EQUITY, LP, REGENCY GP LP, and REGENCY GP LLC, Plaintiffs Below, Appellees, Case No. 343, 2020 (Del.), Justice James T. Vaughn, Jr., of the Supreme Court of Delaware refuses to accept an appeal from a superior court opinion denying the Appellant Insurers' motion to dismiss for lack of personal jurisdiction. The appellants, Twin City, Navigators Insurance, and Allied World, have petitioned the Appellate Court, pursuant to Supreme Court Rule 42, to accept an appeal from the Superior Court's opinion dated Sept. 25, 2020. The September 25 opinion denied the Appellant Insurers' motion to dismiss for lack of personal jurisdiction. In the Superior Court litigation, the Appellees, Energy Transfer, Regency GP LP, and Regency GP LLC ("Insureds"), claim that certain director and officer insurance policies issued by the Appellant Insurers and others cover damages that may be awarded in class-action litigation that is pending in the Delaware Court of Chancery (the "Dieckman Action"). The Plaintiff in the Dieckamn Action seeks damages for unitholders of Regency Energy Partners LP ("Regency") arising out of the acquisition of Regency by Energy Transfer Partners L.P. Appellees Regency GP LP and Regency GP LLC, among others, were named as defendants in the Dieckman Action. The Appellant Insurers moved to dismiss the Superior Court litigation, asserting that they are not subject to personal jurisdiction in Delaware. The Superior Court denied the motion, holding that the Appellant Insurers are subject to personal jurisdiction under 10 Del. C. Section 3104(c)(6). It also held that the exercise of jurisdiction over the Appellant Insurers would not offend due process. The Appellant Insurers asked the Superior Court to certify an interlocutory appeal. The Superior Court denied the application for certification. It determined that its opinion denying the Appellant Insurers' motion to dismiss did not decide a substantial issue of material importance because it did not go to the merits of the case. With respect to the criteria of Rule 42(b)(iii), the Superior Court concluded that the decision sustained the controverted jurisdiction of the Superior Court and arguably involved a question of law relating to the "constitutionality, construction, or application" of Delaware's long-arm statute. But it also determined that a successful interlocutory appeal would not necessarily terminate the litigation in its entirety, because numerous other insureds would remain as Defendants in the action, even if the Appellant Insureds were not subject to personal jurisdiction. And it determined that interlocutory review would not serve considerations of justice or promote the most efficient and cost-effective resolution of the case. The Appellate Court agrees that interlocutory review is not warranted in the case. Applications for interlocutory review are addressed to the sound discretion of the Court. In the exercise of its discretion and giving great weight to the trial court's view, the Appellate Court has concluded that the application for interlocutory review does not meet the strict standards for certification under Supreme Court Rule 42(b). Exceptional circumstances that would merit interlocutory review of the Superior Court's decision do not exist in the case, and the potential benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs caused by an interlocutory appeal, Justice Vaughn opines. Therefore, the interlocutory appeal is refused. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/yyczcnek from Leagle.com. ENHANCED RECOVERY: Gross Sues Over Deceptive Debt Collection Letter ------------------------------------------------------------------- LEIVY GROSS, individually and on behalf of all others similarly situated, Plaintiff v. ENHANCED RECOVERY COMPANY, LLC, and John Does 1-25, Defendant, Case No. 1:20-cv-06389 (E.D.N.Y., December 31, 2020) is a class action complaint brought against the Defendant seeking damages and declaratory relief for the Defendant's alleged violations of the Fair Debt Collection Practices Act. According to the complaint, the Plaintiff has an alleged debt incurred to T-Mobile that arose out of transactions, specifically telecommunication services. In an attempt to collect the alleged debt, T-Mobile contracted with the Defendant, who subsequently sent a collection letter to the Plaintiff on or about August 24, 2020. The Plaintiff contends that the Defendant's collection letter is deceptive because it implies that in exchange for payment of less than the full balance the Plaintiff will achieve some form of settlement, when in actuality it is unclear what form of settlement the letter is offering. It is also stated in the letter that the creditor will recall the account and cease all collection activity, but it did not clarify what will occur with the rest of the balance. The Plaintiff asserts that he has been damaged by the Defendant's deceptive, misleading and false debt collection practices. Thus, the Plaintiff seeks statutory and actual damages, reasonable attorneys' fees and expenses, pre- and post-judgment, and other relief that the Court may deem just and proper. Enhanced Recovery Company, LLC is a debt collector. [BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext. 107 Fax: (201) 282-6501 E-mail: rdeutsch@steinsakslegal.com ENHANCED RECOVERY: Jacobson Sues Over Deceptive Collection Letter ------------------------------------------------------------------ The case, JOEL JACOBSON, individually and on behalf of all others similarly situated, Plaintiff v. ENHANCED RECOVERY COMPANY, LLC, and John Does 1-25, Defendant, Case No. 1:20-cv-06364 (E.D.N.Y., December 30, 2020) arises from the Defendant's alleged violations of the Fair Debt Collection Practices Act. The Plaintiff has an alleged debt incurred to Sprint, specifically for telecommunication services. According to the complaint, Sprint contracted with the Defendant to collect the alleged debt. Subsequently on or about August 7, 2020, the Defendant sent a collection letter to the Plaintiff. The Plaintiff alleges that the Defendant's collection letter is deceptive because it implies that in exchange for payment of less than the full balance the Plaintiff will achieve some form of settlement, when in actuality it is unclear what form of settlement the letter is offering. It is also stated in the letter that the creditor will recall the account and cease all collection activity, but it did not clarify what will occur with the rest of the balance. The Plaintiff claims that he has been damaged by the Defendant's deceptive, misleading and false debt collection practices. Thus, the Plaintiff seeks statutory and actual damages, reasonable attorneys' fees and expenses, pre- and post-judgment, and other relief that the Court may deem just and proper. Enhanced Recovery Company is a debt collector. [BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext. 107 Fax: (201) 282-6501 E-mail: rdeutsch@steinsakslegal.com ENVISION CAPITAL: Fabricant Sues Over Unsolicited Telephone Calls ----------------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. ENVISION CAPITAL GROUP LLC, and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:20-cv-11752 (C.D. Cal., December 30, 2020) is a class action complaint brought against the Defendant for its alleged negligent and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant placed calls on the Plaintiff's cellular telephone number ending in -1083 beginning in or around October 2019 in an attempt to promote its services. The Defendant allegedly used an "automatic telephone dialing system" in placing calls without obtaining the Plaintiff and other similarly situated persons' "prior express consent" to receive calls via an ATDS or an artificial or prerecorded voice on their cellular telephone. The Plaintiff asserts that he was harmed and suffered damages due to the Defendant's unsolicited telemarketing calls, which caused him to incur certain charges or reduced telephone time for which he previously paid, and invaded his privacy. The Plaintiff seeks an injunctive relief prohibiting such conduct in the future, statutory and treble damages, and other relief that the Court deems just and proper. Envision Capital Group LLC is a business 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 ERIN ENERGY: Bids to Substitute & for Relief Denied in Lenois Suit ------------------------------------------------------------------ The Honorable Paul A. Fioravanti, Jr., Vice Chancellor of the Court of Chancery of Delaware denied the Amended Motion to Substitute and the Motion for Relief in the lawsuit captioned ROBERT LENOIS, on behalf of himself and all other similarly situated stockholders of ERIN ENERGY CORPORATION, and derivatively on behalf of ERIN ENERGY CORPORATION v. KASE LUKMAN LAWAL, LEE P. BROWN, WILLIAM J. CAMPBELL, J. KENT FRIEDMAN, JOHN HOFMEISTER, IRA WAYNE MCCONNELL, HAZEL R. O'LEARY, and CAMAC ENERGY HOLDINGS LIMITED, Defendants, and ERIN ENERGY CORPORATION, Nominal Defendant, Case No. 11963-VCF (Del. Ch.). Erin is an oil and gas exploration company. Lawal was the Company's Chairman and CEO. At the time of the challenged transactions, Lawal is alleged to have been the Company's controlling stockholder. Lawal and his family owned a majority of CAMAC International Limited ("CIL"), which indirectly owns 100% of Defendant CAMAC Energy Holdings Limited ("CEHL"). Lawal and CEHL owned 58.86% of the Company's outstanding shares prior to the transactions challenged in Lenois's Complaint. In June 2013, Public Investment Corporation Limited ("PIC"), a quasi-public South African pension fund manager, and Lawal, on behalf of Allied Energy Plc ("Allied"), a wholly owned subsidiary of CEHL, negotiated a transaction through which PIC would invest $300 million in the Company in exchange for a 30% ownership stake in Erin. Erin would then transfer the money invested by PIC and additional Erin stock to Allied in exchange for certain oil assets held by Allied ("Assets"). On June 14, 2013, Allied and PIC presented the proposed transactions to the Erin board of directors. On June 17, 2013, the Board formed a Special Committee consisting of Defendants Hofmeister, McConnell, and O'Leary to consider and negotiate the proposal. On Nov. 18, 2013, after five months of negotiations with Lawal and Allied, the Special Committee approved and recommended to the Board a series of related transactions with PIC and Allied ("Transactions"). The Transactions provided for: (1) PIC to invest $270 million in Erin in exchange for approximately 377 million shares of Erin; (2) Erin to pay $170 million in cash and provide a $50 million convertible subordinated note to Allied; and (3) Erin to issue additional stock and a stock dividend, ultimately resulting in post-closing Erin ownership of approximately 30% for PIC, 60% for Allied/CEHL, and 13% for other stockholders. The Transactions also provided that Allied would fund the drilling costs of a particular well (with Erin to bear the costs of completion for the well) and that certain contract rights would be terminated in exchange for Erin's agreement to make two $25 million payments to Allied. The Board approved the Transactions, with Lawal and Defendant Lee P. Brown recusing themselves. On Jan. 15, 2014, Erin filed a proxy statement with the United States Securities and Exchange Commission recommending that its stockholders approve certain proposals necessary to effectuate the Transactions ("Proxy"). On Feb. 13, 2014, Erin held a special meeting of stockholders to vote on a Transfer Agreement, a Share Purchase Agreement, and an amendment to the Company's certificate of incorporation. The proposals were subject to approval by a majority of the minority of stockholders. Each of the proposals received the requisite stockholder approvals, and the Transactions closed about a week later. On July 30, 2015, nearly a year-and-a-half after the Transactions closed, Lenois made a stockholder demand to inspect Erin's books and records pursuant to 8 Del. C. Section 220. Counsel for Lenois and Erin negotiated and ultimately agreed upon the scope of the production in response to the demand. Erin produced minutes and presentations of Board meetings and other records specifically requested by Lenois. Lenois did not request any version of the contracts related to the Transactions or any attachments to the contracts. On Feb. 5, 2016, Lenois filed a Complaint against the Defendants asserting direct claims on behalf of a class of Erin stockholders and derivative claims on behalf of the Company. The Complaint alleged that certain of the Company's directors, Lawal, and CEHL breached their fiduciary duties by approving the Transactions. The Complaint contained four counts. Counts I and II were styled as derivative claims: Count I asserted a derivative claim for breach of fiduciary duty against Lawal and CEHL as the Company's controlling stockholders, and Count II asserted a derivative claim for breach of fiduciary duty against the Company's directors for permitting Lawal to steer the transaction process. Counts III and IV were styled as class action claims: Count III asserted a direct claim for breach of fiduciary duty against the Company's directors and Count IV asserted a direct claim against Lawal as a controlling stockholder for aiding and abetting the other directors' breaches of fiduciary duty. The Complaint alleged that the Transactions were subject to and could not withstand entire fairness review because they were transactions between the Company and its controlling stockholder. The Complaint branded the Special Committee process as "fatally flawed," accusing the Special Committee of relying on conflicted management, lacking time to properly consider the complex transactions presented, being misled and threatened by Lawal, and not being fully informed. One allegation regarding the Special Committee is central to the pending Motions. The Proxy represented that Allied had acquired the Assets in 2012 for "$250 million in cash subject to certain adjustments." On April 7, 2017, Lenois moved to supplement his Complaint with new allegations based on information obtained through a recent publicly filed question-and-answer session at a stockholder meeting of Eni, S.p.A., the parent company of the original owner of the Assets, Nigerian Agip Exploration Limited ("NAE"). In that question-and-answer session, Eni disclosed that Allied only paid NAE $100 million of the $250 million owed for the Assets, with the remainder "the subject of recovery by means of a legal action." Based upon that newly obtained information, Lenois alleged the Special Committee acted in bad faith by knowingly disclosing that Allied acquired the Assets for "$250 million in cash subject to certain adjustments." On May 23, 2017, the Court granted Lenois' motion to supplement the Complaint because Lenois had no reasonable way to ascertain the information in the question-and-answer session until the disclosure of the question-and-answer session. In the Memorandum Opinion dated Nov. 7, 2017, the Court granted the Defendants' motions to dismiss. As to the derivative claims, it determined that the Complaint was replete with allegations of bad faith conduct against Lawal, but concluded the Complaint and documents incorporated by reference reflected a Special Committee that retained reputable, independent legal and financial advisors, resisted attempts to rush the process, pushed back on numerous deal terms, and obtained materially better terms. Thus, the Court held that Lenois failed to plead demand was futile because he failed to show that a majority of the board faced a substantial likelihood of liability for non-exculpated claims. It further held that Lenois's direct claims for breach of fiduciary duty arising from allegedly materially false disclosures failed because the alleged injury was to the Company. On Nov. 20, 2017, the Plaintiff filed a notice of appeal to the Supreme Court. On Jan. 31, 2018, the Nigerian military landed on oil platforms leased by Erin Petroleum Nigeria, Ltd. ("EPNL") and seized the Assets. The Nigerian authorities acted pursuant to a final judgment in an arbitration proceeding which found that Allied and CIL failed to pay the agreed-upon purchase price of the Assets acquired from NAE in 2012. The Seizure forced Erin to cease operations, and Erin filed for bankruptcy on April 25, 2018. Erin notified the Supreme Court of the bankruptcy, and on April 27, 2018, the Supreme Court informed the parties that the appeal would be stayed as a result of the bankruptcy. On April 24, 2018, Erin filed with the SEC a Form 8-K containing a description of the Seizure. In the April 2018 8-K, Erin disclosed that the Seizure resulted from a Nigerian court order enforcing a "Final Award" by the London Court of International Arbitration ("LCIA"). The April 2018 8-K disclosed that the Arbitration was denominated LCIA Arbitration No. 132498 and that the Arbitration began in 2016. Based on the LCIA arbitration number disclosed in the April 2018 8-K, Lenois and his counsel ascertained that the arbitration began in 2013, rather than 2016, as the April 2018 8-K stated. Following the public disclosure in the April 2018 8-K, Lenois investigated the Transfer Agreement further. Lenois and his counsel found a reference in the Transfer Agreement to "NAE Claims" which were "described on Allied Disclosure Schedule 4.5." Through the Trustee, Lenois obtained a copy of the Transfer Agreement containing Schedule 4.5. The Movants have filed two motions: (1) to substitute the Trustee for the Company as a party and then realign the Trustee as plaintiff, and (2) for relief from judgment under Court of Chancery Rule 60(b)(2), (3), and (6). Under Court of Chancery Rule 60(b)(2), a court may provide relief from a final judgment on the basis of "newly discovered evidence." The "newly discovered evidence" that the Movants offer as the reason to vacate the Court's dismissal order is Schedule 4.5 to the Transfer Agreement, which discloses the existence of the Arbitration. The Movants argue that Schedule 4.5 to the Transfer Agreement was neither publicly filed nor produced in response to Lenois's demand for books and records and that it reflects that the entities, which sold the Assets to Allied (which then sold the Assets to the Company) were subject to the Arbitration. According to the Movants, Schedule 4.5 reveals that the Director Defendants must have known that the disclosure in the Proxy that Allied had acquired the Assets in 2012 for "$250 million in cash subject to certain adjustments" was false. They argue that the existence and nature of the Arbitration was "so material and relevant" that it would have changed the result of the Memorandum Opinion. In particular, they argue that the Memorandum Opinion stated that "Plaintiff likely would have very serious claims of bad faith against Director Defendants" if the Special Committee did know that Lawal Allied did not actually 'pay $250 million in cash' for the Assets and intentionally misled stockholders in the Proxy. Judge Fioravanti holds that even assuming that disclosure of the Arbitration would have been sufficiently material to potentially alter the result of the Memorandum Opinion, the existence of the Arbitration was not "newly discovered" evidence to the Trustee, and Lenois has failed to demonstrate that he could not have discovered the existence of the Arbitration had he exercised reasonable diligence," citing Okla. Firefighters Pension & Ret. Sys. v. Corbat, 2018 WL 1254958 (Del. Ch. Mar. 12, 2018). The Court will not grant relief from a final judgment under Court of Chancery Rule 60(b)(2) if the evidence was in the possession of the party seeking to introduce it as 'newly discovered.'" Judge Fioravanti opines that Schedule 4.5 was within Erin's possession, and Erin's knowledge is imputed to the Trustee. Because Schedule 4.5 was not "newly discovered" by Erin and the Trustee, the Trustee's request for relief from judgment pursuant to Rule 60(b)(2) is denied. Judge Fioravanti also finds that Lenois could have discovered the existence of the Arbitration before the Memorandum Opinion had he exercised reasonable diligence. He also opines that the Movants have not established fraud by "clear and convincing evidence" to prevail on the Motion for Relief. In addition, the Movants have not established that the Defendants intentionally concealed Schedule 4.5 from Lenois. Judge Fioravanti points out that the Movants have not established sufficient grounds for relief from judgment under any subsection of Court of Chancery Rule 60(b). Accordingly, the Motion for Relief is denied. The Trustee has moved pursuant to Court of Chancery Rules 17 and 25(c) to be substituted for Erin as the real party in interest and to be realigned as the Plaintiff in the action. Rule 25(c) substitution would not facilitate the conduct of the case because the Memorandum Opinion is a final judgment that is no longer subject to appeal and the denial of the Motion for Relief brings the action to a close, Judge Fioravanti holds. The Motion to Substitute is, therefore, denied. A full-text copy of the Court's Memorandum Opinion dated Dec. 31, 2020, is available at https://tinyurl.com/y4otnbav from Leagle.com. Michael J. Barry -- mbarry@gelaw.com -- Rebecca Musarra -- rmusarra@gelaw.com -- GRANT & EISENHOFER, P.A., in Wilmington, Delaware; Gordon Z. Novod -- gnovod@gelaw.com -- GRANT & EISENHOFER, P.A., in New York City; Peter B. Andrews -- pandrews@andrewsspringer.com -- Craig J. Springer -- cspringer@andrewsspringer.com -- Jessica Zeldin -- jzeldin@andrewsspringer.com -- David M. Sborz -- dsborz@andrewsspringer.com -- ANDREWS & SPRINGER LLC, in Wilmington, Delaware; Jeremy Friedman -- jfriedman@fotpllc.com -- Spencer Oster -- soster@fotpllc.com -- David Tejtel -- dtejtel@fotpllc.com -- FRIEDMAN OSTER & TEJTEL PLLC, in New York City; Attorneys for Plaintiff Robert Lenois and Ronald J. Sommers, Chapter 7 Trustee. Myron T. Steele -- msteele@potteranderson.com -- Matthew F. Davis -- mdavis@potteranderson.com -- Jaclyn C. Levy -- jlevy@potteranderson.com -- POTTER, ANDERSON & CORROON LLP, in Wilmington, Delaware; David T. Moran -- dmoran@jw.com -- Christopher R. Bankler -- cbankler@jw.com -- JACKSON WALKER L.L.P., in Dallas, Texas; Attorneys for Defendants Kase Lukman Lawal and CAMAC Energy Holdings Limited. David J. Teklits -- dteklits@mnat.com -- Kevin M. Coen -- kcoen@mnat.com -- MORRIS, NICHOLS, ARSHT & TUNNELL LLP, in Wilmington, Delaware; Mark Oakes -- mark.oakes@nortonrosefulbright.com -- and Ryan Meltzer -- ryan.meltzer@nortonrosefulbright.com -- NORTON ROSE FULBRIGHT US LLP, in Austin, Texas; John Byron, NORTON ROSE FULBRIGHT US LLP, Houston, Texas; Attorneys for Defendants Lee P. Brown, William J. Campbell, J. Kent Friedman, and Nominal Defendant Erin Energy Corporation. Srinivas M. Raju -- raju@rlf.com -- Robert L. Burns -- burns@rlf.com -- Matthew D. Perri -- perri@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., in Wilmington, Delaware; Greg Waller -- gregwaller@HuntonAK.com -- HUNTON ANDREWS KURTH L.L.P., in Houston, Texas; Attorneys for Defendants John Hofmeister, Ira Wayne McConnell, and Hazel O'Leary. ESURANCE PROPERTY: Romaniak Files Suit Over Breach of Contract -------------------------------------------------------------- A class action lawsuit has been filed against Esurance Property and Casualty Insurance Company. The case is captioned as Marie Romaniak, individually and on behalf of all others similarly situated v. Esurance Property and Casualty Insurance Company, Case No. 1:20-cv-02773-PAB (N.D. Ohio, Dec. 16, 2020). The lawsuit is brought over Defedant's breach of contract. The case is assigned to Judge Pamela A. Barker. Esurance Property and Casualty Insurance Company operates as an insurance company. [BN] The Plaintiff is represented by: Andrew Shamis, Esq. SHAMIS & GENTILE 14 N.E. 1st Avenue, Ste. 705 Miami, FL 33132 Telephone: (305) 479-2299 Facsimile: (786) 623-0915 E-mail: ashamis@shamisgentile.com - and - Scott A. Edelsberg, Esq. EDELSBERG LAW 20900 N.E. 30th Avenue, Ste. 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com - and - Stuart E. Scott, Esq. SPANGENBERG, SHIBLEY & LIBER 1001 Lakeside Avenue, E, Ste. 1700 Cleveland, OH 44114 Telephone: (216) 696-3232 Facsimile: (216) 696-3924 E-mail: sscott@spanglaw.com FEIN SUCH: Celestial Files FDCPA Suit in D. New Jersey ------------------------------------------------------ A class action lawsuit has been filed against Fein, Such, Kahn & Shepard, P.C. The case is styled as Bertha Celestial, on behalf of herself and all others similarly situated v. Fein, Such, Kahn & Shepard, P.C., Case No. 2:20-cv-19474-JMV-JAD (D.N.J., Dec. 16, 2020). The case is brought over alleged violation of the Fair Debt Collection Act and is assigned to Judge John Michael Vazquez. Fein, Such, Kahn, & Shepard, P.C. operates as a law firm. The Company offers legal advisory services in the field of business and elder law, commercial real estate, estate planning, asset protection, collections, creditor's rights, personal injury, and municipal court. Fein, Such, Kahn, & Shepard serves customers in the United States. [BN] The Plaintiff is represented by: Lawrence C. Hersh, Esq. 17 Sylvan Street Suite 102B Rutherford, NJ 07070 Telephone: (201) 507-6300 E-mail: lh@hershlegal.com FINNEY'S VENTURA: Gresham Sues Over Non-Blind Friendly Website -------------------------------------------------------------- Darren Gresham, individually and on behalf of all others similarly situated, Plaintiff, v. Finney's Ventura LP, Finney's Slo LP, Finney's Porter Ranch LP, Finney's Funk Zone LP, Finney's Camarillo LP, Finney's Burbank LP and Does 1 to 10, inclusive,, Defendants, Case No. 20-cv-11339 (C.D. Cal., December 15, 2020), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act and California's Unruh Civil Rights Act. Finney's operates https://www.finneyscrafthouse.com/, a website that provides access to a family owned and operated restaurant and bar that brings upscale cooking to casual dining, using local and seasonal ingredients. Gresham is legally blind and claims that said website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 Email info@wilshirelawfirm.com thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com FLYING HORSE: Underpays Truck Drivers, Pang Suit Alleges -------------------------------------------------------- The case, LIANG RUI PANG, on behalf of himself and others similarly situated, Plaintiff v. FLYING HORSE TRUCKING CO LTD., SEN MIAO INC., FLYING TIGER LOGISTICS ITERNATIONAL CO LTD., SHEN MAO LLC, WEI WANG, WEI ZHANG, SHANG WEI, GEORGE LI, and CHARLIE DOE, Defendants, Case No. 1:20-cv-06387 (E.D.N.Y., December 31, 2020) arises from the Defendants' alleged various willful, malicious, and unlawful employment policies, patterns, and/or practices in violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants from in or about October 2018 through on or about March 11, 2020 to work as a truck driver for the Defendants' freight hauling business. The Plaintiff claims that the Defendant required him to be on duty 120 hours per week 80% of the time, 144 hours per week 10% of the time, and 168 hours per week 10% of the time. However, he was only paid by the Defendants for the miles he logged driving. As a result, the Defendant deprived him of pay for about 4 hours worth of miles each day, failed to pay him for 2 hours each when the truck was stationary and being inspected during driver changes, and deprived him of minimum wage and spread-of-hours pay under the FLSA and NYLL. In addition, the Defendant failed to provide the Plaintiff with a wage statement with each payment of wages, and failed to provide him a wage notice at the time he was hired. The Corporate Defendants provide truck haulage services. The Corporate Defendants share common management and ownership. The Individual Defendants are officers, directors, managers and/or majority shareholders or owners of the Corporate Defendants. [BN] The Plaintiff is represented by: John Troy, Esq. Aaron B. Schweitzer, Esq. TROY LAW, PLLC 41-25 Kissena Blvd., Suite 103 Flushing, NY 11355 Tel: (718) 762-1324 E-mail: troylaw@troypllc.com FORMA GROUP: Web Site Not Accessible to Blind Users, Desalvo Says ----------------------------------------------------------------- BRETT DESALVO, individually and on behalf all others similarly situated, Plaintiff v. FORMA GROUP, LLC; WH FORMA GROUP, LLC; and DOES 1 to 10, inclusive, Defendant, Case No. 2:21-cv-00057-RGK-KS (C.D. Cal., Jan. 5, 2021) arises from the Defendants' violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendants' Website, http://formarestaurant.com/,is not fully or equally accessible to blind and visually-impaired consumers in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendants' corporate policies, practices, and procedures so that the Defendants' Website will become and remain accessible to blind and visually-impaired consumers, including the Plaintiff. Forma Group, LLC owns and operates a restaurant. [BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com GOOGLE LLC: Monopolizes Android Mobile App Market, Ratliff Alleges ------------------------------------------------------------------ CHRISTOPHER BRYAN RATLIFF, II, on behalf of himself and all others similarly situated v. GOOGLE LLC and ALPHABET INC., Case No. 3:20-cv-833-DPJ-FKB (S.D. Miss., Dec. 30, 2020) is brought under Sections 4, 12, and 16 of the Clayton Act for treble damages, injunctive relief, other relief, and reasonable attorneys' fees and costs with respect to the injuries sustained by the Plaintiff arising from violations by Defendants of the federal antitrust laws, including the Sherman Antitrust Act. According to the complaint, Google has engaged in anticompetitive conduct through its distribution and pre-installation agreements with Android phone manufacturers, to monopolize the market for apps and in-app purchases. Google's Play Store is available to mobile device users running Google's Android operating system. While Google claims that the Android OS is maintained as "open" source software, Google has allegedly engaged in course of conduct designed to deter competition in the market for Android mobile applications of "apps" and products sold with such apps. 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. is an American multinational conglomerate headquartered in Mountain View, California. It was created through a restructuring of Google on October 2, 2015, and became the parent company of Google and several former Google subsidiaries. [BN] The Plaintiff is represented by: Katherine Barrett Riley, Esq. John W. ("Don") Barrett, Esq. David McMullan, Esq. Sterling Starns, Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square Lexington, MS 39095 Telephone: (662) 834-2488 Facsimile: (662) 834-2628 E-mail: KBRiley@barrettlawgroup.com dbarrett@barrettlawgroup.com dmcmullan@barrettlawgroup.com sstarns@barrettlawgroup.com HD AND ASSOCIATES: Taylor Ruling in FLSA Suit to Fifth Circuit -------------------------------------------------------------- Plaintiffs Byron Taylor, et al., filed an appeal from a court ruling entered in the lawsuit entitled BYRON TAYLOR, ETC., ET AL. v. HD and ASSOCIATES, LLC, ET AL., Case No. 2:19-CV-10635, in the U.S. District Court for the Eastern District of Louisiana, New Orleans. As previously reported in the Class Action Reporter, the lawsuit alleges that Defendant failed to pay the Plaintiff and its other Technicians for all hours worked and also failed to pay appropriate overtime wages when they work more than 40 hours in a workweek as required by the Fair Labor Standards Act. According to the complaint, the Plaintiff and the similarly situated employees he seeks to represent, are current and former employees of HD, who worked as Technicians within the last three years. HD's pay practices and policies applied not only to Plaintiff, but also to all Class Members. Therefore, Plaintiff brings this suit on behalf of himself and all other similarly situated Technicians. The Plaintiffs are seeking an appeal to review the Court's Judgment and Order dated Dec. 3, 2020 that all claims brought by Plaintiffs' collective class are hereby dismissed and that Plaintiff's motion for partial summary judgment regarding employment status is denied. The appellate case is captioned as Taylor v. HD and Associates, Case No. 20-30815, in the U.S. Court of Appeals for the Fifth Circuit, Dec. 30, 2020. [BN] Plaintiffs-Appellants Byron Taylor, on behalf of himself and on behalf of all others similarly situated, Lonnie Treaudo, Kendall Matthews, Kenneth Hunter, Terraine R. Dennis, John Edmond, George Triche, and Alfred Edmond are represented by: Preston L. Hayes, Esq. CHEHARDY SHERMAN WILLIAMS, L.L.P. 1 Galleria Boulevard Metairie, LA 70001 Telephone: (504) 833-5600 E-mail: plh@chehardy.com Defendants-Appellees HD and Associates, L.L.C. and John Davillier are represented by: Charles Ferrier Zimmer, II, Esq. C.F. ZIMMER, L.L.C. 9213 Rosecrest Lane River Ridge, LA 70123 Telephone: (504) 405-5597 E-mail: czimmer@davillierlawgroup.com HOUSE OF SALADS: Resto Staff Seeks to Recover Unpaid Overtime Wages ------------------------------------------------------------------- Eugenio Sevilla and Stephanie Garrido, individually and on behalf of others similarly situated, Plaintiff, v. House of Salads One LLC and Asher Ben Tov, Defendants, Case No. 20-cv-06072 (S.D. N.Y., December 14, 2020), seeks to recover unpaid minimum and overtime wages and spread-of-hours pay pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a business of wholesale and retail sale of gourmet salads, located in Brooklyn, New York under the name "House of Salads" where Sevilla and Garrido were employed as kitchen manager and salad preparer respectively. They claim to have generally worked in excess of 40 hours a week without overtime for hours in excess of 40 hours per workweek and denied spread-of-hours premium for workdays exceeding 10 hours. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 Email: michael@faillacelaw.com I LOVE THIS BAR: Young FLSA Suit Seeks to Certify Employees Class ----------------------------------------------------------------- In the class action lawsuit captioned as AMBER YOUNG, on behalf of herself and others similarly situated, v. I LOVE THIS BAR LLC d/b/a Park Street Cantina, et al., Case No. 2:20-cv-03971-SDM-KAJ (S.D. Ohio), the Plaintiff asks the Court to enter an order: 1. conditionally certifying this case as a Fair Labor Standards Act (FLSA) collective action against Defendants I Love This Bar LLC d/b/a Park Street Cantina, I Love Vine LLC d/b/a Granero Lounge, I Love High LLC d/b/a Short North Julep, Park Street Boys LLC d/b/a Callahan's Bar and Rooftop, and Fadi Michael on behalf of the Plaintiff and others similarly situated; 2. implementing a procedure whereby Court-approved Notice of FLSA claims is sent by United States Mail and e-mail to: "all current and former hourly tipped employees of the Defendants during the three years preceding the filing of this Motion and continuing through the final disposition of this case ("Potential Opt-In Plaintiffs" or "Putative Class"); 3. approving the proposed Notice and Consent to Join forms; 4. directing the Defendants to provide, within 14 days of an order granting conditional certification, a Roster of all Potential Opt-In Plaintiffs that includes their full names, their dates of employment, their locations worked, job titles, their last known home addresses, and their personal email addresses; and 5. directing that the Court-approved Notice and Consent to Join forms be sent to such present and former employees within 14 days of receipt of the Roster using the Potential Opt-In Plaintiffs' home and email addresses. This case involves the Defendants' tip credit disclosure and tip retention policies and/or practices. The Plaintiff has submitted allegations and evidence that under the policies or practices, the Defendants (1) fail to provide necessary tip credit disclosures to hourly tipped employees; and (2) retained portions of hourly tipped employees' tips by taking them from the tip pool. Consequently, each of these policies or practices deprives the Defendants' hourly tipped employees of their hard-earned pay, the Plaintiff contends. The Defendants are restaurant companies. A copy of the Plaintiff's motion to certify class dated Jan. 6, 2020 is available from PacerMonitor.com at http://bit.ly/3s4R4f3at no extra charge.[CC] Attorneys for the Plaintiff and those similarly situated, are:s Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite No. 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com IMPERIAL PACIFIC: Suit Seeks to Certify Class of Turkish Nationals ------------------------------------------------------------------ In the class action lawsuit captioned as OZCAN GENC, HASAN GOKCE, and SULEYMAN KOS, on behalf of themselves and all others similarly situated, v. IMPERIAL PACIFIC INTERNATIONAL (CNMI), LLC, et al., Case No. 1:20-cv-00031 (N.M.I.), the Plaintiffs ask the Court to enter an order: 1. certifying a class pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of: "all Turkish nationals with whom the Defendants contracted to work in construction of the Imperial Palace Hotel in Saipan in 2020 under the H-22 2B temporary non- agricultural workers program. The class comprises the 29 Turkish workers who have opted into the Fair Labor Standards Act collective action in this matter;" and 2. appointing themselves as class representatives. The 29 Turkish workers have shown that they satisfy all four prerequisites for a class action set forth in Rule 23(a) and that their proposed class action is permissible because of the risk of inconsistent or preclusive adjudications and the predominance of common question of law and fact, says the complaint. A copy of the Plaintiffs' motion to certify class dated Jan. 6, 2020 is available from PacerMonitor.com at https://bit.ly/2ME9tip at no extra charge.[CC] The Plaintiffs are represented by: Richard C. Miller, Esq. BANES HOREY BERMAN & MILLER, LLC Suite 201, Marianas Business Plaza P.O. Box 501969 Saipan, MP 96950 Telephone: (670) 234-5684 Facsimile: (670) 234-5683 E-mail: RMiller@pacificlawyers.law J&D POWER LISTINGS: Loftus Slams Illegal Telemarketing Calls ------------------------------------------------------------ William Loftus and James Schaffer, individually and on behalf of all others similarly situated, Plaintiff, v. J&D Power Listings, Inc. and Does 1 through 10, Defendant, Case No. 20-cv-11324 (C.D. Cal., December 15, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. J&D Power Listings, Inc. operates as All-in-Marketing. It called Plaintiffs' cellular telephone number in an attempt to promote its clients' products using an "automatic telephone dialing system." [BN] 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 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com J.B. PRITZKER: Most Bid to Certify Class Denied w/o Prejudice ------------------------------------------------------------- In the class action lawsuit captioned as George L. Most v. J.B. Pritzker, et al., Case No. 3:20-cv-00738 (S.D. Ill.), the Hon Judge David W. Dugan entered an order denying the Plaintiff's motion to certify class without prejudice, on behalf of: "sentenced individuals of all Illinois counties currently being denied access to the Illinois Department of Corrections (IDOC), its Administrative Remedies, Policies, Procedures, and Considerations." "This case is awaiting preliminary review, and, as such, the question of class certification is premature," says Judge Dugan. The nature of suit states as Prisoner Petitions -- Habeas Corpus -- General Cause alleging violation of the Prisoner Civil Rights. Jay Robert "J.B." Pritzker is an American businessman, philanthropist, and politician serving as the 43rd governor of Illinois. JACK RABBIT: Hammond Sues Over Unpaid Minimum and OT Wages ---------------------------------------------------------- Sean Hammond and Nicholas Anderson, individually and on behalf of all others similarly situated v. Jack Rabbit Services, LLC, a Kentucky Limited Liability Company, Jack Rabbit USA, LLC, a Florida Limited Liability Company, David Hain and Theodore Kaufman, Case No. 3:20-cv-00838-GNS (W.D. Ky., Dec. 15, 2020) arises from the Defendants' failure to pay Plaintiff all earned minimum and overtime wages pursuant to the Fair Labor Standards Act, the Kentucky Revised Statutes and the Ohio Revised Code Ann. Plaintiffs Hammond and Anderson were hired by the Defendants as roadside assistance technicians from approximately August 2018 through approximately February 2019 and approximately November 2013 through approximately June 2019, respectively. Rather than classify Plaintiffs as employees, the Defendants classified them as independent contractors. JackRabbit Services, L.L.C. is a transportation/trucking/railroad company. [BN] The Plaintiffs are represented by: Clifford P. Bendau, II, Esq. BENDAU & BENDAU PLLC P.O. Box 97066 Phoenix, Arizona 85060 Telephone: (480) 382-5176 E-mail: cliffordbendau@bendaulaw.com - and - James L. Simon, Esq. THE LAW OFFICES OF SIMON & SIMON 6000 Freedom Square Dr. Independence, OH 44131 Telephone: (216) 525-8890 Facsimile: (216) 642-5814 E-mail: jameslsimonlaw@yahoo.com JESSE J. GUIDO, INC: Fails to Pay OT to Line Cooks, O'Hara Claims ----------------------------------------------------------------- PAUL O'HARA, on behalf of himself and all others similarly situated v. JESSE J. GUIDO, INC. and FRANK GUIDO, Case No. 6:20-cv-07076 (W.D.N.Y., Dec. 15, 2020) seeks to recover unpaid overtime wages, liquidated damages, statutory damages, pre- and post-judgment interest, retaliation damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. Mr. O'Hara was employed by the Defendants from approximately 2005 through November 2020. He worked as a line cook for the Defendants from approximately 2010 to November 2020. Jesse J. Guido, Inc. owns and operates Pasta Villa, a restaurant located in Rochester, New York. [BN] The Plaintiff is represented by: Justin Cordello, Esq. CORDELLO LAW PLLC 95 Allens Creek Road Building 2 - Suite 215 Rochester, NY 14618 Telephone: (585) 967-7707 E-mail: justin@cordellolaw.com KENNETH COMPANY: Rodriguez Sues Over Landscapers' Unpaid Wages -------------------------------------------------------------- Roberto Rodriguez, on behalf of himself and all other plaintiffs similarly situated, known and unknown v. The Kenneth Company, an Illinois Corporation and Michael Maloney, individually, Case No. 1:20-cv-07808 (N.D. Ill., Dec. 30, 2020) is brought under the Fair Labor Standards Act, the Portal-to-Portal Act, the Illinois Minimum Wage Law and the Illinois Prevailing Wage Act for the failure of the Defendants to pay Plaintiff and class members required minimum and overtime wages. Mr. Rodriguez is a former employee of Defendants who, between approximately April 2014 and March 2020, was employed seasonally by Defendants as a landscaper. The Kenneth Company, an Illinois Corporation, owns and operates a landscaping business.[BN] The Plaintiff is represented by: John William Billhorn, Esq. Samuel D. Engelson, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 401 Chicago, IL 60604 Telephone: (312) 853-1450 KONICA MINOLTA: Cezus Balks at Age Discrimination in the Workplace ------------------------------------------------------------------ JAMES CEZUS, and other similarly situated employees v. KONICA MINOLTA, INC. and KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., Case No. BER-L-007858-20 (N.J. Super., Bergen Cty., Dec. 17, 2020) is brought by the Plaintiff pursuant to the New Jersey Law Against Discrimination (NJ LAD) for age discrimination, disparate treatment and disparate impact, breach of contract, breach of implied covenant of good faith and fair dealing and misrepresentation against his former employer Defendants, Konica Minolta, Inc. and Konica Minolta Business Solutions U.S.A., Inc. The Plaintiff and other similarly situated employees were allegedly denied equal protection under the NJ LAD and suffered economic damages including, but not limited to, loss of wages and/or severance and/or retirement payments that Defendants offered and paid to other terminated employees selected under their reduction in workforce policies that were outside of the Plaintiff's protected class. Mr. Cezus, a 58-year-old male residing in the County of Hartford, Connecticut, was employed by the Defendants from January 21, 1985 to December 18, 2018. Konica Minolta, Inc. manufactures business and industrial imaging products, including copiers, laser printers, multi-functional peripherals and digital print systems for the production printing market. Konica Minolta Business Solutions USA Inc. provides management technologies and IT Services. The Company offers services, such as production print systems, digital presses, multifunctional products, optimized print services, vertical application solutions, and developer support program. Konica Minolta Business Solutions operates throughout the United States.[BN] The Plaintiff is represented by: Donna H. Clancy, Esq. THE CLANCY LAW FIRM, P.C. 40 Wall Street, 61st Floor New York, NY 10005 Telephone: (212) 747-1744 LA JOLLA: Fuentes Sues Over Unpaid Wages, Missed Breaks ------------------------------------------------------- Felix De La Rosa Fuentes, individually and on behalf of all others similarly situated, Plaintiff, v. La Jolla Beach and Tennis Club Partners L.P. and Does 1 to 100, Defendants, Case No. 37-2020-00045980 (Cal. Super., December 15, 2020), seeks recovery of unpaid wages and penalties, missed breaks compensation and redress for failure to provide wage statements under California Business and Professions Code, California Labor Code and applicable Industrial Welfare Commission Wage Orders in addition to seeking declaratory relief and restitution. Defendants operate a private social club located on the shores of the La Jolla area of San Diego, California where Plaintiff worked as a sous chef from 1979 through on or about July 22, 2020. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. 2155 Campus Drive, Suite 180 El Segundo, CA 90245 Tel: (424) 292-2350 Fax: (424) 292-2355 Email: phaines@haineslawgroup.com - and - Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. Milan Moore, Esq. Romina Tamiry (SBN 328420) LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segunao, CA 90245 Tel: (424) 322-4772 Fax: (424) 322-4775 Email: slidman@lidmanlaw.com enguyen@lidmanlaw.com mmoore@lidmanlaw.com rtamiry@lidmanlaw.com LA LIBERTAD MARKET: Candelario Sues Over Waitresses' Unpaid Wages ----------------------------------------------------------------- MARIA T. CANDELARIO, individually and on behalf of all other similarly situated individuals, Plaintiff v. LA LIBERTAD MARKET CAFETERIA INC.; WILLIAM LAMAS; and RAMON LAMAS, Jr., Defendants, Case No. 1:21-cv-20040 (S.D. Fla., Jan. 6, 2020) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Candelario was employed by the Defendants as waitress. La Libertad Market Cafeteria Inc. owns and operates a restaurant in Miami-Dade County, Florida. [BN] The Plaintiff is represented by: Tanesha Blye, Esq. Aron Smukler, Esq. R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: tblye@saenzanderson.com asmukler@saenzanderson.com msaenz@saenzanderson.com LABRADOR FRANCHISES: Blind Can't Access Website, Brooks Suit Says ----------------------------------------------------------------- VALERIE BROOKS, individually and on behalf of all others similarly situated v. LABRADOR FRANCHISES, INC. d/b/a PET DEPOT, a California corporation; and DOES 1 to 10, inclusive, Case No. 2:20-cv-02510-KJM-KJN (E.D. Cal., Dec. 17, 2020) arises from the Defendants' failure to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people, in violation of the Americans with Disabilities Act and the California's Unruh Civil Rights Act. The Plaintiff alleges that the Defendants engaged in acts of intentional discrimination because of the unlawful conduct and seeks a permanent injunction to cause a change in the Defendants' corporate policies, practices, and procedures so that their Website, https://petdepot.net/, will become and remain accessible to blind and visually impaired consumers. Labrador Franchises, Inc., d/b/a Pet Depot, a California corporation, is a franchise company specializing in pet stores and veterinary clinics.[BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com LAWRY'S RESTAURANTS: Blind Cannot Access Web Site, Desalvo Says --------------------------------------------------------------- BRETT DESALVO, individually and on behalf all others similarly situated, Plaintiff v. LAWRY'S RESTAURANTS, INC.; LAWRY'S RESTAURANTS II, INC.; and DOES 1 to 10, inclusive, Case No. 2:21-cv-00076 (C.D. Cal., Jan. 5, 2021) arises from the Defendants' violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendants' Website, https://www.lawrysonline.com/, is not fully or equally accessible to blind and visually-impaired consumers in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendants' corporate policies, practices, and procedures so that the Defendants' Website will become and remain accessible to blind and visually-impaired consumers, including the Plaintiff. Lawry's Restaurants, Inc. owns and operates a restaurant. [BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com LAZER SPOT: Thomas Sues Over Unlawful Collection of Biometric Info ------------------------------------------------------------------ VERNON THOMAS, on behalf of himself and other persons similarly situated v. LAZER SPOT, INC., Case No. 2020CH07353 (Ill. Cir., Cook Cty., Dec. 17, 2020) seeks to recover statutory damages and other equitable relief under the Illinois Biometric Information Privacy Act (BIPA). The Plaintiff was hired by the Defendant in approximately August 2019 and worked for Defendant until approximately February 2020. According to the complaint, the Defendant collects and stores its employees' fingerprints and requires its employees to clock-in and clock-out by scanning their fingerprints into a fingerprint-scanning machine. The Plaintiff and class members have not been notified where their fingerprints are being stored, for how long Defendant will keep the fingerprints, and what, for example, might happen to this valuable information if Defendant is bought, sold, or stolen, in violation of the BIPA. Lazer Spot, Inc. provides yard management services. The Company offers spotting, shuttling, trailer rentals, gate personnel staffing, and computerized yard management, and training services. Lazer Spot serves clients in the United States.[BN] The Plaintiff is represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 107 W. Van Buren, Suite 209 Chicago, IL 60605 Telephone: (773) 831-8000 E-mail: rlc@beaumontcostales.com whb@beaumontcostales.com LEHR BROTHERS: Faces Alamo Employment Suit in Cal. State Court -------------------------------------------------------------- A class action lawsuit has been filed against Lehr Brothers Inc. The case is captioned as Jose Manuel Alamo and Blas Noe Licano Munoz, on behalf of themselves and for all similarly situated persons, and the general public v. Lehr Brothers, Inc. a California Corporation, Case No. BCV-20-102932 (Cal. Super., Kern Cty., Dec. 15, 2020). The lawsuit arises from employment-related issues. A case management conference is set for June 15, 2021 before Judge David R. Lampe. Lehr Brothers, Inc. was founded in 1979. The Company's line of business includes operating farms that produce potatoes. Lehr Brothers serves clients in the United States. [BN] The Plaintiff is represented by: Farrah Mirabel, Esq. LAW OFFICE FARRAH MIRABEL 1070 Stradella Rd. Los Angeles, CA 90077 Telephone: (714) 972-0707 Facsimile: (949) 417-1796 E-mail: fmesq@fmirabel.com LG ELECTRONICS: 3rd Cir. Appeal Filed in Faulty Refrigerators Suit ------------------------------------------------------------------ Interested party Steven F. Helfand filed an appeal from a court ruling entered in the lawsuit entitled Michael Burrage, et al v. LG Electronics USA Inc., Case Nos. 2-19-cv-13554, 2-19-cv-15185, 2-19-cv-15826, 2-20-cv-07652, in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the class actions are brought on behalf of California consumers, who purchased refrigerators manufactured by LG that are equipped with linear compressors (LG Refrigerators). LG designed, manufactured, promoted, distributed, and sold the LG Refrigerators, pricing them in the range of $1,400 to $7,000. According to the complaints, a latent defect causes failure of the refrigerator's linear compressor--a central component responsible for cooling. The compressor defect renders the LG Refrigerators unable to perform their most basic function: cooling and preserving food and beverages. When the compressor defect manifests, the refrigerator warms and its contents spoil, unless they are moved to a working refrigerator or cooler. Mr. Helfand is seeking an appeal to review the court's order granting motion for attorney fees, etc. The appellate case is captioned as Michael Burrage, et al. v. LG Electronics USA Inc., Case No. 20-3570, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellees MICHAEL BURRAGE, DIANE TERRY, TERRY DRISCOLL, CHERYL ERVIN, LEAH SCALA ISRAEL, SAM LEE, PATRICK ROMANO, and CARLOS STOCCO, on behalf of themselves and all others similarly situated, and SARAH JOHNSON are represented by: Benjamin F. Johns, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH 361 West Lancaster Avenue One Haverford Centre Haverford, PA 19041 Telephone: (610) 642-8500 - and - Amey J. Park, Esq. Jacob M. Polakoff, Esq. BERGER MONTAGUE 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (267) 831-4701 Defendant-Appellee LG ELECTRONICS USA INC is represented by: Mallik N. Nelson, Esq. HOGAN LOVELLS US 390 Madison Avenue 9th Floor New York, NY 10017 Telephone: (212) 918-3701 Amicus-Appellant STEVEN F. HELFAND, of Pembroke Pines, Florida, appears pro se. LONGVIEW ACQUISITION: Nair Sues Over Butterfly Merger Deal ---------------------------------------------------------- Nidhish Nair, individually and on behalf of all others similarly situated, Plaintiff, v. Longview Acquisition Corp., Larry Robbins, John Rodin, Wes Moore, Derek Cribbs and Randy Simpson, Defendants, Case No. 656995/2020 (N.Y. Sup. December 14, 2020), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Longview Acquisition Corp. through merger vehicle Clay Merger Sub, Inc. to Butterfly Network, Inc., rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger, costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Butterfly will merge with Longview via a reverse merger where, when completed, Longview shareholders interests will be significantly diluted, where they will own only 20% of the combined company, while existing Butterfly shareholders will own the vast majority, or 63.5%, of the resulting company, says the complaint. The Registration Statement describes an insufficient sales process in which the Board failed to create a disinterested committee of independent directors to maximize public stockholder value. Nair claims that said transaction undervalues Longview and is the result of a flawed sales process, the complaint adds. Longview is a special purpose acquisition company, an entity that is formed strictly to raise capital through an initial public offering for the purpose of acquiring an existing company, and merging with it to take that entity public. Nair is a citizen of Canada and has been a Longview stockholder. [BN] Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Boulevard Mineola, NY 11501 Phone: (516) 741-4977 Facsimile (561)741-0626 LOUISIANA: Ryan Files Civil Rights Suit in M.D. Louisiana --------------------------------------------------------- A class action lawsuit has been filed against Tarvald Anthony Smith, et al. The case is captioned as Joshua Ryan, Blaze Franklin, Amisar Cyrus Nourani, and Herbert Scully, on behalf of themselves and all others similarly situated v. Tarvald Anthony Smith, Bonnie Jackson and Ronald Johnson, in their official capacity as Judges of the 19th JDC of Louisiana, Nicole Robinson, in her official capacity as Commissioner of the 19th JDC of Louisiana; Frank Howze, in his official capacity as Coordinator of the Bail Bond Program for the 19th JDC of Louisiana, Sid J. Gautreaux, III, Sheriff, in his official capacity as Sheriff of East Baton Rouge Parish and Dennis Grimes, Lt. Col., in his official capacity as Warden of East Baton Rouge Parish Prison, Case No. 3:20-cv-00843-SDD-SDJ (M.D. La., Dec. 14, 2020). The lawsuit is brought over alleged violation of the Civil Rights Act. The case is assigned to Chief Judge Shelly D. Dick. [BN] The Plaintiffs are represented by: Eric Andrew Foley, Esq. Hannah Lommers-Johnson, Esq. MACARTHUR JUSTICE CENTER 4400 S. Carrollton Ave. New Orleans, LA 70119 Telephone: (504) 684-2364 E-mail: eric.foley@macarthurjustice.org hannah.lommersjohnson@macarthurjustice.org - and - David J. Utter, Esq. Scott C. Robichaux, Esq. William R. Claiborne, Esq. THE CLAIBORNE FIRM, P.C. 410 East Bay Street Savannah, GA 31401 Telephone: (912) 236-9559 Facsimile: (912) 236-1884 E-mail: david@claibornefirm.com will@claibornefirm.com - and - Jacob G. Longman, Esq. LONGMAN JAKUBACK, A PROFESSIONAL LAW CORPORATION 830 Main St. Baton Rouge, LA 70802 Telephone: (225) 383-3644 Facsimile: (225) 336-4667 E-mail: jacob@ljlaw.org - and - Miriam R. Nemeth, Esq. Tiffany Yang, Esq. ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L. Street NW, Suite 850 Washington, DC 20005 Telephone: (202) 728-9557 Facsimile: (202) 728-9558 E-mail: mnemeth@advancementproject.org tyang@advancementproject.org MAINE: Faces Suit Over Mismanaged Foster Children's Mental Health ----------------------------------------------------------------- BRYAN C. and HENRY B. through their next friend MICHAEL P. DIXON; TRENT W., GRAYSON M., and KENDALL P. through their next friend TAYLOR S. KILGORE; and NEVILLE H. through his next friend SANDRA ROMANO-SHAIN, individually and on behalf of all others similarly situated, Plaintiffs v. JEANNE M. LAMBREW in her official capacity as Commissioner of the Maine Department of Health and Human Services; and TODD A. LANDRY in his official capacity as Director of the Maine Office of Child and Family Services, Defendants, Case No. 1:21-cv-00005-NT (D. Me., Jan. 6, 2021) is brought on behalf of a putative class of Maine foster children who are or will be administered psychotropic medications in the State's custody and, hence, are subjected to a substantial risk of serious harm through the State's oversight failures. The Plaintiffs allege in the complaint that for about a decade, Maine's Department of Health and Human Services ("DHHS") and Office of Child and Family Services ("OCFS") have openly acknowledged the serious risks associated with psychotropic medication administered to foster children as well as their duty to maintain robust protections to protect Maine foster children against these dangers. Unfortunately, however, Maine has never created an adequate system to protect foster children in its care. Instead, DHHS and OCFS acknowledged their own system's failures. The same systemic failures have persisted for years as the State has continued to receive scrutiny. For instance, in late 2018, Maine was criticized by the federal Department of Health and Human Services OIG for having one of the worst systems in the nation with respect to its oversight and management of psychotropic medications for foster children. Maine DHHS and OCFS continue to permit hundreds of foster children to be administered one or more dangerous psychotropic drugs without ensuring the provision of sufficient oversight mechanisms critical for their safety, knowingly exposing vulnerable children in their care to life-threatening risks. As a result of these failures, hundreds of preschoolers through teens in Maine's foster care system remain at an unreasonable risk of serious harm with each passing day. They take heavy cocktails of psychotropic medications that can, and do, lead to serious, life-altering physical and psychological harms—without proper structures in place by Defendants to identify and guard against these harms. The Plaintiffs are represented by: John A. Woodcock III, Esq. Eben M. Albert, Esq. BERNSTEIN, SHUR, SAWYER & NELSON, P.A. 100 Middle Street PO Box 9729 Portland, ME 04101 Telephone: (207) 774-1200 Facsimile: (207) 774-1127 E-mail: jwoodcock@bernsteinshur.com ealbert@bernsteinshur.com -and- Marissa C. Nardi, Esq. Samantha Bartosz, Esq. Stephen Dixon, Esq. Jonathan King, Esq. Madeleine M. Kinney, Esq. Claire R. Glasspiegel, Esq. CHILDREN'S RIGHTS 88 Pine Street, Suite 800 New York, New York 10005 Telephone: (212) 683-2210 Facsimile: (212) 683-4015 E-mail: mnardi@childrensrights.org sbartosz@childrensrights.org sdixon@childrensrights.org jking@childrensrights.org mkinney@childrensrights.org cglasspiegel@childrensrights.org -and- Frank D'Alessandro, Esq. MAINE EQUAL JUSTICE 126 Sewall Street Augusta, ME 04330 Telephone: (207) 626-7058 Facsimile: (207) 621-8148 E-mail: frank@mejp.org MANTECH INT'L: Plan Members Suit Assert Employee Fund Mismanagement ------------------------------------------------------------------- Christopher J. Gerken, Dennis Kemp, Travis Knight and Angelique Perkins, individually and on behalf of all others similarly situated, v. Mantech International Corporation, Board of Directors of Mantech International Corporation, The Retirement Plan Committee, and John Does 1-30, Defendants, Case No. 20-cv-01536, (E.D. Va., December 15, 2020) asserts claims for breach of the fiduciary duties of loyalty and prudence and failure to monitor fiduciaries pursuant to Sections 409 and 502 of the Employee Retirement Income Security Act of 1974. Mantech is a defense contracting firm and is the Plan sponsor of its defined contribution retirement plans where Gerken and Kemp are participants during their employment with Mantech. They claim that Mantech failed to consider the use of lower cost share classes causing the Plan to pay millions of dollars per year in unnecessary fees and/or obtaining reasonable fees for investment options and recordkeeping/administration fees. [BN] Plaintiff is represented by: Charles L. Williams, Esq. WILLIAMS & SKILLING P.C. 7104 Mechanicsville Turnpike, Suite 204 Mechanicsville, VA 23111 Telephone: (804) 447-0307, ext. 305 Facsimile: (804) 447-0367 Email: cwilliams@williamsandskilling.com - and - Mark K. Gyandoh, Esq. CAPOZZI ADLER, P.C. 312 Old Lancaster Road Merion Station, PA 19066 Telephone: (610) 890-0200 Facsimile: (717) 233-4103 Email: markg@capozziadler.com - and - Donald R. Reavey, Esq. CAPOZZI ADLER, P.C. 2933 North Front Street Harrisburg, PA 17110 Telephone: (717) 233-4101 Facsimile: (717) 233-4103 Email: donr@capozziadler.com MARCHELLO'S GARDEN: Herrera Sues Over Bussers' Unpaid OT Wages -------------------------------------------------------------- Maria Rivas Herrera, individually and on behalf of all others similarly situated v. Marchello's Garden Grill, Inc., Frederick Marsilio and Gloria Marsilio, Case No. 2:20-cv-06354 (E.D.N.Y., Dec. 30, 2020) seeks to remedy overtime, spread of hours, wage statement, wage notice and uniform maintenance pay violations of the Fair Labor Standards Act and the New York Labor Law. Ms. Herrera was employed by the Defendants as a busser from on or about August 13, 2019 until on or about July 4, 2020. Marchello's Garden Grill, Inc. is a grill restaurant which maintains a principal place of business in Smithtown, New York.[BN] The Plaintiff is represented by: Steven J. Moser, Esq. MOSER LAW FIRM, P.C. 5 E. Main Street Huntington, NY 11743 Telephone: (516) 671-1150 E-mail: smoser@moseremploymentlaw.com MDL 2738: Beniamen's Talcum Powder Suit Transferred to N.J. ----------------------------------------------------------- Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transferred an action to the District of New Jersey and, with the consent of that court, assigned it to Judge Freda L. Wolfson for coordinated or consolidated pretrial proceedings in the case, In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, MDL No. 2738. The original complaint, Beniamen, et al. V. Johnson & Johnson, et al., Case No. 1:20-01793 (N.D. Ohio, August 12, 2020), involves allegations that Johnson & Johnson's talcum powder products cause ovarian cancer following perineal application. Plaintiffs in the Beniamen action moved under Panel Rule 7.1 to vacate the Panel's prior order that conditionally transferred Beniamen to the District of New Jersey for inclusion in MDL No. 2738. Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. opposed the motion. The Panel held that the action involves common questions of fact with the actions transferred to MDL No. 2738, and that transfer under 28 U.S.C. Section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. A full-text copy of the Court's December 15, 2020 Transfer Order is available at https://bit.ly/38naFPA MDL 2804: 15 Opioid Suits Transferred to N.D. Ohio -------------------------------------------------- In the case, In Re: National Prescription Opiate Litigation, MDL No. 2804, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transferred 15 actions to the U.S. District Court for the Northern District of Ohio and, with the consent of that court, assigned them to Judge Dan A. Polster for coordinated or consolidated pretrial proceedings. The Plaintiffs in the 15 actions and Northern District of Mississippi defendant North Mississippi Medical Center moved under Panel Rule 7.1 to vacate the orders conditionally transferring their respective actions to MDL No. 2804. Various responding defendants opposed the motions. The motion to vacate the CTO in the Northern District of Mississippi action was unopposed. After considering the arguments of counsel, the Panel held that the actions involve common questions of fact with the actions previously transferred to MDL No. 2804, and that transfer under 28 U.S.C. section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, the transfer is warranted for the reasons set forth in the Panel's prior order directing centralization. In that order, the Panel held that the Northern District of Ohio was an appropriate Section 1407 forum for actions sharing factual questions regarding the allegedly improper marketing and distribution of various prescription opiate medications into states, cities, and towns across the country. The plaintiffs and the defendant oppose transfer by principally arguing that federal jurisdiction is lacking over their cases. But opposition to transfer based on a jurisdictional challenge is insufficient to warrant vacating conditional transfer of factually related cases, the Panel held. Most opponents of transfer also argue that including their actions in this large MDL will cause them inconvenience and delay the progress of their actions, including the resolution of their remand motion. Given the undisputed factual overlap with the MDL proceedings, transfer is justified in order to facilitate the efficient conduct of the litigation as a whole, the Panel said. The defendants are Amerisourcebergen Corp. and Amerisourcebergen Drug Corp., Cardinal Health, Inc., and McKesson Corp., Actavis, LLC, Actavis Pharma, Inc., Cephalon, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Hikma Pharmaceuticals USA Inc., Janssen Pharmaceutica, Inc., Janssen Pharmaceuticals, Inc., Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, Inc., Par Pharmaceuticals, Inc., Par Pharmaceutical Companies, Inc., Teva Pharmaceutical Industries Ltd., Teva Pharmaceuticals USA, Inc. and Watson Laboratories, Inc. A full-text copy of the Court's December 15, 2020 Transfer Order is available at https://bit.ly/2JXDB7E MDL 2875: 4 Suits Over Hypertension Meds Moved to D. N.J. --------------------------------------------------------- In the case, In re: Valsartan, Losartan, and Irbesartan Products Liability Litigation, MDL No. 2875, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers four action to the U.S. District Court for the District of New Jersey and, with the consent of that court, assigned them to Judge Robert B. Kugler for coordinated or consolidated pretrial proceedings. Two cases in the Middle District of Alabama and two cases in the Southern District of Alabama involve allegations that the Defendants' generic formulations of valsartan, losartan, and irbesartan contain nitrosamine impurities that presented a risk of cancer and other injuries. Defendants are Teva Pharmaceuticals USA, Inc., Major Pharmaceuticals, Inc., Aurobindo Pharma USA, Inc., Aurobindo Pharma, Limited, Mylan Pharmaceuticals, Inc., Zhejiang Huahai Pharmaceutical Co. Ltd., Prinston Pharmaceutical Inc. and Solco Healthcare U.S., LLC. A full-text copy of the Court's December 15, 2020 Transfer Order is available at https://bit.ly/397BW88 MDL 2885: 3M Suit v. TCA Transferred to N.D. Fla. ------------------------------------------------- In the case, 3M Combat Arms Earplug Product Liability Litigation, MDL No. 2885, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transferred one action to the U.S. District Court for the Northern District of Florida and, with the consent of that court, assigned it to Judge M. Casey Rodgers for coordinated or consolidated pretrial proceedings. Plaintiffs 3M Company, 3M Occupational Safety LLC, Aearo Holding LLC, Aearo Intermediate LLC, Aearo LLC, and Aearo Technologies LLC moved under Panel Rule 7.1 to vacate the Panel's prior order that conditionally transferred the case to the Northern District of Florida for inclusion in MDL No. 2885. Defendant Top Class Actions and plaintiffs in MDL No. 2885, through court-appointed leadership counsel, opposed the motion to vacate. After considering the argument of counsel, Judge Caldwell said the action involves common questions of fact with the actions transferred to MDL No. 2885, and that transfer under 28 U.S.C. Section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. 3M Company, et al. v. Top Class Actions LLC, 2:20-mc-00031 (D. Ariz., June 19, 2020), involves 3M's motion to compel compliance with a subpoena duces tecum it served on Top Class Actions, which operates a website that contains content about class action settlements, investigations and lawsuits, including attorney advertising. 3M sold dual-ended Combat Arms Earplugs to the US Armed Forces for use as hearing protection for military personnel, protecting against the disorienting effects of loud impulse noises such as improvised explosive devices and gun fire, yet still allow the service member to hear low-level noises critical to mission safety such as commands, footsteps and encroaching enemies. It, however, dislodges from the ear in a manner that is imperceptible to the wearer, hence the original product suit. The subpoena sought documents relating to prospective MDL No. 2885 plaintiffs, including, (1) prospective claimants' submissions to TCA's website regarding potential claims and damages; (2) marketing or advertising to join MDL No. 2885; (3) communications between plaintiffs' law firms and TCA; (4) referrals of prospective plaintiffs to a lawyer; and (5) financial interest or ownership that any plaintiffs' law firm has in TCA. TCA has objected to the production of the requested documents on grounds that they are protected by the attorney-client privilege and/or constitute attorney work product. Plaintiffs argued that transfer is not appropriate because the subpoena dispute between TCA and 3M shares no common questions of fact with plaintiffs' claims in the MDL as to the design, testing, sale, and marketing of Combat Arms earplugs. Rather, they argue, the dispute centers on legal issues concerning the scope of client confidentiality, the attorney-client privilege, and the attorney work product doctrine. Plaintiffs also argued that the District of Arizona has expended considerable effort to consider the parties' briefs on 3M's motion to compel. Judge Caldwell said the subpoena action undoubtedly shares common factual questions with MDL No. 2885. The subpoena was issued by the transferee court, and it concerns discovery from a third party relating to the claims and injuries of MDL No. 2885 plaintiffs. 3M conceded the subpoena "arises out of" MDL No. 2885. TCA consented to transfer, and the affected MDL No. 2885 plaintiffs have sought, through counsel, to intervene in TCA. Both MDL No. 2885 defendants as plaintiffs in TCA and MDL No. 2885 plaintiffs as potential intervenors are involved in this action. The transferee court therefore is well placed to resolve 3M's motion to compel and the MDL plaintiffs' challenges to the subpoena -- challenges that may well be repeated with respect to other subpoenas and other third parties -- given its familiarity with the factual and legal issues in MDL No. 2885. The District of Arizona court continued a hearing on the motion to compel and first will hear the MDL No. 2885 plaintiffs' motion to intervene and transfer, and TCA's motion to transfer. Requiring a judge in the District of Arizona to familiarize himself with the particulars of MDL No. 2885 would not promote the just and efficient conduct of this action or the litigation as a whole, as "the transferee judge is so thoroughly familiar with the issues in this litigation," Judge Caldwell pointed out. A full-text copy of the Court's December 16, 2020 Transfer Order is available at https://bit.ly/3npYUfw MDL 2924: Generic Manufacturers & Repackagers Win Dismissal Bid --------------------------------------------------------------- In the multidistrict litigation titled IN RE ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL No. 20-MD-2924 (S.D. Fla.), District Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida granted Defendant Generic Manufacturers' and Repackagers' Rule 12 Motion to Dismiss on the Ground of Preemption. The litigation concerns the pharmaceutical product Zantac and its generic forms, which are widely sold as heartburn and gastric treatments. The molecule in question -- ranitidine -- is the active ingredient in both Zantac and its generic forms. Zantac has been sold since the early 1980s, first by prescription and later as an over-the-counter medication. In 1983, the U.S. Food and Drug Administration ("FDA") approved the sale of prescription Zantac. GlaxoSmithKline ("GSK") first developed and patented Zantac. Zantac was a blockbuster -- the first drug in history to reach $1 billion annually in sales. GSK entered into a joint venture with Warner-Lambert in 1993 to develop an over-the-counter ("OTC") form of Zantac. Beginning in 1995, the FDA approved the sale of various forms of OTC Zantac. The joint venture between GSK and Warner-Lambert ended in 1998, with Warner-Lambert retaining control over the sale of OTC Zantac in the United States and GSK retaining control over the sale of prescription Zantac in the United States. Pfizer acquired Warner-Lambert in 2000 and took control of the sale of OTC Zantac in the United States. The right to sell OTC Zantac in the United States later passed to Boehringer Ingelheim Pharmaceuticals and then to Sanofi. When the patents on prescription and OTC Zantac expired, numerous generic drug manufacturers began to produce generic ranitidine products in prescription and OTC forms. Scientific studies have demonstrated that ranitidine can transform into a cancer-causing molecule called N-nitrosodimethylamine ("NDMA"), which is part of a carcinogenic group of compounds called N-nitrosamines. Studies have shown that these compounds increase the risk of cancer in humans and animals. The FDA, the Environmental Protection Agency, and the International Agency for Research on Cancer consider NDMA to be a probable human carcinogen. The FDA has set the acceptable daily intake level for NDMA at 96 nanograms. Valisure LLC and ValisureRX LLC, a pharmacy and testing laboratory, filed a Citizen Petition on Sept. 9, 2019, calling for the recall of all ranitidine products due to high levels of NDMA in the products. The FDA issued a statement on September 13 warning that some ranitidine products may contain NDMA. On November 1, the FDA announced that testing had revealed the presence of NDMA in ranitidine products. It recommended that drug manufacturers recall ranitidine products with NDMA levels above the acceptable daily intake level. Six months later, on April 1, 2020, the FDA requested the voluntary withdrawal of all ranitidine products from the market. After the discovery that ranitidine products may contain NDMA, the Plaintiffs across the country began initiating lawsuits related to their purchase and/or use of the products. On Feb. 6, 2020, the U.S. Judicial Panel on Multidistrict Litigation created the multi-district litigation ("MDL") for all pretrial purposes and ordered federal lawsuits for personal injury and economic damages from the purchase and/or use of ranitidine products to be transferred to Judge Rosenberg. Since that time, hundreds of Plaintiffs have filed lawsuits in, or had their lawsuits transferred to the Court. In addition, this Court has created a Census Registry where thousands of claimants, who have not filed lawsuits have registered their claims. The Plaintiffs filed three Master Complaints on June 22, 2020. They have set forth their factual allegations in three "master" complaints: The Master Personal Injury Complaint ("MPIC"), the Consolidated Consumer Class Action Complaint ("CCCAC"), and the Consolidated Third Party Payor Class Complaint ("CTPPCC") (collectively "Master Complaints"). The Plaintiffs contend that the ranitidine molecule is unstable, breaks down into NDMA, and has caused thousands of consumers of ranitidine products to develop various forms of cancer. They allege that "a single pill of ranitidine can contain quantities of NDMA that are hundreds of times higher" than the FDA's allowable limit. They are pursuing federal claims and state claims under the laws of all 50 U.S. states, Puerto Rico, and the District of Columbia. The entities named as Defendants are alleged to have designed, manufactured, tested, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine products. The MPIC raises claims against parties referred to as Generic Manufacturer Defendants that allegedly manufactured generic ranitidine products. It further raises claims against parties referred to as Repackager Defendants that allegedly repackaged ranitidine products into different containers and changed the content on an original manufacturer's label to note the drug was distributed or sold under the relabeler's own name, without manipulating, changing, or affecting the composition or formulation of the drug. Some of the parties categorized as Generic Manufacturer Defendants are also categorized as Repackager Defendants. The parties named as Generic Manufacturer Defendants and as Repackager Defendants are not identical among the Master Complaints. The MPIC contains 15 counts: Strict Products Liability -- Failure to Warn, Strict Products Liability -- Design Defect, Strict Products Liability—Manufacturing Defect, Negligence -- Failure to Warn, Negligence Product Design, Negligent Manufacturing, General Negligence, Negligent Misrepresentation, Breach of Express Warranties, Breach of Implied Warranties, Violation of Consumer Protection and Deceptive Trade Practices Laws, Unjust Enrichment, Loss of Consortium, Survival Actions, and Wrongful Death. Each count is brought against Generic Manufacturer Defendants. All of these counts, other than the Strict Products Liability -- Manufacturing Defect and Negligent Manufacturing counts, are also brought against Repackager Defendants. The CCCAC also raises claims against parties referred to as Generic Manufacturer Defendants and Repackager Defendants. The CCCAC contains 314 counts on behalf of putative nationwide and state classes. The putative nationwide class alleges counts for unjust enrichment, violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301, et seq. ("MMWA"), and common law fraud. The putative state classes allege counts for negligence, battery, product-liability, breach-of-warranty, consumer-protection, and medical-monitoring causes of action. The CTPPCC raises claims against parties referred to as Generic Manufacturer Defendants. It contains nine counts on behalf of a putative nationwide class of Third Party Payors that allegedly paid for prescription medications for others or, alternatively, on behalf of putative state classes. The putative class alleges counts of Breach of Express Warranties, Breach of Implied Warranties, Violation of the MMWA, Fraud, Negligent Misrepresentation and Omission, Violations of State Consumer Protection Laws, Unjust Enrichment, and Negligence. The Court has entered numerous Pretrial Orders to assist in the management of the MDL. In Pretrial Order # 30, it set a case management schedule that is intended to prepare the MDL for the filing of Daubert motions on general causation and class certification motions in December 2021; see generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). In Pretrial Order # 36, the Court set a schedule for the filing and briefing of motions to dismiss under Federal Rule of Civil Procedure 12 directed to the Master Complaints. The Defendants filed the instant Motion to Dismiss pursuant to that schedule. The Defendants argue in the Motion to Dismiss that all of the Plaintiffs' state-law claims against them, regardless of how labeled and pled, are claims for design defect or failure to warn. The Supreme Court has ruled in two significant opinions -- PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013) -- that such claims against generic drug manufacturers are pre-empted because they cannot remedy design defects or provide additional warnings while remaining in compliance with federal law. The Supreme Court's rulings apply with equal force to repackagers. Therefore, all of the state-law claims against Defendants must be dismissed. And because the Plaintiffs' only federal claims against the Defendants, for violations of the MMWA, require a valid state-law warranty claim, the MMWA claims must be dismissed as well. Additionally, 21 U.S.C. Section 379r prohibits the Plaintiffs from obtaining damages in the form of refunds for the purchase of OTC ranitidine products. The Plaintiffs respond that none of their state-law claims against the Defendants are pre-empted under Mensing and Bartlett. Their claims are not pre-empted because the claims are based on the fact that ranitidine products were misbranded when sold and on the Defendants' failure to take actions that they could have taken while remaining in compliance with federal law. In addition, the Repackager Defendants can be held liable under an absolute-liability theory because they profited from the marketing of ranitidine products. Because the Plaintiffs' state-law warranty claims are not pre-empted, the MMWA claims are viable as well. Section 379r does not prohibit the Plaintiffs from obtaining damages in the form of refunds for the purchase of OTC ranitidine products. Judge Rosenberg opines that the design-defect and failure-to-warn claims that the Supreme Court ruled in Mensing and Bartlett are pre-empted as against generic drug manufacturers are pre-empted as against the Defendants, regardless of the Plaintiffs' allegations that ranitidine products were misbranded. The Plaintiffs' claims based on alleged product and labeling defects that the Defendants could not independently change while remaining in compliance with federal law are dismissed with prejudice as pre-empted. Because all of the Plaintiffs' counts against the Defendants in the Master Complaints incorporate such allegations, all counts against the Defendants are dismissed, Judge Rosenberg holds. The Plaintiffs' claims against the Repackager Defendants that rely on absolute liability are dismissed with prejudice. The Court grants the Plaintiffs leave to replead claims based on expiration dates, testing, storage and transportation conditions, warning the FDA, manufacturing defects, and the MMWA, as well as to replead their derivative counts. Under Pretrial Order # 36, the Plaintiffs' repled Master Complaints are due 30 days after the Court issues its Order on Article III standing. The Court amends that requirement in Pretrial Order # 36. The Plaintiffs' repled Master Complaints are due 30 days after the Court issues its forthcoming Order on Branded Defendants' Rule 12 Partial Motion to Dismiss Plaintiffs' Three Complaints as Preempted by Federal Law. All other requirements in Pretrial Order # 36 remain in place. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y3jz5kap from Leagle.com. MDL 2924: Innovator-Liability Claims in Zantac Litigation Tossed ---------------------------------------------------------------- District Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida grants the Brand-Name Manufacturer Defendants' motion to dismiss the Plaintiffs' innovator-liability claims in the multidistrict litigation styled IN RE ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL No. 20-MD-2924 (S.D. Fla.). The litigation concerns the pharmaceutical product Zantac and its generic forms, which are widely sold as heartburn and gastric treatments. The molecule in question--ranitidine--is the active ingredient in both Zantac and its generic forms. Zantac has been sold since the early 1980s, first by prescription and later as an over-the-counter medication. In 1983, the U.S. Food and Drug Administration ("FDA") approved the sale of prescription Zantac. GlaxoSmithKline ("GSK") first developed and patented Zantac. Zantac was a blockbuster--the first drug in history to reach $1 billion annually in sales. GSK entered into a joint venture with Warner-Lambert in 1993 to develop an over-the-counter ("OTC") form of Zantac. Beginning in 1995, the FDA approved the sale of various forms of OTC Zantac. The joint venture between GSK and Warner-Lambert ended in 1998, with Warner-Lambert retaining control over the sale of OTC Zantac in the United States and GSK retaining control over the sale of prescription Zantac in the United States. Pfizer acquired Warner-Lambert in 2000 and took control of the sale of OTC Zantac in the United States. The right to sell OTC Zantac in the United States later passed to Boehringer Ingelheim Pharmaceuticals and then to Sanofi. When the patents on prescription and OTC Zantac expired, numerous generic drug manufacturers began to produce generic ranitidine products in prescription and OTC forms. Scientific studies have demonstrated that ranitidine can transform into a cancer-causing molecule called N-nitrosodimethylamine ("NDMA"), which is part of a carcinogenic group of compounds called N-nitrosamines. Studies have shown that these compounds increase the risk of cancer in humans and animals. The FDA, the Environmental Protection Agency, and the International Agency for Research on Cancer consider NDMA to be a probable human carcinogen. The FDA has set the acceptable daily intake level for NDMA at 96 nanograms. Valisure LLC and ValisureRX LLC, a pharmacy and testing laboratory, filed a Citizen Petition on Sept. 9, 2019, calling for the recall of all ranitidine products due to high levels of NDMA in the products. The FDA issued a statement on September 13 warning that some ranitidine products may contain NDMA. On November 1, the FDA announced that testing had revealed the presence of NDMA in ranitidine products. The FDA recommended that drug manufacturers recall ranitidine products with NDMA levels above the acceptable daily intake level. Six months later, on April 1, 2020, the FDA requested the voluntary withdrawal of all ranitidine products from the market. After the discovery that ranitidine products may contain NDMA, the Plaintiffs across the country began initiating lawsuits related to their purchase and/or use of the products. On Feb. 6, 2020, the U.S. Judicial Panel on Multidistrict Litigation created the multi-district litigation ("MDL") for all pretrial purposes and ordered federal lawsuits for personal injury and economic damages from the purchase and/or use of ranitidine products to be transferred to Judge Rosenberg. Since that time, hundreds of Plaintiffs have filed lawsuits in, or had their lawsuits transferred to, the Court. In addition, the Court has created a Census Registry where thousands of claimants, who have not filed lawsuits have registered their claims. The Plaintiffs filed three Master Complaints on June 22, 2020. They have set forth their factual allegations in three "master" complaints: the Master Personal Injury Complaint ("MPIC"), the Consolidated Consumer Class Action Complaint ("CCCAC"), and the Consolidated Third Party Payor Class Complaint ("CTPPCC") (collectively "Master Complaints"). The Plaintiffs contend that the ranitidine molecule is unstable, breaks down into NDMA, and has caused thousands of consumers of ranitidine products to develop various forms of cancer. The Plaintiffs allege that "a single pill of ranitidine can contain quantities of NDMA that are hundreds of times higher" than the FDA's allowable limit. The Plaintiffs are pursuing federal claims and state claims under the laws of all 50 U.S. states, Puerto Rico, and the District of Columbia. The entities named as defendants are alleged to have designed, manufactured, tested, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine products. The Court has entered numerous Pretrial Orders to assist in the management of the MDL. In Pretrial Order # 30, the Court set a case management schedule that is intended to prepare the MDL for the filing of Daubert motions on general causation and class certification motions in December 2021. In Pretrial Order # 36, the Court set a schedule for the filing and briefing of motions to dismiss under Federal Rule of Civil Procedure 12 directed to the Master Complaints. The Defendants filed the instant Motion to Dismiss pursuant to that schedule. For the purposes of the Order, the Court's references to the "Plaintiffs" are to only those Plaintiffs, who allegedly were injured solely by generic ranitidine products, not by brand-name ranitidine products. While there are 15 counts asserted against the Defendants in the MPIC, the Plaintiffs acknowledged at the Hearing that the only substantive counts they are pursuing against the Defendants are Counts VII and VIII. Count VII is a claim for general negligence. The Plaintiffs allege that the Defendants breached their duty of reasonable care and failed to exercise ordinary care in the design, manufacture, testing, marketing, labeling, packaging, handling, distribution, storage, and/or sale of ranitidine-containing products. Count VIII is a claim for negligent misrepresentation. The Plaintiffs allege that the Defendants "owed a duty to them to make accurate and truthful representations regarding ranitidine-containing products" and breached that duty. In the Order, the Court refers to Counts VII and VIII as the Plaintiffs' "negligence-based claims." Additionally, Counts XIII through XV are derivative claims and include: loss of consortium, survival actions, and wrongful death. The Defendants filed the instant Motion to Dismiss seeking the dismissal of all claims asserted against them under the Plaintiffs' theory of liability in all individual complaints, the MPIC, and Short Form Complaints adopting the MPIC. They argue that the claims brought in jurisdictions other than California and Massachusetts fail as a matter of law because those jurisdictions have yet to recognize the Plaintiffs' theory of liability under their tort regimes. Although California and Massachusetts recognize the Plaintiffs' theory of liability under their respective tort regimes, the Plaintiffs cannot assert their claims in the courts of those states because neither state has personal jurisdiction over the Defendants. The Defendants also argue that the Plaintiffs' claims fail even in those states in which the Defendants are subject to general jurisdiction because those states are constrained by the Due Process Clause from applying the law of California or Massachusetts to the Plaintiffs' claims. The Plaintiffs argue that, in order to determine whether their theory of liability is viable under the laws of the jurisdictions that have not explicitly accepted or rejected it, the Court must make an Erie prediction by examining the law of each jurisdiction. They aver that these jurisdictions are likely to find their theory of liability viable. California and Massachusetts courts have specific personal jurisdiction over the Defendants because of the Defendants' alleged targeted marketing and labeling activities in those states. Because California and Massachusetts courts have specific personal jurisdiction over the Defendants, California and Massachusetts courts also have legislative jurisdiction in other states and territories with personal jurisdiction over the Defendants, the Plaintiffs add. The Court ordered supplemental briefing from the Plaintiffs and responsive supplemental briefing from the Defendants on the issue of whether their theory of liability may be viable under the laws of each jurisdiction that has yet to accept or reject the theory. Thus, the parties provided briefing for the 35 remaining jurisdictions. The Court undertook the requisite Erie predictions, as set forth in Appendix A to the Order, and concludes that none of the 35 jurisdictions that the Court analyzed would recognize the Plaintiffs' theory of liability under which the Defendants may be held liable for injuries sustained by the Plaintiffs' ingestion of a product that the Defendants did not manufacture, sell, or distributed. Additionally, the Court concludes that the Plaintiffs failed to allege a prima facie case of specific personal jurisdiction as to any Defendant in California or Massachusetts and that California and Massachusetts do not have legislative jurisdiction within those states that have general personal jurisdiction over the Defendants. Therefore, the Court grants the Motion to Dismiss. The Plaintiffs' claims are dismissed without prejudice and with leave to amend to plead a prima facie case of personal jurisdiction in California and Massachusetts, with the exception of Patheon Manufacturing Services, LLC. All claims brought by the Plaintiffs against the Defendants in courts outside of California and Massachusetts are dismissed without prejudice and with leave to amend consistent with the Order. Leave to amend is granted as to the MPIC. At this time, the Court is not requiring any individual complaints or Short Form Complaints to be amended. Under Pretrial Order # 36, the Plaintiffs' repled Master Complaints are due 30 days after the Court issues its Order on Article III standing. The Court amends that requirement in Pretrial Order # 36. The Plaintiffs' repled Master Complaints are due 30 days after the Court issues its forthcoming Order on Branded Defendants' Rule 12 Partial Motion to Dismiss Plaintiffs' Three Complaints as Preempted by Federal Law. All other requirements in Pretrial Order # 36 remain in place. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/yypfzy44 from Leagle.com. MDL 2924: Master Personal Injury Complaint Tossed in Zantac Suit ---------------------------------------------------------------- In the multidistrict litigation captioned IN RE ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL No. 20-MD-2924 (S.D. Fla.), District Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida issued an order: (1) granting the Defendants' Motion to Dismiss and/or Strike Master Personal Injury Complaint on Grounds of Impermissible Shotgun Pleading and Incorporated Memorandum of Law ("MPIC Shotgun Motion"); (2) granting in part and denying in part the Defendants' Amended Motion to Dismiss and/or Strike Consolidated Consumer and Third Party Payor Class Action Complaints on Grounds of Impermissible Shotgun Pleading and Lack of Article III Standing and Incorporated Memorandum of Law ("Shotgun/Standing Motion"); and (3) denying Generic Manufacturers' and Repackagers' Rule 12 Motion to Dismiss Consolidated Consumer and Third-Party Payor Class Action Complaints on the Ground of Failure to Allege an Injury and Incorporated Memorandum of Law ("Injury Motion"). All "Defendants" named in the Master Personal Injury Complaint ("MPIC") bring the MPIC Shotgun Motion. All "Defendants" named in the Consolidated Consumer Class Action Complaint ("CCCAC") and the Consolidated Third Party Payor Class Complaint ("CTPPCC") bring the Shotgun/Standing Motion. The "Generic Manufacturer Defendants" and "Repackager Defendants," as those groups are defined in the CCCAC and CTPPCC, bring the Injury Motion. The litigation concerns the pharmaceutical product Zantac and its generic forms, which are widely sold as heartburn and gastric treatments. The molecule in question--ranitidine--is the active ingredient in both Zantac and its generic forms. Zantac has been sold since the early 1980s, first by prescription and later as an over-the-counter medication. In 1983, the U.S. Food and Drug Administration ("FDA") approved the sale of prescription Zantac. GlaxoSmithKline ("GSK") first developed and patented Zantac. Zantac was a blockbuster -- the first drug in history to reach $1 billion annually in sales. GSK entered into a joint venture with Warner-Lambert in 1993 to develop an over-the-counter ("OTC") form of Zantac. Beginning in 1995, the FDA approved the sale of various forms of OTC Zantac. The joint venture between GSK and Warner-Lambert ended in 1998, with Warner-Lambert retaining control over the sale of OTC Zantac in the United States and GSK retaining control over the sale of prescription Zantac in the United States. Pfizer acquired Warner-Lambert in 2000 and took control of the sale of OTC Zantac in the United States. The right to sell OTC Zantac in the United States later passed to Boehringer Ingelheim Pharmaceuticals and then to Sanofi. When the patents on prescription and OTC Zantac expired, numerous generic drug manufacturers began to produce generic ranitidine products in prescription and OTC forms. Scientific studies have demonstrated that ranitidine can transform into a cancer-causing molecule called N-nitrosodimethylamine ("NDMA"), which is part of a carcinogenic group of compounds called N-nitrosamines. Studies have shown that these compounds increase the risk of cancer in humans and animals. The FDA, the Environmental Protection Agency, and the International Agency for Research on Cancer consider NDMA to be a probable human carcinogen. The FDA has set the acceptable daily intake level for NDMA at 96 nanograms. Valisure LLC and ValisureRX LLC, a pharmacy and testing laboratory, filed a Citizen Petition on Sept. 9, 2019, calling for the recall of all ranitidine products due to high levels of NDMA in the products. The FDA issued a statement on September 13 warning that some ranitidine products may contain NDMA. On November 1, the FDA announced that testing had revealed the presence of NDMA in ranitidine products. The FDA recommended that drug manufacturers recall ranitidine products with NDMA levels above the acceptable daily intake level. Six months later, on April 1, 2020, the FDA requested the voluntary withdrawal of all ranitidine products from the market. After the discovery that ranitidine products may contain NDMA, Plaintiffs across the country began initiating lawsuits related to their purchase and/or use of the products. On Feb. 6, 2020, the U.S. Judicial Panel on Multidistrict Litigation created the multi-district litigation ("MDL") for all pretrial purposes and ordered federal lawsuits for personal injury and economic damages from the purchase and/or use of ranitidine products to be transferred to Judge Rosenberg. Since that time, hundreds of Plaintiffs have filed lawsuits in, or had their lawsuits transferred to, the Court. In addition, the Court has created a Census Registry where thousands of claimants, who have not filed lawsuits have registered their claims. The Plaintiffs filed three Master Complaints on June 22, 2020. They have set forth their factual allegations in three "master" complaints: The Master Personal Injury Complaint ("MPIC"), the Consolidated Consumer Class Action Complaint ("CCCAC"), and the Consolidated Third Party Payor Class Complaint ("CTPPCC"). The Plaintiffs contend that the ranitidine molecule is unstable, breaks down into NDMA, and has caused thousands of consumers of ranitidine products to develop various forms of cancer. They allege that a single pill of ranitidine can contain quantities of NDMA that are hundreds of times higher" than the FDA's allowable limit. They are pursuing federal claims and state claims under the laws of all 50 U.S. states, Puerto Rico, and the District of Columbia. The entities named as defendants are alleged to have designed, manufactured, tested, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine products. The Court has entered numerous Pretrial Orders to assist in the management of the MDL. In Pretrial Order # 30, it set a case management schedule that is intended to prepare the MDL for the filing of Daubert motions on general causation and class certification motions in December 2021. In Pretrial Order # 36, the Court set a schedule for the filing and briefing of motions to dismiss under Federal Rule of Civil Procedure 12 directed to the Master Complaints. Pursuant to that schedule, the various Defendants filed the motions to dismiss. On Dec. 14, 2020, the Court held a hearing on the MPIC Shotgun Motion, the Shotgun/Standing Motion, and the Injury Motion. The MPIC Shotgun Defendants seek to dismiss and/or strike the MPIC. They argue that the MPIC fails in two primary respects. First, it indiscriminately lumps the MPIC Shotgun Defendants' conduct together -- including distinct corporate entities--and "utterly fails to distinguish the alleged liability-creating conduct of one [MPIC Shotgun] Defendant from another." Second, each MPIC count adopts the allegations of all preceding counts. In doing so, the MPIC violates Rules 8 and 9(b) of the Federal Rules of Civil Procedure and frustrates the purpose of an MDL. The Shotgun/Standing Defendants ask the Court to dismiss and/or strike the Class Complaints and order the CCCAC Plaintiffs and CTPPCC Plaintiffs to replead in compliance with Rules 8 and 9, Article III, and the Eleventh Circuit's prohibitions against shotgun pleading. They argue that the Class Complaints should be dismissed or stricken as impermissible shotgun pleadings, since they fail to provide a short and plain statement of claims as required by Rule 8, and thus fail to provide adequate notice of the claims against each Shotgun/Standing Defendant and the grounds upon which each claim rests. The Injury Defendants argue that the Class Complaints must be dismissed in their entirety for failure to allege a cognizable injury. Instead of alleging a personal injury or another legally cognizable injury, the Class Complaints affirm ranitidine's efficacy, for it "did exactly what it was supposed to do without physically injuring any Class Plaintiffs," and, thus, the CCCAC Plaintiffs and CTPPCC Plaintiffs received the benefit of their bargain. The Injury Defendants contend that even if the Injury Plaintiffs could allege personal injuries, those claims must be placed in the MPIC rather than the CCCAC. Moreover, the tort-based claims in the CTPPCC must be dismissed pursuant to the economic loss doctrine, which forecloses such claims for purely economic losses relating to the product, absent personal injury or damage to other property. Lastly, the Court should dismiss the CCCAC Plaintiffs' requests for injunctive relief, namely those for medical monitoring and the removal of ranitidine from the market, since the former is actually a monetary remedy and the latter is already complete. The Court concludes that the MPIC is an impermissible shotgun pleading. It grants the MPIC Shotgun Motion, and the MPIC is dismissed without prejudice and with leave to amend. It concludes that the Class Complaints are both impermissible shotgun pleadings. The Court grants the Shotgun/Standing Motion in part, and the Class Complaints are dismissed without prejudice and with leave to amend. Because the current Class Complaints are shotgun pleadings and the Shotgun/Standing Plaintiffs are given leave to amend, the Court cannot undertake a full Article III standing analysis and thus denies the Shotgun/Standing Motion in part, but can reach conclusions as to certain issues raised by the parties. The Court denies the Injury Motion. It concludes that the Injury Plaintiffs have plausibly alleged an injury in fact as to their "Medical Monitoring" claims by alleging economic losses and expenses due to ongoing medical monitoring. However, given the allegations of personal injuries, the Court concludes that these claims do not belong in the CCCAC. All claims and allegations of physical injury and medical monitoring, including Counts 45, 67, 139, 167, 238, 280 and 302, are thus stricken without prejudice from the CCCAC. The Injury Plaintiffs may seek leave of Court for an alternative pleading to allege their class physical injury and/or medical monitoring claims. The Court declines to reach conclusions as to the Injury Plaintiffs' other theories of injury at this juncture. Finally, it denies the Injury Defendants' request to dismiss the injunctions sought for medical monitoring and ceasing sales and marketing of ranitidine products. Judge Rosenberg rules that the Master Personal Injury Complaint, Consolidated Consumer Class Action Complaint, and Consolidated Third Party Payor Class Complaint are dismissed without prejudice and with leave to amend consistent with the Order. All claims and allegations of physical injury and medical monitoring in the CCCAC, including Counts 45, 67, 139, 167, 238, 280 and 302, are stricken without prejudice. The Injury Plaintiffs may seek leave of Court for an alternative pleading to allege their class physical injury and/or medical monitoring claims. Under Pretrial Order # 36, the repled Master Complaints are due 30 days after the Court issues its Order on Article III standing. The Court amends that requirement in Pretrial Order # 36. The repled Master Complaints are due 30 days after the Court issues its forthcoming Order on Branded Defendants' Rule 12 Partial Motion to Dismiss Plaintiffs' Three Complaints as Preempted by Federal Law. All other requirements in Pretrial Order # 36 remain in place. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y5u2h446 from Leagle.com. MDL 2924: Retailers & Distributors Win Dismissal From Zantac Suit ----------------------------------------------------------------- District Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida entered an order in the multidistrict litigation styled IN RE ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, MDL No. 20-MD-2924 (S.D. Fla.): -- granting Defendant Retailers' Rule 12 Motion to Dismiss on the Grounds of Preemption, and the Defendant Distributors' Rule 12 Motion to Dismiss on the Ground of Preemption ("Defendants' First Round Motions to Dismiss"); and -- denying as moot the Retailers' Rule 12 Motion to Dismiss on State Law Grounds, and the Distributors' Rule 12 Motion to Dismiss on Various Group-Specific Grounds ("Defendants' Second Round Motions to Dismiss"). The litigation concerns the pharmaceutical product Zantac and its generic forms, which are widely sold as heartburn and gastric treatments. The molecule in question -- ranitidine -- is the active ingredient in both Zantac and its generic forms. Zantac has been sold since the early 1980s, first by prescription and later as an over-the-counter medication. In 1983, the U.S. Food and Drug Administration ("FDA") approved the sale of prescription Zantac. GlaxoSmithKline ("GSK") first developed and patented Zantac. Zantac was a blockbuster--the first drug in history to reach $1 billion annually in sales. GSK entered into a joint venture with Warner-Lambert in 1993 to develop an over-the-counter ("OTC") form of Zantac. Beginning in 1995, the FDA approved the sale of various forms of OTC Zantac. The joint venture between GSK and Warner-Lambert ended in 1998, with Warner-Lambert retaining control over the sale of OTC Zantac in the United States and GSK retaining control over the sale of prescription Zantac in the United States. Pfizer acquired Warner-Lambert in 2000 and took control of the sale of OTC Zantac in the United States. The right to sell OTC Zantac in the United States later passed to Boehringer Ingelheim Pharmaceuticals and then to Sanofi. When the patents on prescription and OTC Zantac expired, numerous generic drug manufacturers began to produce generic ranitidine products in prescription and OTC forms. Scientific studies have demonstrated that ranitidine can transform into a cancer-causing molecule called N-nitrosodimethylamine ("NDMA"), which is part of a carcinogenic group of compounds called N-nitrosamines. Studies have shown that these compounds increase the risk of cancer in humans and animals. The FDA, the Environmental Protection Agency, and the International Agency for Research on Cancer consider NDMA to be a probable human carcinogen. The FDA has set the acceptable daily intake level for NDMA at 96 nanograms. Valisure LLC and ValisureRX LLC, a pharmacy and testing laboratory, filed a Citizen Petition on Sept. 9, 2019, calling for the recall of all ranitidine products due to high levels of NDMA in the products. The FDA issued a statement on September 13 warning that some ranitidine products may contain NDMA. On November 1, the FDA announced that testing had revealed the presence of NDMA in ranitidine products. The FDA recommended that drug manufacturers recall ranitidine products with NDMA levels above the acceptable daily intake level. Six months later, on April 1, 2020, the FDA requested the voluntary withdrawal of all ranitidine products from the market. After the discovery that ranitidine products may contain NDMA, the Plaintiffs across the country began initiating lawsuits related to their purchase and/or use of the products. On Feb. 6, 2020, the U.S. Judicial Panel on Multidistrict Litigation created the multi-district litigation ("MDL") for all pretrial purposes and ordered federal lawsuits for personal injury and economic damages from the purchase and/or use of ranitidine products to be transferred to Judge Rosenberg. Since that time, hundreds of Plaintiffs have filed lawsuits in, or had their lawsuits transferred to, the Court. In addition, this Court has created a Census Registry where thousands of claimants, who have not filed lawsuits have registered their claims. The Plaintiffs filed three Master Complaints on June 22, 2020. They have set forth their factual allegations in three "master" complaints: the Master Personal Injury Complaint ("MPIC"), the Consolidated Consumer Class Action Complaint ("CCCAC"), and the Consolidated Third Party Payor Class Complaint ("CTPPCC") (collectively "Master Complaints"). The Plaintiffs contend that the ranitidine molecule is unstable, breaks down into NDMA, and has caused thousands of consumers of ranitidine products to develop various forms of cancer. The Plaintiffs allege that "a single pill of ranitidine can contain quantities of NDMA that are hundreds of times higher" than the FDA's allowable limit. The Plaintiffs are pursuing federal claims and state claims under the laws of all 50 U.S. states, Puerto Rico, and the District of Columbia. The entities named as defendants are alleged to have designed, manufactured, tested, marketed, distributed, labeled, packaged, handled, stored, and/or sold ranitidine products. The Court has entered numerous Pretrial Orders to assist in the management of the MDL. In Pretrial Order # 30, it set a case management schedule that is intended to prepare the MDL for the filing of Daubert motions on general causation and class certification motions in December 2021, citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). In Pretrial Order # 36, the Court set a schedule for the filing and briefing of motions to dismiss under Federal Rule of Civil Procedure 12 directed to the Master Complaints. The Defendants filed the instant Motions to Dismiss pursuant to that schedule. As to the Defendants' First Round Motions to Dismiss, the Defendants argue that all of the Plaintiffs' claims must be dismissed. They must be dismissed because the Plaintiffs' state-law claims are pre-empted by federal law and their sole federal claim must be dismissed without a state-law claim to support it. In Response, the Plaintiffs argue that their state-law claims are not pre-empted by federal law for two reasons. First, Supreme Court precedent supports the proposition that their claims are not pre-empted. Second, their claims are parallel with federal law--there is no conflict (and therefore no pre-emption) with federal law. As to the Defendants' Second Round Motions to Dismiss, the Defendants argue that a subset of the Plaintiffs' claims must be dismissed because they are precluded by state law. In Response, the Plaintiffs argue that exceptions in state law permit their claims to go forward. The Court concludes that all of the Plaintiffs' state-law claims against the Defendants are pre-empted by federal law and, as a result, are dismissed. Its dismissal is with prejudice except as to the Plaintiffs' general negligence and derivative counts, and as to their Magnuson-Moss Warranty Act count, all of which may be repled in accordance with the rulings in the Order. Without a state-law claim to support it, the Plaintiffs' sole federal claim is dismissed as well. The Court will permit the Plaintiffs to re-plead a general negligence claim, subject to certain rulings contained in this Order. Because the Court concludes that the Plaintiffs' claims are dismissed, the Defendants' Second Round Motions to Dismiss are moot. Under Pretrial Order # 36, the Plaintiffs' repled Master Complaints are due 30 days after the Court issues its Order on Article III standing. The Court amends that requirement in Pretrial Order # 36. The Plaintiffs' repled Master Complaints are due 30 days after the Court issues its forthcoming Order on the Branded Defendants' Rule 12 Partial Motion to Dismiss Plaintiffs' Three Complaints as Preempted by Federal Law. All other requirements in Pretrial Order # 36 remain in place. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y4hpbrhv from Leagle.com. MEDICAL FINANCIAL: Settlement Class Status Sought in FDCPA Suit --------------------------------------------------------------- In the class action lawsuit captioned as MISHUNA MOORE, individually and on behalf of all others similarly situated, v. MEDICAL FINANCIAL SERVICES, INC., Case No. 2:20-cv-02443-MSN-cgc (W.D. Tenn.), the Parties ask the Court to enter an order: 1. preliminarily certifying the Class for settlement purposes: "all individuals in the United States to whom, during the Class Period, the Defendant sent an initial collection letter attempting to collect a consumer debt, where the letter stated “Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office within 30 days from receiving this notice that you dispute the validity of this debt this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor;" The following persons (assuming they otherwise meet the class definition) will be excluded from the settlement class: a. any person who is already subject to an existing signed release that covers the claims raised in this lawsuit against MFSI; and b. any class member who timely mails a request for exclusion; 2. designating the Plaintiff as representative of the Class and designating the Plaintiff's attorneys as counsel for the Class; 3. authorize the form and mailing of the Notice; 4. setting a final hearing to determine whether the Settlement is fair, adequate, and reasonable; and 5. approving the Settlement and grant final judgment: Terms and Conditions of the Settlement: A. The Defendant shall pay $70,000 in full settlement of the claims of the Class. Upon final approval of this settlement, the settlement fund shall be distributed pro-rata among to the Members of the Class who timely submit claim forms. If a class member is deceased, the executor or administrator of the estate may submit the claim form. If the debtor has filed for bankruptcy protection, the bankruptcy trustee must approve the claim. B. The Defendant will also pay to Plaintiff Mishuna Moore a service award in the total amount of $2,500 in consideration of her individual claim and her service to the Class. C. Subject to approval of the Court, the Defendant shall pay, in addition to the amounts set forth above, the reasonable attorney's fees and expenses of the Plaintiffs attorneys in an amount not to exceed $40,000. The Defendant will not object to any application for an award of fees and costs that does not exceed $40,000. The Plaintiff is an individual who received a collection letter from the Defendant pertaining to an alleged past due medical debt. The Defendant is a Tennessee corporation that performs debt collection services for its corporate affiliates. The Plaintiff contends that the Defendant's collection letter violated the Fair Debt Collection Practices Act, specifically 15 U.S.C. section 1692g. The Plaintiff asserts that such conduct renders the Defendant liable for statutory damages under the FDCPA. The Defendant denies liability in this case and asserts that even if it were liable to the Plaintiff or the class she seeks to represent, the alleged violation at issue is so technical that only nominal statutory damages would be appropriate. A copy of the joint motion for certification of settlement class and preliminary approval of class action settlement agreement dated Jan. 6, 2020 is available from PacerMonitor.com at http://bit.ly/2LywH93at no extra charge.[CC] The Plaintiff is represented by: Yitzchak Zelman, Esq. Ari Marcus, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com The Defendant is represented by: Manuel H. Newburger, Esq. BARRON & NEWBURGER, P.C. 7320 N. MoPac Expy., Suite 400 Austin, TX 78731 Telephone: (512) 649-4022 Facsimile: (512) 279-0310 E-mail: mnewburger@bn-lawyers.com - and - Louis Jay Miller, Esq. MENDELSON LAW FIRM Post Office Box 17235 Memphis, TN 38187 Telephone: (901) 763-2500 Facsimile: (901) 763-2525 E-mail: jmiller@mendelsonfirm.com MINNESOTA: Tyler Seeks 8th Cir. Review in Rights Violation Suit --------------------------------------------------------------- Plaintiff Geraldine Tyler filed an appeal from a court ruling entered in the lawsuit entitled GERALDINE TYLER, on behalf of herself and all others similarly situated v. HENNEPIN COUNTY and MARK V. CHAPIN, Auditor‐Treasurer, in his official capacity, Case No. 0:20-cv-00889-PJS, in the U.S. District Court for the District of Minnesota. As previously reported in the Class Action Reporter, Plaintiff Geraldine Tyler owed $15,000 in unpaid state property taxes, penalties, costs, and interest. Acting pursuant to a Minnesota statute, Defendants Hennepin County and Hennepin County Auditor‐Treasurer Mark Chapin foreclosed on Tyler's property, sold it for $40,000, and kept all of the proceeds. Tyler filed this lawsuit alleging, among other things, that the County violated her constitutional rights by retaining the value of her property in excess of the $15,000 tax debt that Tyler owed. Ms. Tyler is now seeking an appeal to review the Court's Judgment dated Dec. 7, 2020, granting Defendants' motion to dismiss the case. The appellate case is captioned as Geraldine Tyler v. State of Minnesota, et al., Case No. 20-3730, in the United States Court of Appeals for the Eighth Circuit, Dec. 30, 2020. The briefing schedule in the Appellate Case states that: -- Transcript is due on or before February 8, 2021; -- Appendix is due on February 18, 2021; -- BRIEF APPELLANT, Geraldine Tyler is due on February 18, 2021; and -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant. [BN] Plaintiff-Appellant Geraldine Tyler, on behalf of herself and all others similarly situated, is represented by: Garrett D. Blanchfield, Jr., Esq. Roberta A. Yard, Esq. REINHARDT & WENDORF W1050 First National Bank Building 332 Minnesota Street Saint Paul, MN 55101-0000 Telephone: (651) 287-2100 E-mail: g.blanchfield@rwblawfirm.com r.yard@rwblawfirm.com - and - Daniel C. Hedlund, Esq. Daniel J. Nordin, Esq. GUSTAFSON & GLUEK 120 S. Sixth Street, Suite 2600 Minneapolis, MN 55402-0000 Telephone: (612) 333-8844 E-mail: dhedlund@gustafsongluek.com dnordin@gustafsongluek.com - and - Marisa Katz, Esq. Vildan Aksoz Teske, Esq. TESKE & KATZ 222 S. Ninth Street, Suite 1600 Minneapolis, MN 55402 Telephone: (612) 746-1558 E-mail: katz@teskekatz.com teske@teskekatz.com - and - Charles R. Watkins, Esq. SUSMAN & BUEHLER 600 Two First National Plaza Chicago, IL 60603-0000 Telephone: (312) 346-3466 Defendants-Appellees Hennepin County and Mark Vincent Chapin, Auditor-Treasurer, in his official capacity, are represented by: Rebecca L. Stark Holschuh, Esq. Kelly K. Pierce, Esq. Jeffrey M. Wojciechowski, Esq. HENNEPIN COUNTY ATTORNEY'S OFFICE Government Center 300 S. Sixth Street Minneapolis, MN 55487-0000 Telephone: (612) 348-5527 E-mail: rebecca.holschuh@hennepin.us kelly.pierce@hennepin.us jeffrey.wojciechowski@hennepin.us NEVADA: Judge Lifts Contempt Against State Unemployment Office -------------------------------------------------------------- Ken Ritter, writing for Associated Press, reports that a Nevada judge lifted a contempt finding against the state unemployment office, saying that it complied just before Christmas with his July court order to resume paying pandemic relief benefits to thousands of out-of-work gig and contract workers. The state Department of Training, Employment and Rehabilitation issued a statement following the Dec. 31 hearing saying 200 appeals have been heard under the Pandemic Unemployment Assistance program and another 320 hearings are scheduled in coming weeks. Attorney Mark Thierman, representing several independent contractors and self-employed workers in the lawsuit filed last May, said on Jan. 4 the question continues to affect "multiple thousands" of independent contractors and self-employed workers who should have received $600 weekly benefits that Congress allocated as pandemic relief. "The mandate is still in place," Thierman said. "A lot of people are still owed money. We're frustrated with the lack of compassion and responsiveness that DETR has shown." The case, which sought class-action status, still is pending before the Nevada Supreme Court. Washoe County District Court Judge Barry Breslow last month imposed a nominal $1,000 fine and held DETR in contempt for failing to comply with his July order to resume paying pandemic relief benefits to people who had payments start and then stop -- leaving them without the $600 a week Congress promised, plus state payments. State officials last month reported restarting payments on some 5,700 claims, in addition to about 3,000 that were already being paid, including through different programs. It said it identified about 1,100 claims as fraudulent. In its Dec. 31 statement, the state unemployment office noted it has asked the state high court to reverse Breslow's order. The agency argues Thierman's clients lacked standing to sue and the judge lacked jurisdiction to decide the case. The state's unemployment rate was at an all-time low of 3.6% in February, but became the worst in the nation after the pandemic started and casinos and other non-essential businesses closed in March. Many businesses reopened by June, but by then the state jobless rate set a record for any state, topping 30% in April. DETR reported Nevada's unemployment rate at 14.2% on Dec. 31. It said more than 807,000 initial claims were filed in 2020, including nearly 786,000 since mid-March. Unemployment Assistance program filings totaled more than 78,800 in late December, the department said, adding that "applications in the PUA program continue to be highly variable." [GN] NEW YORK: Bid for Preliminary Injunction in Nnebe v. TLC Denied --------------------------------------------------------------- In the lawsuits titled JONATHAN NNEBE, et al., Plaintiffs v. MATTHEW DAUS, et al., Defendants, and ANTHONY STALLWORTH, individually and on behalf of all others similarly situated, et al., Plaintiffs v. MEERA JOSHI et al., Defendants, Case Nos. 06-cv-4991 (RJS) and 17-cv-7119 (RJS) (S.D.N.Y.), the U.S. District Court for the Southern District of New York issued an Opinion & Order: -- denying the Plaintiffs' motion for a preliminary injunction; -- granting in part the Plaintiffs' motion for permanent injunction, such that the Defendants will modify the timeframe for rendering suspension decisions in accordance with this Opinion and Order, and denying as to the remainder of the Plaintiffs' requests; and -- directing the Clerk of Court to terminate the motion at Case No. 06-cv-4991, Doc. No. 452 and Case No. 17-cv-7119, Doc. No. 70. The Court's Opinion and Order marks the latest installment in a pair of long-running cases involving the New York City Taxi and Limousine Commission ("TLC") and licensed taxi drivers, who have been suspended after being charged with crimes. In the first case, Nnebe v. Daus, Case No. 06-cv-4991, Plaintiffs Nnebe, Eduardo Avenaut, and Khairul Amin, together with the New York Taxi Workers Alliance, brought a putative class action against Defendants Daus, Charles Fraser, Joseph Eckstein, Elizabeth Bonina, the TLC, and the City of New York, alleging that the TLC's policy of summarily suspending taxi drivers upon notification of their arrest violates the United States Constitution, New York state law, and New York City municipal law. In the second case, Stallworth v. Joshi, Case No. 17-cv-7119, Plaintiffs Stallworth, Parichay Barman, Noor Tani, and the New York City Taxi Workers Alliance commenced an action against Defendants Joshi, Chris Wilson, Stas Skarbo, and the City, similarly alleging that the TLC's policy of summarily suspending a taxi driver's license upon arrest for any felony charge or certain enumerated misdemeanor charges violates the United States Constitution and New York state law. The TLC has implemented its Section 19-512.1-summary-suspension powers through a summary-suspension rule, which has been amended and renumbered several times. The current version -- enacted in 2014 and effective through Jan. 8, 2021, when a new Rule is scheduled to go into effect -- states that the Chairperson can summarily suspend a License based upon an arrest or citation if the Chairperson believes that the charges, if true, would demonstrate that continued licensure would constitute a direct and substantial threat to public health or safety. The Rule lists all felonies and certain enumerated misdemeanors that will trigger a summary suspension, and provides that a hearing will determine whether the charges underlying the Licensee's arrest, if true, demonstrate that the continuation of the License while awaiting a decision on the criminal charges would pose a direct and substantial threat to public health or safety. In 2009, the Court granted the Nnebe Defendants' motion for summary judgment. On appeal, the Second Circuit affirmed the Court's finding that the Due Process Clause does not require a pre-suspension hearing. But because the City's representations at oral argument left the panel uncertain about what standard actually applied to suspension decisions, the Second Circuit vacated and remanded for the Court to conduct additional fact-finding to determine whether the post-suspension hearing the City affords does indeed provide an opportunity for a taxi driver to assert that, even if the criminal charges are true, continued licensure does not pose any safety concerns. The Court noted that the Rule was amended in 2006 to include the "nexus" standard, replacing an earlier version that provided for suspension as necessary to insure public health, safety or welfare. It found that the notices sent after the 2006 amendment were constitutionally adequate. As a result, the Court scheduled briefing on damages for the pre-2006 notice deprivations, but otherwise entered judgment in favor of the Nnebe Defendants. Because the Stallworth Plaintiffs' claims all post-dated the Rule's 2006 amendments, the Court granted the Stallworth Defendants' motion to dismiss the Stallworth action for failure to state a claim in light of the Court's ruling in Nnebe. Both the Nnebe Plaintiffs and the Stallworth Plaintiffs appealed, and the Second Circuit heard the cases in tandem. In 2019, the Circuit partially reversed the Court's rulings, concluding that both the Rule and the Code require a meaningful hearing that must give the driver an opportunity to show that his or her particular licensure does not cause a threat to public safety. After the Second Circuit's Nnebe decision, the parties engaged in extensive settlement negotiations. On Aug. 28, 2019, the Court referred the case to a magistrate judge for settlement purposes, as requested by the Plaintiffs. The parties then requested several extensions to continue the negotiations, but after six months, settlement talks proved unproductive. In the meantime, the Defendants began updating their suspension procedures in accordance with the Second Circuit's opinion. Now, when a driver is suspended, the TLC first sends a revised "Notice of License Suspension," which notes that hearing practices have changed because of the Second Circuit's 2019 decision. In addition to using new notices, the TLC recently amended the Rule, adopting several changes that will take effect on Jan. 8, 2021. For starters, the new Rule specifies that the TLC bears the burden of proof to establish that the driver's continued licensure poses a threat to public safety. The matter before the Court is the Plaintiffs' motion for (1) a preliminary injunction barring the Defendants from suspending drivers based on arrests during the COVID-19 pandemic or unless and until the Court has ordered a constitutionally adequate pre-hearing notice and directed the implementation of a rule that will ensure a fair hearing process, and (2) a permanent injunction mandating specific reforms to the TLC's post-suspension hearing process. The Plaintiffs seek a preliminary injunction enjoining the entire suspension-on-arrest program "at least through the Covid-19 crisis," as well as a permanent injunction consisting of an assortment of reforms aimed at improving the suspension process. In response, the Defendants argue that any injunctive relief would be moot, given the changes made since the Second Circuit's recent Nnebe decision, and that the Plaintiffs' proposed relief is unjustified and/or overbroad. The Court first addresses the Defendants' argument that an injunction would be moot, and then turns to the Plaintiffs' proposed requests for injunctive relief. Circuit Judge Richard J. Sullivan finds that the Plaintiffs' request for injunctive relief is moot in one respect. They asked the Court to order the Defendants to indicate clearly in the TLC rules that the agency must bear the burden of proof at the post-suspension hearing. Judge Sullivan holds that the updated TLC Rule explicitly places the burden of proof on the TLC to show that continued licensure poses a direct and substantial threat to the public. Having received the "precise relief" sought, the Plaintiffs' request for an order regarding the burden of proof is now moot. The Plaintiffs request a preliminary injunction ordering the TLC to cease its suspension-on-arrest program at least as to misdemeanor and non-violent felony arrests throughout the COVID-19 pandemic, or until the Court has entered, and the Defendants have implemented, a permanent injunction with various reforms. Such drastic relief is certainly not warranted, Judge Sullivan says. He notes that clearly, the cessation of suspensions altogether is not appropriate. To start, the relief fails to account for the government's significant interest in immediate suspension; that interest is not on a hiatus during the COVID-19 pandemic. Importantly, the Plaintiffs do not contest that the TLC has continued to hold suspension hearings within ten days of a driver's request -- even during the pandemic. Nor have they demonstrated that the pandemic has otherwise slowed the processing of suspension cases. The Plaintiffs have instead focused on delays COVID-19 has caused in New York state courts, but those delays contrast sharply with the TLC's undeterred processing of suspensions. Having offered no persuasive justification for such a cessation, the Plaintiffs have failed to demonstrate irreparable harm, a likelihood of success on the merits, or that the public interest would be served, Judge Sullivan opines. Accordingly, the Court has little difficulty in denying the Plaintiffs' motion for a preliminary injunction. As to a permanent injunction, the Plaintiffs seek a laundry list of long-term reforms, asking for an order that would, among other things, (1) modify the TLC's pre-hearing notices; (2) mandate that administrative law judges ("ALJs") and the TLC Chair consider ten non-exhaustive factors, along with a risk-assessment score, when deciding whether to lift a suspension; (3) eliminate or limit Chair review; (4) require automatic scheduling of post-suspension hearings; (5) command that suspension decisions omit a driver's name; (6) direct the TLC to collect and publish statistics about the number of hearings and suspensions; and (7) shorten the timeframe for the TLC's processing of a driver's suspension. Taking each request in turn, the Court finds that only the last one calls for a permanent injunction. The Plaintiffs ask the Court to impose a series of reforms to ensure that suspension cases will be adjudicated faster than the updated Rule requires. Specifically, they argue that ALJs should be encouraged to rule from the bench, that Chair review should be eliminated, and that each decision should be rendered within fewer days. The Court rejects the first two proposals, but agrees that the timeline for making decisions should be tightened and accelerated. Accordingly, the Plaintiffs' motion for a preliminary injunction is denied. The Plaintiffs' motion for permanent injunction is granted in part and denied in part. A full-text copy of the Court's Opinion & Order dated Dec. 31, 2020, is available at https://tinyurl.com/y2qd4hqc from Leagle.com. NORTH MIAMI, FL: Jockey Club Sues Over Unlawful Water Utility Bills ------------------------------------------------------------------- THE JOCKEY CLUB CONDOMINIUM APARTMENTS, INC., on behalf of itself and all others similarly situated v. THE CITY OF NORTH MIAMI, a municipal corporation, Case No. 118403591 (Fla. Cir., Miami-Dade Cty., Dec. 17, 2020) is a class action brought on behalf of the Plaintiff and all other similarly situated consumers of water and sewer services provided by the City of North Miami who have been billed for service in violation of City Ordinance Sec. 19-96(d)(3). The complaint alleges that each Plaintiff, as defined by City Ordinance 19-96(d)(3), received water utility bills from the City of North Miami that improperly calculated their water commodity consumption in violation of the ordinance. North Miami is a suburban city located in northeast Miami-Dade County, Florida.[BN] The Plaintiff is represented by: William J. Zornwell, Esq. David K. Friedman, Esq. Miranda Springfield, Esq. WEISS, HANDLER & CORNWELL, P.A. One Boca Place, Suite 205E 2255 Glades Road Boca Raton, FL 33431 Telephone: (561) 997-9995 Facsimile: (561) 997-5280 E-mail: wjc@whcfla.com dkf@whcfla.com mns@whcfla.com - and - David S. Hollander, Esq. LAW OFFICES OF DAVID S. HOLLANDER, P.A. 150 East Palmetto Park Road, Suite 800 Boca Raton, FL 33432 Telephone: (561) 571-3536 Facsimile: (561) 537-7203 E-mail: david@chargingtowardjustice.com NOVABAY PHARMACEUTICALS: Tatum-Rios Files ADA Suit in S.D.N.Y. -------------------------------------------------------------- A class action lawsuit has been filed against NovaBay Pharmaceuticals, Inc. The case is captioned as Lynnette Tatum-Rios, individually and on behalf of all other persons similarly situated v. NovaBay Pharmaceuticals, Inc., Case No. 1:20-cv-10655-JPO-SLC (S.D.N.Y., Dec. 17, 2020). The case is brought over alleged violation of the Americans with Disabilities Act and is assigned to Judge J. Paul Oetken. NovaBay Pharmaceuticals Inc. operates as a pharmaceutical company that is focused on commercialization and developing products that address the topical anti-infective markets. [BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com NPAS SOLUTIONS: Phelps Dunbar Attorneys Discuss Court Ruling ------------------------------------------------------------ Michael S. Hooker, Esq., and Guy P. McConnell, Esq., of Phelps Dunbar LLP, in an article for Lexology, report that are federal courts moving away from granting incentive payments to class representatives? A recent 11th Circuit ruling is making waves, but a new petition could limit its impact. We recently wrote about the 11th Circuit's decision last September that blocked an incentive payment for the face of a class-action lawsuit. In the Johnson case, the 11th Circuit held that two Supreme Court cases from the 1880s barred service or incentive awards to compensate class representatives for pursuing class actions. This ruling was somewhat surprising because federal courts have routinely approved these awards over the last century. Since our last writing, an en banc petition was filed in Johnson, asking that the full court reconsider its service award decision. Because the en banc petition has not yet been ruled on, the 11th Circuit might reverse its blanket prohibition on incentive payments or limit the scope of its previous ruling. It remains to be seen whether other circuits will follow the 11th Circuit's lead. Since Johnson, no other federal circuit court has opined on the propriety of service awards. Federal district courts have had mixed reactions to Johnson's ban on class action incentive payments. Most district courts in the 11th Circuit followed the Johnson ruling and denied incentive award requests outright: * One case from the Middle District of Florida decided in October, one decided in November, another from the Southern District of Florida and one from the Southern District of Alabama decided in December expressly rejected requests for incentive awards, citing Johnson. * Although they did not rule out the possibility of later incentive payments, two other Middle District of Florida cases denied requests for incentive payments. One denied the request "without prejudice." The other denied it "at this juncture" and referenced the pending en banc petition in Johnson. Yet another Middle District of Florida opinion deferred ruling on the service award request, but rejected an argument that Johnson's disallowance applied only to "common fund" cases in which the award is paid from funds otherwise payable to class members. Other district courts have distinguished or simply declined to adopt the Johnson ruling: * A magistrate judge in the Southern District of Florida concluded that the Johnson prohibition did not apply in diversity cases. The judge cited other circuit authority that the recovery of incentive awards in diversity cases turns on whether applicable state law authorizes such awards. * A New Jersey district court "respectfully declined" to follow Johnson. The court noted that substantial precedent exists in its circuit to support the approval of incentive payments. * A Pennsylvania district court refused to follow Johnson, citing the New Jersey decision above, and refused "to deviate from" existing circuit precedent permitting incentive awards. * Two California district court cases, one decided Dec. 10 and one Dec. 21, declined to follow Johnson because the courts concluded that Johnson was not binding in the 9th Circuit and 9th Circuit precedent permitted such awards. * A district court in New York acknowledged Johnson and the old Supreme Court cases on which it was based, but nevertheless granted an incentive payment where the award was paid directly by defendants and not out of a common fund. It's still unclear whether the 11th Circuit's Johnson decision will have a significant impact on future class action lawsuits. Although some lower courts have heeded the call to begin denying class action service awards, others appear to be taking a "wait and see" approach. And some courts outside the 11th Circuit have openly rejected the Johnson ruling. It will be interesting to see whether the 11th Circuit decides to revisit the incentive award issue en banc. A copy of the Complaint captioned Charles T. Johnson, et al. v. NPAS Solutions, LLC, is available at: https://media.ca11.uscourts.gov/opinions/pub/files/201812344.pdf [GN] NSBC GROUP: Faces Almonte Suit Over Failure to Pay Overtime ----------------------------------------------------------- BENJAMIN ALMONTE, and other similarly situated individuals, Plaintiff v. NSBC GROUP, LLC d/b/a SAKE THAI & SUSHI BAR, Defendant, Case No. 0:20-cv-62681-RS (S.D. Fla., December 20, 2020) brings this complaint as a collective action against the Defendant for its alleged unlawful payroll practices and procedures in violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant approximately from December 8, 2016 to March 16, 2020 as a non-exempted full-time, hourly, restaurant employee, whose duties include as a cook, prep cook, dishwasher, and cleaning person. The Plaintiff claims that although he always worked more than 40 hours in a week, the Defendant did not pay his lawfully earned overtime compensation at one and one-half times his regular rate of pay for all hours he worked over 40 in a workweek. The Plaintiff complained any times to the restaurant's owner and manager, but they willfully and intentionally refused to pay his requested unpaid overtime. When the restaurant re-opened after it was temporarily closed down due to the Coronavirus quarantine on or about March 16, 2020, the Plaintiff was never called back to work. The Plaintiff seeks to recover unpaid overtime compensation, liquidated damages, reasonable attorneys' fees and costs of suit, and other relief that the Court deems equitable and just. NSBC Group, LLC d/b/a Sake Thai & Sushi Bar operates a Thai and Japanese bar/restaurant located at 4401 Sheridan St., Hollywood, Florida 33021. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmagroup.com PENNSYLVANIA: Taggarts Ruling in Foreclosure Suit to 3rd Circuit ---------------------------------------------------------------- Plaintiff Kenneth J. Taggart filed an appeal from a court ruling issued in his lawsuit entitled Kenneth Taggart, on behalf of himself and all others similarly situated v. The Honorable Jeffrey Saltz, The Honorable Francesco Ott, The Honorable An Lazaras, Honorable Susan Pikes Gatman, in their personal capacity, WELLS FARGO BANK N.A., PHELAN HALLINAN & SCHMEIG LLP, REED SMITH LLP, Case No. 2-20-cv-01638, in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, the lawsuit is brought to against the Commonwealth of Pennsylvania for civil rights violations during the course of litigation involving a foreclosure action filed by Wells Fargo against the Plaintiff on April 1, 2010. The Court of Common Pleas of Montgomery County, Pennsylvania, entered a judgment in the foreclosure action in favor of Wells Fargo Bank N.A. against Kenneth Taggart on March 27, 2018. Undisputed facts in the case reveal that Wells Fargo Bank N.A. did not actually own the mortgage when it filed its foreclosure on April 1, 2010. The undisputed facts reveal that Wells Fargo did not own the note and mortgage until April 5, 2010; 4 days after the complaint was filed, depriving Wells Fargo "Standing", subject matter jurisdiction, personal jurisdiction, and in rem jurisdiction. After losing in state court, Taggart filed an appeal against Montgomery County Court of Common Pleas Judge Jeffrey Saltz, Pennsylvania Superior Court Judges Ann Lazarus, Paula Ott and Susan Peikes Gantman, Wells Fargo, Reed Smith LLP and Phelan Hallinan Diamond and Jones, LLP. Each Defendant moves to dismiss Taggart's Amended Complaint under various theories. The Court grants the Defendants' Motions and dismisses this case with prejudice. The appellate case is captioned as Kenneth Taggart v. Jeffrey Saltz, et al., Case No. 20-3574, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant KENNETH J. TAGGART, on behalf of himself and all other similarly situated, of Holland, Pennsylvania, appears pro se. Defendants-Appellees THE HONORABLE JEFFREY S. SALTZ, IN HIS PERSONAL CAPACITY; THE HONORABLE FRANCESCO OTT, IN HER PERSONAL CAPACITY; THE HONORABLE ANN LAZARUS, IN HER PERSONAL CAPACITY; HONORABLE SUSAN PIKES GANTMAN, IN HER PERSONAL CAPACITY; WELLS FARGO BANK NA; PHELAN HALLINAN & SCHMIEG LLP, AND ANY SUCCESSOR IN INTEREST; and REED SMITH LLP are represented by: Martha Gale, Esq. SUPREME COURT OF PENNSYLVANIA 1515 Market Street, Suite 1414 Philadelphia, PA 19102 Telephone: (215) 560-6300 E-mail: martha.gale@pacourts.us - and - Diane A. Bettino, Esq. REED SMITH 506 Carnegie Center, Suite 300 Princeton, NJ 08540 Telephone: (609) 520-6393 E-mail: dbettino@reedsmith.com - and - Kenneth S. Goodkind, Esq. FLASTER GREENBERG 1810 Chapel Avenue West Cherry Hill, NJ 08002 Telephone: (856) 661-2273 E-mail: ken.goodkind@flastergreenberg.com PEOPLECONNECT INC: Bonilla Sues Over Unlawful Business Practices ---------------------------------------------------------------- SERGIO BONILLA, individually and on behalf of all others similarly situated, Plaintiff v. PEOPLECONNECT, INC.; PEOPLECONNECT INC.; CLASSMATES MEDIA CORPORATION, Defendants, Case No. 1:21-cv-00051 (N.D. Ill., Jan. 5, 2021) is an action against the Defendants for knowingly misappropriating the photographs, likenesses, names, and identities of the Plaintiff and the class; knowingly using those photographs, likenesses, names, and identities for the commercial purpose of selling access to them in Classmates products and services; and knowingly using those photographs, likenesses, names, and identities to advertise, sell, and solicit purchases of Classmates services and products; without obtaining prior consent from Plaintiff and the class. Peopleconnect, Inc. provides online social network services. The Company offers basic people search, list management, criminal records, employee screening, human resources background checks, and identity theft protection services. Peopleconnect serves customers in the United States. [BN] The Plaintiff is represented by: Shannon M. McNulty, Esq. CLIFFORD LAW OFFICES, P.C. 120 N. LaSalle Street, 31 st Floor Chicago, IL 60602 Telephone: (312) 899-9090 Facsimile: (312) 251-1160 E-mail: SMM@cliffordlaw.com - and - Michael F. Ram, Esq. Marie N. Appel, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 358-6913 Facsimile: (415) 358-6923 E-mail: mram@forthepeople.com mappel@forthepeople.com - and - Benjamin R. Osborn, Esq. 102 Bergen St. Brooklyn, NY 11201 Telephone: (347) 645-0464 E-mail: ben@benosbornlaw.com PRIMAL FORCE: Hoffman Serves as Both Class Rep and Class Counsel ---------------------------------------------------------------- Charles Toutant, writing for Law.com, reports that serving as both class representative and class counsel in his latest suit over marketing of a male enhancement product, New Jersey lawyer Harold Hoffman has once again deployed a strategy that has made him notorious to some defense lawyers. In a complaint filed Dec. 8 in Bergen County Superior Court and removed to federal court in Newark on Dec. 30, Hoffman says the maker of a supplement called Primal Max Red falsely claims its product will treat erectile dysfunction. By making such claims, the manufacturer, Primal Force Inc. of Royal Palm Beach, Florida, violates the New Jersey Consumer Fraud Act and the U.S. Food, Drug and Cosmetic Act by selling an unapproved drug, the suit claims. Hoffman faces a risk by filing consumer class action suits where he acts simultaneously as class counsel and class representative, although he's done it dozens of times before. New Jersey courts are divided on whether Hoffman, as class representative, pleads an ascertainable loss where he paid to purchase the product but has not used it. [GN] QUANTUMSCAPE CORPORATION: Gowda Sues Over 41% Drop in Share Price ----------------------------------------------------------------- ASHA GOWDA, individually and on behalf of all others similarly situated, Plaintiff v. QUANTUMSCAPE CORPORATION; JAGDEEP SINGH; FRITZ PRINZ; TIMOTHY HOLME; KEVIN HETTRICH; and VOLKSWAGEN GROUP OF AMERICA INVESTMENTS, LLC, Defendants, Case No. 3:21-cv-00070 (N.D. Cal., Jan. 6, 2021) is a securities fraud class action on behalf of all purchasers of QuantumScape publicly traded securities between November 27, 2020 and December 31, 2020, inclusive, seeking remedies under the Securities Exchange Act of 1934. According to the complaint, throughout the Class Period, the Defendants made materially false and misleading statements about the strength of QuantumScape's business, operations and financial prospects. The Defendants concealed multiple known risks with QuantumScape's solid state battery development and design that rendered the batteries "completely unacceptable for real world field electric vehicle performance." Specifically, as would later be revealed, the power of QuantumScape batteries "will only last for 260 cycles or about 75,000 miles of aggressive driving" and, because solid state batteries are temperature sensitive, "power and cycle tests at 30 and 45 degrees above would have been significantly worse if run even a few degrees lower." Only by virtue of a stock research report published by Seeking Alpha on January 4, 2021 would the investment community learn the truth. The market prices of QuantumScape publicly traded securities have since fallen precipitously on those disclosures, with the price of QuantumScape's Class A common stock declining more than 62% from its Class Period high of more than $131 per share on December 22, 2020 to close down at $49.96 per share on January 4, 2020, including a precipitous one-day decline of more than $34 per share, or 41%, on January 4, 2020, on unusually high trading volume of more than 82 million shares traded, or four times the average daily volume over the already volatile preceding ten trading days, the suit says. QuantumScape Corporation manufactures automobile parts. The Company offers lithium-metal batteries and other related parts. [BN] The Plaintiff is represented by: Shawn A. Williams, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 288-4545 Facsimile: (415) 288-4534 E-mail: shawnw@rgrdlaw.com – and – Samuel H. Rudman, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com mblasy@rgrdlaw.com RIVER JETTY: Website Inaccessible to Blind Users, Desalvo Claims ---------------------------------------------------------------- BRETT DESALVO, individually and on behalf all others similarly situated v. RIVER JETTY RESTAURANT GROUP, LLC, a California limited liability company, d/b/a A RESTAURANT and DOES 1 to 10, inclusive, Case No. 8:20-cv-02374-JLS-JDE (C.D. Cal., Dec. 17, 2020) arises from the Defendants' failure to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people, in violation of the Americans with Disabilities Act and the California's Unruh Civil Rights Act. The Plaintiff alleges that the Defendants engaged in acts of intentional discrimination through the unlawful conduct and seeks a permanent injunction to cause a change in the Defendants' corporate policies, practices, and procedures so that their Website, https://www.arestaurantnb.com, will become and remain accessible to blind and visually impaired consumers. River Jetty Restaurant Group, LLC offers the Website to the public. The goods and services offered by the Defendant include but are not limited to the following: Defendant's dinner and wine to go menus, how to plan a private event in a suitable space in the restaurant, and how to make a reservation.[BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com SALAS CONCRETE: Cavazos Seeks Initial Approval of Class Settlement ------------------------------------------------------------------ In the class action lawsuit captioned as JOHN CAVAZOS, on behalf of himself, all others similarly situated, and the general public, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, v. SALAS CONCRETE, INC., a California corporation; and DOES 1 through 50, inclusive, Case No. 1:19-cv-00062-DAD-EPG (E.D. Cal), the Plaintiff asks the Court to enter an order: 1. granting class certification of the Class solely for settlement purposes pursuant to Federal Rules of Civil Procedure section 23, consisting of: "all current and former California hourly, non-exempt employees Defendant employed during the Class Period;" -- The Settlement defines "Class Members" or "Settlement Class Members" as "any person who is a member of the Settlement Class, or, if such person is incompetent or deceased, the person's legal guardian, executor, heir or successor-in-interest." -- The Settlement defines "Class Period" to mean the time period of January 14, 2015 through November 6, 2019. 2. preliminarily approving the First Amended Joint Stipulation of Class Action Settlement and Release; 3. appointing David Spivak, Esq. of The Spivak Law Firm and Walter Haines of United Employees Law Group as Class Counsel; 4. appointing himself as a Class Representative; 5. approving the use of the proposed notice procedures and related forms; 6. directing that notice be mailed to the proposed Class; and 7. scheduling a hearing date for motion for final approval of class action settlement and awards of attorneys' fees and costs. Since 1980, Salas Concrete Inc. has been a family-owned Licensed Concrete Contractor in Clovis, California. A copy of the Plaintiff's unopposed second motion for preliminary approval of class action settlement dated Jan. 6, 2020 is available from PacerMonitor.com at https://bit.ly/35jbB5C at no extra charge.[CC] The Plaintiff is represented by: David G. Spivak, Esq. Maralle Messrelian, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Suite 203 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 E-mail: david@spivaklaw.com maralle@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave, Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 E-mail: whaines@uelglaw.com SELECT MEDICAL: Arends Labor Suit Removed to N.D. California ------------------------------------------------------------ The case styled JILL ARENDS and ALEXANDRA ARMSTRONG, on behalf of themselves and all other similarly situated individuals v. SELECT MEDICAL CORPORATION, SELECT EMPLOYMENT SERVICES, INC., and Does 1 through 50, inclusive, Case No. RG19047456, was removed from the Superior Court of California for the County of Alameda to the U.S. District Court for the Northern District of California on December 16, 2020. The Clerk of Court for the Northern District of California assigned Case No. 2:20-cv-11381-DDP-AS to the proceeding. The lawsuit is brought over Defendants' unfair and unlawful labor practices in violations of the California Labor Code and the California Business and Professions Code. Select Medical Corporation provides healthcare services. The Company offers long term care for critically ill patients, as well as inpatient and outpatient, rehabilitation therapy, and recovery services to patients suffering from trauma and other serious conditions. [BN] The Defendants are represented by: Ndubisi A. Ezeolu, Esq. Juan Aragon, Esq. TUCKER ELLIS LLP 515 South Flower Street, 42nd Floor Los Angeles, CA 90071 Telephone: (213) 430-3400 Facsimile: (213) 430-3409 E-mail: ndubisi.ezeolu@tuckerellis.com juan.aragon@tuckerellis.com SNOW TEETH WHITENING: Kraus Says Teeth-whitening Light a Scam ------------------------------------------------------------- Burton Kraus, individually and on behalf of all others similarly situated, v. Snow Teeth Whitening LLC d/b/a Snow, Foresold LLC d/b/a Foresold, Joshua Elizetxe, Floyd Mayweather, and Robert James Gronkowski, Defendants, Case No. 20-cv-06085, (E.D. N.Y., December 14, 2020) seeks to recover money damages resulting from fraudulent, false, and misleading advertising and marketing of their at-home teeth whitening products, treble damages, reasonable attorneys' fees, punitive damages and such other further relief for breach of express and implied warranty and for violation of New York General Business Law. Defendants advertise and sell teeth whitening products "The Accelerating LED Mouthpiece" and the "At-Home Teeth Whitening All-in-One Kit," which are basically LED lights. Kraus claims that these lights are ineffective for whitening teeth and is a scam. [BN] Plaintiff is represented by: Steven G. Mintz, Esq. Steven W. Gold, Esq. MINTZ & GOLD LLP 600 Third Avenue, 25th Floor New York, NY 10016 Tel: (212) 696-4848 Fax: (212) 696-1231 Email: mintz@mintzandgold.com gold@mintzandgold.com SOLARWINDS CORP: Shareholder Files Securities Class Action ---------------------------------------------------------- Lucas Manfredi, writing for FOXBusiness, reports that a SolarWinds shareholder has filed a class action lawsuit in the U.S. District Court for the Western District of Texas on Jan. 4 against the company's president, Kevin Thompson, and chief financial officer, J. Barton Kalsu, claiming the executives violated federal securities laws under the Securities Exchange Act of 1934. The lawsuit alleges SolarWinds leadership "misrepresented and failed to disclose" information about the company's recent hack, causing a "precipitous decline in the market value of the Company's securities" which resulted in "significant losses and damages" to investors who purchased shares between between Feb. 24 and Dec. 15, 2020. The suit states that SolarWinds either misrepresented or failed to disclose to shareholders that the company's Orion monitoring products had a vulnerability since mid-2020 that allowed hackers to compromise the product's server and that SolarWinds' update server had an easily accessible password of 'solarwinds123' that would leave customers, including the federal government, Microsoft, Cisco, and Nvidia vulnerable to hacks. In addition, the misleading statements caused the company and its shareholders to suffer "significant reputational harm" and "artificially inflated" SolarWinds market price. Shareholders claim that executives had "actual knowledge of the material omissions and/or the falsity of the material statements" and intended to "deceive Plaintiff and the other members of the Class, or, in the alternative, acted with reckless disregard for the truth when they failed to ascertain and disclose the true facts in the statements made by them or other SolarWinds personnel to members of the investing public." "Had Plaintiff and the other members of the Class been aware that the market price of SolarWinds securities had been artificially and falsely inflated by Defendants' misleading statements and by the material adverse information which Defendants did not disclose, they would not have purchased SolarWinds securities at the artificially inflated prices that they did, or at all," the lawsuit adds. "As officers and/or directors of a publicly owned company, the Individual Defendants had a duty to disseminate accurate and truthful information with respect to SolarWinds's business practices, and to correct promptly any public statements issued by SolarWinds which had become materially false or misleading." The lawsuit is seeking unspecified damages for "reasonable costs and expenses incurred", including counsel and expert fees, as well as any additional relief the court deems appropriate. In addition to shareholders, at least 18,000 SolarWinds customers were affected by the hack, including many Fortune 500 companies and numerous government agencies. U.S. intelligence officials have blamed Russia, but the Kremlin has denied involvement. A SolarWinds spokesperson did not comment on the lawsuit directly, but told FOX Business it is "solely focused on helping the industry and our customers understand and mitigate this attack," noting that it quickly released updates to customers that it believes will "close the vulnerability." "We are collaborating closely with federal law enforcement and intelligence agencies to investigate the full scope of this unprecedented attack, including whether it was backed by the resources of a foreign government," the spokesperson added. "We are also working with industry-leading third-party cybersecurity experts to assist in investigating, mitigating and remediating this attack." In addition, the company said it has taken a number of steps to further secure its network and products, including through advanced endpoint detection and monitoring tools. The company's stock has dropped more than 34% since news of the attack broke. In addition, the likes of Truist Securities and Baird have both downgraded SolarWinds stock from a buy to hold with both also anticipating stock price targets dropping to around $15. The stock closed at $14.53 per share at the end of the Jan. 4 trading session. [GN] STANLEY BLACK: Montgomery Seeks Second Cir. Review in Fraud Suit ---------------------------------------------------------------- Plaintiffs William Montgomery, et al., filed an appeal from a court ruling entered in the lawsuit entitled WILLIAM MONTGOMERY, individually and on behalf of all others similarly situated, Plaintiff v. STANLEY BLACK & DECKER, INC., d/b/a CRAFTSMAN, Defendant, Case No. 19-cv-1182, in the U.S. District Court for the District of Connecticut (New Haven). As previously reported in the Class Action Reporter, this putative class action lawsuit is brought over Defendant's false and misleading labeling and packaging of Craftsman-brand wet/dry vacuums. The Defendant misleads consumers into believing that the vacuums can in fact generate the claimed horsepower, even though these claims are illusory and can never be obtained in actual use. The Plaintiffs are seeking an appeal to review the Court's Order dated November 30, 2020, granting Defendant's motion to dismiss, and Judgment dated December 1, 2020 entered in favor of the Defendant. The appellate case is captioned as Montgomery v. Stanley Black & Decker Inc., Case No. 20-4261, in the United States Court of Appeals for the Second Circuit, Dec. 29, 2020. [BN] Plaintiffs-Appellants William Montgomery and Donald Wood, Jr., individually and on behalf of all others similarly situated, are represented by: Frederick John Klorczyk, III, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard Walnut Creek, CA 94596 Telephone: (925) 300-4451 E-mail: fklorczyk@bursor.com Defendant-Appellee Stanley Black & Decker Inc, DBA Craftsman, is represented by: John W. Cerreta, Esq. Day Pitney LLP 242 Trumbull Street Hartford, CT 06103 Telephone: (860) 275-0665 E-mail: jcerreta@daypitney.com STARBUCKS CORP: N.D. California Refuses to Remand Anderson Suit --------------------------------------------------------------- The U.S. District Court for the Northern District of California denied the Plaintiffs' motion to remand to state court their lawsuit styled ELIZABETH ANDERSON, et al., individually and on behalf of all others similarly situated v. STARBUCKS CORPORATION, Case No. 3:20-cv-01178-JD (N.D. Cal.). Named Plaintiffs Anderson and several others have sued Starbucks Corporation on behalf of a putative class of store managers to recover cell phone costs and fees incurred on the job. The Plaintiffs filed the action under California state law in the Superior Court of the State of California for the County of Alameda. The putative class is defined as "all persons who are or have been employed at any time during the Class Period by Starbucks in California under the job title Store Manager." The Plaintiffs did not quantify in either complaint the damages or monetary losses they attribute to Starbucks' practices. Both complaints are silent on the dollar value of the claims. Starbucks removed the cased to federal court under the Class Action Fairness Act of 2005 ("CAFA"). It said that interrogatory answers by two of the Named Plaintiffs served on Feb. 5, 2020, revealed that they had paid $50 and $80 per month respectively during the class period for their cellular plans. It was when Starbucks "first ascertained" that the claims plausibly crossed the $5 million CAFA threshold. In the removal petition, Starbucks estimated that the amount in controversy "is at least $5,905,100." It suggested that an additional $1,476,275 in attorneys' fees and costs should be factored in toward the CAFA threshold based on California state cases with similar claims that awarded approximately 25% of the class's recovery to plaintiffs' counsel. In sum, Starbucks alleged that "at least $7,381,375" is in play in the lawsuit. The Plaintiffs contend that Starbucks has not plausibly established the $5 million amount in controversy required for CAFA jurisdiction, and that the case should be remanded. Their main argument for a remand is that Starbucks' estimates of the amount in controversy are irrationally generous. The Plaintiffs had an opportunity to present evidence for the Court to consider, but did not proffer anything with respect to the number of store managers or work months, the cost of the cell phone plans or devices, or other pertinent facts. They rely solely on criticisms of Starbucks' evidence, District Judge James Donato notes. When the amount in controversy estimated in the removal notice is challenged in a remand motion, the defendant's responsive burden depends on whether the plaintiff's attack is facial or factual, Judge Donato says, citing Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020). An attack is facial when the plaintiff accepts the defendant's allegations but says they are not enough to invoke federal jurisdiction. That is what the Plaintiffs have done. They make a factual attack on Starbucks' estimates of the amount in controversy by contesting its evidence and reasoning, and without introducing extrinsic evidence of their own. Judge Donato finds that Starbucks has demonstrated that removal was proper. For the main issue in dispute, there is no doubt that Starbucks has plausibly established that it is reasonably possible that the amount in controversy exceeds $5 million. Starbucks' statements about the number of prospective class members, and their collective work months, are grounded in its business records. The Plaintiffs' criticism that Starbucks assumed too full a measure of liability and recovery is also unavailing, according to Judge Donato. He also states that the Plaintiffs' objection to the inclusion of attorneys' fees is not well taken. Courts in the circuit have treated a potential 25% fee award as reasonable in similar cases. It is enough to establish the reasonableness of the attorneys' fees estimate Starbucks used. The Court concludes that Starbucks has plausibly established a possibility that the amount in controversy exceeds $5 million. Consequently, the case was properly removed and a remand is denied. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y6hw2362 from Leagle.com. SUFFOLK COUNTY, NY: Wins Bid to Junk Cella Suit Over Tax Map Fees ----------------------------------------------------------------- In the lawsuit titled ELIZABETH CELLA, WINIFRED ESOFF, JOHN McCARTHY, CAROL RODGERS, and NICHOLAS ACCARDI v. SUFFOLK COUNTY, Case No. 620580/2017 (N.Y. Sup.), Judge Sanford Neil Berland of the Supreme Court of New York, Suffolk County, issued an order: -- denying the Plaintiffs' motion for partial summary judgment in their favor; -- granting the Defendant's motion to dismiss the complaint pursuant to New York Civil Practice Law and Rules 3211[a] (seq. #3); and -- denying as moot the Plaintiffs' motion for provisional class certification pursuant to CPLR 901 and 902 (seq. #1), and dismissing the within action. The lawsuit is a proposed class action in which the Plaintiffs contest the validity of certain fees charged by Suffolk County and collected by the Suffolk County Clerk for tax map verifications that are required in connection with the filing or recording of mortgages and other real property title-related instruments ("tax map verification fees") and seek to represent a class of individuals who have, or may in the future, pay such fees. The Plaintiffs do not maintain that the County is without the authority to impose any fees for the filing and recording of such instruments by the Suffolk County Clerk. Rather, they contend that the fees charged are disproportionate to the costs incurred by the County in connection with filing and recording real property-title-related instruments and that the fees are, therefore, in effect a tax, which cannot be imposed absent State enabling legislation permitting their imposition. The fees that are challenged by the Plaintiffs are imposed pursuant to Suffolk County Administrative Code Section A18-3. According to the Plaintiffs, the costs of operating the Real Property Tax Service Agency and the County Clerk's office are far outstripped by the cumulative magnitude of the fee payments generated, which the Plaintiffs claim exceeds some $70 million annually. For its part, the County contends that the tax map verification process is an integral part of the County's larger property tax and land management system, which encompasses over 584,000 parcels and that the fees collected cover not only the related expenses of the Real Property Tax Service Agency and the County Clerk but also costs associated with the many other County departments and functions with which the Real Property Tax Service Agency "must coordinate," including Civil Service, Legislation, Law, Public Works and Information Technology. Currently before the Court are the Plaintiffs' motions for partial summary judgment, presumably pursuant to CPLR 3212[e], and provisional class certification, pursuant to CPLR 901 and 902, and the County's motion to dismiss the complaint pursuant to CPLR 3211[a][2] and [7]. Judge Berland states that the question of whether the tax map verification fees are just that or should instead be deemed to constitute a tax does not reduce to a mere arithmetic assessment of the costs properly associated with the operation of the Real Property Tax Service Agency, the County Clerk's office and the administration of the County property tax and land management system and such other departments and functions that contribute to the cost of tax map verifications, but also requires a calculation of the benefits payors receive in exchange for their fee payments. According to the Order, it is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering enough evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented. The movant has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Moreover, the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true. On that basis alone, the Plaintiffs' motion for summary judgment must be denied on the current record, Judge Berland holds. However, Judge Berland opines, even without regard to the factually complex question of whether the fees charged for tax map verifications are so disproportionate to the costs of providing them or to the benefits conferred upon those who obtain the verifications as to transform them into a tax, the Plaintiffs' motion for partial summary judgment must be denied and their claims for declaratory and injunctive relief dismissed as the alleged deficiency upon which their claims of invalidity are based -- the want of State legislative authorization for the county's imposition of the tax map verification fees -- was addressed, and to the extent rectification was required, rectified, by the State Legislature's enactment of Laws of 2019, Chapter 55, Part SS, Section 1, which became effective on April 12, 2019, amending CPLR Sections 8019 and 8021. Thus, however the tax map verification fees may be characterized, the State Legislature has validated the authority of the County to set and collect them, Judge Berland points out. The Plaintiffs' remaining claims, for the refund or repayment of such tax map verification fees as they may have paid, styled in the complaint as a claim for money had and received, must also be dismissed because there is no allegation that any of the Plaintiffs in fact paid such fees under an express protest or under the kind of duress that excuses formal protest, according to the Court. The bare conclusory assertion of "duress," without any allegation that the payment was in fact made "to avoid threatened interference with present liberty of person or immediate possession of property" is insufficient to excuse the failure to protest expressly at the time of payment, even if the failure to make the payment would result in adverse economic or transactional consequences for the payor, Judge Berland opines. Accordingly, the Plaintiffs' claims for refund or repayment of any tax map verification fees they may have paid are dismissed. In light of the dismissal of the Plaintiffs' claims for injunctive and declaratory relief and for the refund or repayment of any tax map verification fees they may have paid, their motion for provisional class certification is denied as moot, and the complaint is dismissed. The Court has considered the remaining contentions of the parties and finds that they do not require further discussion or alter its determinations. A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/y4hzjwrf from Leagle.com. GOVERNMENT JUSTICE CENTER, at 30 SOUTH PEARL STREET, SUITE 1210, in ALBANY, New York, Plaintiffs' Attorneys. STAGG WABNIK LAW GROUP LLP, at 401 FRANKLIN AVENUE, SUITE 300, in GARDEN CITY, New York, Defendant's Attorneys. THE TROXEL: Fails to Pay Proper Overtime, Jones Suit Claims ----------------------------------------------------------- MEKCO JONES, individually, and on behalf of himself and others similarly situated, Plaintiff v. THE TROXEL COMPANY, a Delaware Corporation, Defendant, Case No. 2:20-cv-02945-JTF-atc (W.D. Tenn., December 30, 2020) is a collective action complaint brought against the Defendant for its alleged unlawful policies and practices that violated the Fair Labor Standards Act. The Plaintiff, who worked for the Defendant as a non-exempt hourly-paid employee during the 3-year period immediately preceding the filing of this complaint, alleges that the Defendant employed an unlawful time keeping policy and practice of not paying "off the clock" duties performed by its employees, as well as "rounding off" and "editing-out/shaving" its employees' time they spent performing work for the Defendant. As a result, despite regularly working more than 40 hours per week, the Defendant failed to properly and accurately pay its employees' lawfully earned overtime compensation at the applicable overtime rates of pay in accordance with the law. Moreover, the Defendant failed to properly and accurately record all such compensable times of the Plaintiff and other similarly situated employees. The Troxel Company operates a manufacturing plant located in Moscow, Tennessee. [BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, Esq. Nathaniel A. Bishop, Esq. Robert E. Morelli, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Tel: (901) 754-8001 Fax: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com nbishop@jsyc.com rmorelli@jsyc.com TRADER JOE'S: Kong Appeals Ruling in ERISA Suit to Ninth Circuit ---------------------------------------------------------------- Plantiffs Richard A. Kong, et al., filed an appeal from a court ruling entered in the lawsuit entitled RICHARD A. KONG, ROBERT A. CRUZALEGUI, MATTHEW W. HEIDEN, and CASHAY L. CLAYBORN, individually and on behalf of all others similarly situated v. TRADER JOE'S COMPANY, THE BOARD OF DIRECTORS OF TRADER JOE'S COMPANY, THE INVESTMENT COMMITTEE, and JOHN DOES 1-30, Case No. 2:20-cv-05790-PA-JEM, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the class action is brought pursuant to Sections 409 and 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sections 1109 and 1132, against the Plan's fiduciaries, which include Trader Joe's Company, the Board of Directors of Trader Joe's Company and its members during the Class Period, and the Investment Committee and its members during the Class Period for breaches of their fiduciary duties. The Plaintiffs allege that during the putative Class Period (June 29, 2014 through the date of judgment) the Defendants, as "fiduciaries" of the Plan, as that term is defined under ERISA, breached the duties they owed to the Plan, to the Plaintiffs, and to the other participants of the Plan by, inter alia, (1) failing to objectively and adequately review the Plan's investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain funds in the Plan despite the availability of identical or similar investment options with lower costs and/or better performance histories. The Plaintiffs are seeking an appeal to review the Court's Order dated Dec. 2, 2020, granting Defendants' motion to dismiss the case. The appellate case is captioned as Richard Kong, et al. v. Trader Joe's Company, et al., Case No. 20-56415, in the United States Court of Appeals for the Ninth Circuit, Dec. 30, 2020. The briefing schedule in the Appellate Case states that: -- Appellants Cashay L. Clayborn, Robert A. Cruzalegui, Matthew W. Heiden and Richard A. Kong Mediation Questionnaire is due on January 6, 2021; -- Appellants Cashay L. Clayborn, Robert A. Cruzalegui, Matthew W. Heiden and Richard A. Kong opening brief is due on February 26, 2021; -- Appellees The Board of Directors of Trader Joe's Company, The Investment Committee and Trader Joe's Company answering brief is due on March 29, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants RICHARD A. KONG, ROBERT A. CRUZALEGUI, MATTHEW W. HEIDEN, and CASHAY L. CLAYBORN, individually and on behalf of all others similarly situated, are represented by: Daniel L. Germain, Esq. ROSMAN & GERMAIN LLP 16311 Ventura Blvd. Encino, CA 91436-2152 Telephone: (818) 788-0877 E-mail: germain@lalawyer.com Defendants-Appellees TRADER JOE'S COMPANY, THE BOARD OF DIRECTORS OF TRADER JOE'S COMPANY, and THE INVESTMENT COMMITTEE are represented by: Dawn Sestito, Esq. Catalina Joos Vergara, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6352 E-mail: dsestito@omm.com cvergara@omm.com TRINITY HEALTHSHARE: 8th Cir. Appeal Filed in Kelly Insurance Suit ------------------------------------------------------------------ Defendant Trinity Healthshare, Inc. filed an appeal from a court ruling entered in the lawsuit styled GEORGE T. KELLY, III, and THOMAS BOOGHER, individually and on behalf of all others similarly situated v. THE ALIERA COMPANIES, INC., et al., Case No. 3:20-cv-05038-MDH, in the U.S. District Court for the Western District of Missouri - Joplin. As previously reported in the Class Action Reporter, the Plaintiffs have filed their second amended class action complaint against Defendants Aliera and Trinity alleging Defendants sold unfair and deceptive health care plans to Missouri residents and failed to provide the coverage the purchasers believed they would receive. The Plaintiffs allege the plans sold by Defendants qualify as insurance under both federal and state law. The Defendants contend their plans are Health Care Sharing Ministries and therefore do not qualify as insurance. Trinity Healthshare is seeking an appeal to review the court's order dated November 23, 2020, denying its motion to dismiss case or alternatively, to compel arbitration. The appellate case is captioned as George Kelly, III, et al v. Trinity Healthshare, Inc., Case No. 20-3709, in the United States Court of Appeals for the Eighth Circuit, Dec. 29, 2020. The briefing schedule in the Appellate Case states that: -- Appendix is due on February 8, 2021; -- BRIEFS OF APPELLANT The Aliera Companies, Inc. and Trinity Healthshare, Inc. are due on February 8, 2021; and -- Appellees brief is due 30 days from the date the court issues the Notice of Docket Activity filing the briefs of appellants.[BN] Plaintiffs-Appellees George T. Kelly, III and Thomas Boogher, individually and on behalf of all others similarly situated, are represented by: Jay Angoff, Esq. Chaim E. Bronstein, Esq. Cyrus Mehri, Esq. MEHRI & SKALET 1250 Connecticut Avenue N.W., Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 - and - Eleanor Hamburger, Esq. Ann E. Merryfield, Esq. Richard E. Spoonemore, Esq. SIRIANNI & YOUTZ 3101 Western Avenue, Suite 350 Seattle, WA 98121 Telephone: (202) 223-0303 E-mail: ehamburger@sylaw.com ann@sylaw.com rspoonemore@sylaw.com - and - Michael D. Myers, Esq. MYERS & COMPANY 1530 Eastlake Avenue East Seattle, WA 98102 Telephone: (206) 398-1188 E-mail: mmyers@myers-company.com Defendant-Appellant Trinity Healthshare, Inc., a Delaware corporation, is represented by: Ginger K. Gooch, Esq. HUSCH & BLACKWELL The Hammons Tower, Suite 1800 901 St. Louis Street Springfield, MO 65806 Telephone: (417) 268-4000 E-mail: ginger.gooch@huschblackwell.com UNITED STATES: Missouri River Landowners File 5th Amendment Lawsuit ------------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that on Dec. 14, Judge Nancy Firestone of the U.S. Court of Federal Claims ruled decisively that the U.S. government violated the Fifth Amendment rights of three landowners whose properties in the Missouri River basin became vulnerable to floods after the U.S. Army Corps of Engineers revised its management of the river to comply with environmental laws. The ruling by Judge Firestone, who has been overseeing takings claims by about 400 property owners along the river since 2014, will total more than $10 million for the three bellwether plaintiffs. But for the lawyers representing the Missouri River plaintiffs -- Dan Boulware of Polsinelli and Benjamin Brown of Cohen Milstein Sellers & Toll -- Judge Firestone's decision was a challenge as well as a win. The plaintiffs' lawyers told me on Jan. 4 that they had heard from dozens of additional landowners after launching the Fifth Amendment mass action with about 400 plaintiffs in 2014, but had held off on filing new claims until Judge Firestone clarified the scope of the case. The judge's Dec. 14 ruling effectively set a claims deadline of Dec. 31. So Boulware and Brown had to figure out how to protect the interests of other Missouri River property owners -- not just the dozens who had already contacted them but hundreds of others who might have valuable claims based on Judge Firestone's decision. Their solution? An unusual -- but not unprecedented -- Fifth Amendment class action in the Court of Federal Claims. The Dec. 30 complaint lists more than 60 named plaintiffs who own allegedly flood-prone land along the river in Kansas, Nebraska, Iowa and Missouri. If the class is certified, Boulware said, hundreds of other class members will also have an opportunity to assert claims. (Property owners who have already brought individual suits in the mass action, known as the Ideker case, are excluded from the class.) Boulware said Judge Firestone's decisions in the Ideker case should have collateral estoppel effect in the class action -- which means that class members who can show their land was flooded in years the judge has already determined to have been affected by the Army's revised river management policy will not have to prove causation. Those claims, according to Boulware, should be worth at least $2,000 per acre, based on the judge's assessment of reports from plaintiffs' experts in the mass action. Boulware declined to estimate the government's potential exposure in the class action, which will depend on whether the class is certified and how many property owners end up filing claims. But the entire Missouri River basin (which includes 10 states, not just the four states specified in the new class action) includes hundreds of millions of acres. The Justice Department, which represents the U.S. government in takings cases, did not respond to a request for comment. Class members must affirmatively opt in to class actions brought in the Court of Federal Claims, said plaintiffs' lawyer Brown. That's in contrast to most class actions in federal court, in which class members are part of the case unless they specifically opt out. There have been a few other Fifth Amendment takings class actions by property owners suing in the Court of Federal Claims. In 2014's Haggart v. United States, for instance, Judge Charles Lettow approved (116 Fed.Cl. 131) a $140.5 million class action settlement between the U.S. government and property owners whose land was converted into a recreational trail in a Rails to Trails program. (Other Rails to Trails landowners also reached class action settlements in federal claims court.) The Haggart case, interestingly, explained that under the claims court's rules for class actions, plaintiffs need only "share common questions of law or fact" to be certified as a class. Boulware said DOJ has relentlessly defended the mass action so he expects nothing less in the class action, even with the change in presidential administrations. [GN] UNITED STATES: Prelim. Injunction Denial in Hall v. USDA Affirmed ----------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit affirms the denial of a preliminary injunction in the lawsuit styled ROBIN HALL; STEVEN SUMMERS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE; GEORGE PERDUE, In his official capacity as United States Secretary of Agriculture, Defendants-Appellees, Case No. 20-16232 (9th Cir.). As part of its response to the COVID-19 pandemic, Congress enacted the Families First Coronavirus Response Act, which provides for emergency assistance to households participating in the Supplemental Nutrition Assistance Program ("SNAP"). The United States Department of Agriculture ("USDA"), which administers SNAP, concluded that the statute allows households receiving less than the maximum monthly allotment of SNAP benefits to be brought up to the maximum but does not permit those already receiving the maximum to be given any additional benefits. The Appellate Court is asked to decide whether USDA has correctly interpreted the statute. The Appellate Court concludes that it has. The Plaintiffs in the case, RHall and Summers, are Californians, who normally receive the maximum monthly allotment of SNAP benefits and, therefore, are not eligible for emergency allotments under USDA's interpretation of the Families First Act. Hall brought the putative class action against USDA and the Secretary of Agriculture challenging the agency's interpretation of Section 2302(a)(1) as arbitrary and capricious and in excess of statutory authority. Hall also sought a preliminarily injunction barring USDA from denying any otherwise appropriate request from California under section 2302(a)(1) because it provides emergency [SNAP] allotments to households receiving the maximum monthly benefit amount. The district court denied a preliminary injunction, concluding that because section 2302(a)(1) is ambiguous, and USDA's interpretation is reasonable, Hall did not show a clear likelihood of success on the merits, as a plaintiff must to obtain a mandatory injunction. Although the district court declined to reach the remaining preliminary-injunction factors, it noted considerable reservations about Hall's ability to establish redressability because even after a favorable ruling, California, an independent sovereign, must renew its request for emergency allotments before applicants can receive them. After the district court denied a preliminary injunction, Hall asked the Appellate Court for an emergency injunction pending appeal. A motions panel denied an injunction but ordered that the appeal be expedited. In the case, Hall's injury comes from not receiving emergency allotments, but Hall cannot receive allotments unless the State of California, which is not a party to this litigation, first requests them. And because the statute gives States discretion in framing their requests, any future request from California would not necessarily cover Hall. Indeed, although California initially proposed that emergency allotments be distributed to all SNAP households, including those already receiving the maximum monthly allotment, it then revised its request to comport with USDA's guidance. So even if Hall secured a ruling that she is eligible to receive emergency allotments under section 2302(a)(1), California would have to submit a new request along the lines of its initial request before Hall could obtain any concrete relief. Although the government raises the issue, it does not expressly argue that Hall lacks standing. The Appellate Court notes that the requirement of standing means that a federal court may act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court, citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). The Appellate Court concludes that Hall has satisfied that requirement. To address the redressability concerns identified by the district court, Hall attached to her motion for an injunction pending appeal a declaration from Alexis Carmen Fernandez, Chief of the CalFresh and Nutrition Services Branch of the California Department of Social Services. The declaration states that if the court were to enter an injunction requiring USDA to authorize emergency allotments for SNAP households receiving the maximum monthly allotment, California "would promptly revise and renew its request for emergency allotments for future benefit months," and its new request "would include emergency benefits for households receiving the maximum regular monthly benefit amount." The declaration does not establish exactly what kind of request the State would submit in response to a favorable decision. In particular, it does not say that California would submit a request identical to the State's initial request, nor does it say that whatever request it did submit would necessarily cover Hall. Even though Hall has established a "significant increase in the likelihood" of relief sufficient to establish standing, the Appellate Court notes that uncertainty about what the State will do remains relevant to the question of irreparable harm in the preliminary-injunction analysis. The Appellate Court holds that it need not explore that issue further, however, because it concludes that Hall has not shown a likelihood of success on the merits. Hall contends that she is likely to succeed on the merits because the plain language of section 2302(a)(1) forecloses USDA's position that SNAP households that already receive the maximum monthly allotment are not eligible for emergency allotments. The Appellate Court disagrees. Circuit Judge Eric David Miller, writing for the Panel, states that often, when construing a statute that is administered by a federal agency, the Appellate Court reviews the agency's interpretation under the framework prescribed in Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984). In the instant case, the parties dispute whether USDA's interpretation is subject to review under Chevron. The Appellate Court concludes that it is not. Although the court in Chevron described a mode of analysis to be applied when a court reviews an agency's construction of the statute which it administers, later Supreme Court decisions have clarified that the Chevron analysis does not apply to all agency interpretations, see, e.g., United States v. Mead Corp., 533 U.S. 218, 231-34 (2001). Instead, administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Judge Miller opines that factors do not support applying Chevron in the matter. USDA's interpretation involves a significant legal question, not an interstitial one, and there is no indication that USDA gave careful consideration to the question over a long period of time, citing Barnhart v. Walton, 535 U.S. 212 (2002). Judge Miller finds that USDA's guidance does not satisfy the Barnhart factors, and he concludes that it is not subject to deferential review under Chevron. Hall also urges the Appellate Court to reject USDA's interpretation of the statute because it would result in the denial of emergency allotments to some of the neediest households -- namely, those who already receive the maximum regular monthly SNAP allotment because they have no income available to dedicate to purchasing food. Judge Miller says that is a serious concern, but it does not give the Panel permission to depart from what it has determined to be the best reading of the statutory text. Instead, Judge Miller writes, as the district court explained, the case does not call on them to decide what would be the fairest or most effective way to assist SNAP recipients in this era of COVID-19, because that judgment is committed to the political branches. Judge Miller adds that it appears more likely that Congress had a different policy objective in mind, consistent with USDA's responses to previous crises: to quickly top-off household benefits at the maximum monthly allotment in light of difficult-to-document disruptions in income. Because Hall is unlikely to succeed on the merits of her claims, the district court did not abuse its discretion in denying a preliminary injunction, the Appellate Court concludes. Chief Judge Sidney Runyan Thomas dissents. He avers that the USDA's interpretation of Section 2302(a)(1) cannot be squared with the text of that provision or the structure of the statute. Accordingly, the Plaintiffs have established a clear likelihood of success on their claim that the agency's interpretation cannot stand under 5 U.S.C. Section 706(2), citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Judge Thomas writes that because she dissents, she would reverse the denial of the preliminary injunction and remand to the district court for consideration of the remaining factors under Winter. A full-text copy of the Court's Opinion dated Dec. 31, 2020, is available at https://tinyurl.com/yxt8drrs from Leagle.com. Alexander Prieto (argued), Richard Rothschild -- Rrothschild@wclp.org -- and Antionette D. Dozier -- adozier@wclp.org -- Western Center on Law & Poverty, in Los Angeles, California; Lindsay Nako -- lnako@impactfund.org -- Jocelyn D. Larkin -- jlarkin@impactfund.org -- and David S. Nahmias -- dnahmias@impactfund.org -- Impact Fund, in Berkeley, California; for Plaintiffs-Appellants. Joshua K. Handell (argued) and Michael S. Raab, Appellate Staff; Ethan P. Davis, Acting Assistant Attorney General; Civil Division, United States Department of Justice, in Washington, D.C.; Ryan M. Majerus, Senior Counsel; Stephen A. Vaden, General Counsel; Office of the General Counsel, United States Department of Agriculture, in Washington, D.C.; for Defendants-Appellees. UNIVERSITY OF PITTSBURGH: Breach of Duty Claims in Riskin Tossed ---------------------------------------------------------------- The Honorable Kathaleen St. Jude McCormick, Vice Chancellor of the Court of Chancery of Delaware, grants the Defendants' motions to dismiss as to Count I and parts of Count II of the complaint in the lawsuit entitled DANIEL J. RISKIN, M.D. v. BRENTON BURNS; MARY BETH JENKINS; RAYMOND SCOTT; JOHN STEPHEN WHITEHURST; SCOTT HUEBNER; JOHN KUZMISHIN; FRED SCHWARZER; CRAIG GOMULKA; CHARLES TALBOT HEPPENSTALL, JR.; UNIVERSITY OF PITTSBURGH MEDICAL CENTER, a Pennsylvania corporation; UPMC PRESBYTERIAN SHADYSIDE, a Pennsylvania corporation; UPMC HEALTH PLAN, INC., a Pennsylvania corporation; CHARTER LIFE SCIENCES (OHIO) II, L.P., a Delaware limited partnership; CHARTER LIFE SCIENCES II, L.P., a Delaware limited partnership; CLS PARTNERS II (OHIO), LLC, a Delaware limited liability company; CLS PARTNERS II, L.P., a Delaware limited partnership; CLS MANAGEMENT II, LLC, a Delaware limited liability company, and HEALTH FIDELITY, INC., a Delaware corporation, Case No. 2019-0570-KSJM (Del. Ch.). The Plaintiff founded a healthcare technology company called Health Fidelity, a Delaware corporation based in California, in 2011 and served as the chief executive officer and a director until he was removed from both positions in mid-2014. The Plaintiff alleges that certain Defendants engaged in a creeping control scheme dating back to 2011. Once those Defendants obtained voting control over the Company, they used their influence to force the Company to enter into self-dealing transactions with the Defendants' affiliates and increased their equity stakes by causing the Company to engage in undervalued financing rounds with them. The Verified Amended Class Action and Derivative Complaint asserts seven claims against 18 Defendants for breach of fiduciary duty, aiding and abetting, unjust enrichment, and violations of various provisions of the Delaware General Corporation Law ("DGCL"). The Defendants have grouped themselves into three categories: the "Charter Defendants," the "UPMC Defendants," and the "Health Fidelity Defendants." In 2018, Riskin served five demands to inspect Health Fidelity's books and records pursuant to Section 220 of the DGCL. In response, the Company produced documents, including its incorporation documents, Board minutes and materials, director and stockholder written consents, and certain Company financial and investment information. On June 14, 2019, the Plaintiff, Health Fidelity, UPMC, UPMC Presbyterian, and UPMC Health Plan entered into an agreement that tolled the statute of limitations for the Plaintiff's claims as of June 14, 2019. The Plaintiff filed the lawsuit on July 24, 2019. The Amended Complaint contains seven counts. In Count I, the Plaintiff asserts direct claims for breach of fiduciary duty against the UPMC Defendants, the Charter Defendants, Whitehurst, Huebner, and Gomulka, in connection with the transactions that the Plaintiff vaguely refers to as the "Challenged Transactions." The Challenged Transactions potentially include following transactions discussed in the Amended Complaint: the 2014 and 2015 UPMC Agreements, the June 2015 Equity Plan Amendment, the 2015 Option Grants, among other transactions. In Count II, in the alternative to the direct claims asserted in Count I, the Plaintiff asserts derivative claims for breach of fiduciary duty against all Defendants except Health Fidelity with respect to the Challenged Transactions. Each of the three groups of Defendants filed motions to dismiss the complaint on Oct. 9, 2019. The Plaintiff amended his complaint in response, and the Defendants renewed their motions to dismiss on Feb. 7, 2020. The parties completed briefing on May 22, 2020, and the Court held oral argument on Sept. 14, 2020. Judge McCormick notes that the Plaintiff's expansive claims inspired dismissal arguments equally punishing in scope. The decision addresses the dismissal arguments with respect to Count I and portions of Count II only. All the Defendants have moved to dismiss Count I under Court of Chancery Rule 12(b)(6). They have all moved to dismiss portions of Count II on the basis of laches. All of them except for UPMC and its director designees -- Burns, Jenkins, and Kuzmishin -- have moved to dismiss the remainder of Count II. As to Count II, the decision addresses the laches argument and Charter's motion to dismiss only. In Count I, the Plaintiff asserts a direct claim for breach of fiduciary duty under the "dual claim" theory of Gentile v. Rossette, 906 A.2d 91 (Del. 2006). The Amended Complaint asserts Count I as to a vague group of "Challenged Transactions," but in briefing the Plaintiff only makes substantive arguments as to the 2017 Series B Financing. The Amended Complaint asserts Count I as to all Defendants, but in briefing the Plaintiff abandoned Count I as to Heppenstall, UPMC Presbyterian, and UPMC Health Plan. In essence, the Plaintiff claims that the participants in the 2017 Series B Financing received stock at an unfair price. Judge McCormick says that corporate overpayment claims of this nature are quintessentially derivative. In Gentile, however, the Delaware Supreme Court recognized "a species of corporate overpayment claim" that a stockholder can assert both derivatively and directly. Judge McCormick states that the decision declines to buck the trend. In the case, the 2017 Series B Financing involves the issuance of preferred stock, which has not been converted. Because the 2017 Series B Financing does not fit the transactional paradigm of Gentile, the Plaintiff's fiduciary duty claim is derivative in nature, Judge McCormick holds. Count I is, therefore, dismissed. In Count II, the Plaintiff asserts derivative claims as to various transactions spanning over five years. The Defendants have moved to dismiss Count II as to certain transactions that occurred on or before June 2016 under the doctrine of laches, and the decision grants that motion in part. Charter has moved to dismiss Count II on the grounds it did not owe fiduciary duties, and the decision grants that motion as well. According to Judge McCormick, when allegations reach back in time as far as those contained in the Amended Complaint, it is logical to first inquire as to whether aspects of the claims are time-barred. Under the doctrine of laches, a claim that would be barred by the applicable statute of limitations if pursued at law will be barred in equity absent tolling or extraordinary circumstances. The Plaintiff's claim for breach of fiduciary duty is subject to a three-year statute of limitations period that begins to run absent tolling when the alleged wrongful act is committed. The Plaintiff argues that challenges to certain transactions that occurred before July 24, 2016 (lawsuit's filing date) are not time-barred for two reasons. First, he entered into the Tolling Agreement. Second, the delay in sending notices or disclosing information equitably tolled any analogous statute of limitations. Generally, whether equitable tolling applies raises a fact-intensive inquiry that is not amenable to a motion to dismiss. Thus, although it is slim reed, the Plaintiff has pled facts giving rise to a reasonable inference that equitable tolling may apply to these transactions, Judge McCormick holds. As the basis for Count II against Charter, the Plaintiff alleges that Charter was a controlling stockholder with concomitant fiduciary duties. Charter held a minority stake in Health Fidelity, and a minority stockholder can be found to be a controller under Delaware law only where the stockholder "exercises control over the business affairs of the corporation" or has formed a "control group" with another stockholder. In the case, the Plaintiff does not allege that Charter, standing alone, exercised control over the business affairs of the corporation. Instead, he argues that Charter formed a control group with Health Fidelity's majority stockholder, UPMC. The Plaintiff's allegations concerning the 2014 Series A Financing show that Charter and UPMC agreed to work together to consummate that transaction. Not long after the 2014 Series A Financing, UPMC obtained a majority voting interest in Health Fidelity. Judge McCormick opines that the Plaintiff gives no persuasive reason why UPMC would have needed Charter's agreement to consummate any transaction from that point forward. Accordingly, the Plaintiff has not alleged facts sufficient to support his control-group theory, and Count II is dismissed as to the time-barred claims and Charter, Judge McCormick rules. The parties will have to stay tuned for the court's decision as to Count II concerning the remaining claims against the individual Defendants and as to Counts III through VII. A full-text copy of the Court's Memorandum Opinion dated Dec. 31, 2020, is available at https://tinyurl.com/y432xos7 from Leagle.com. Richard P. Rollo -- rollo@rlf.com -- Travis S. Hunter -- hunter@rlf.com -- Sarah A. Clark -- sclark@rlf.com -- Robert B. Greco -- greco@rlf.com -- Angela Lam -- lam@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., in Wilmington, Delaware; Counsel for Plaintiff. Brad D. Sorrels -- bsorrels@wsgr.com -- Andrew D. Cordo -- acordo@wsgr.com -- Daniyal M. Iqbal -- diqbal@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, P.C., in Wilmington, Delaware; Counsel for Defendants Brenton Burns, Mary Beth Jenkins, John Kuzmishin, Charles Talbot Heppenstall, Jr., University of Pittsburgh Medical Center, UPMC Presbyterian Shadyside, and UPMC Health Plan, Inc. A. Thompson Bayliss -- Bayliss@AbramsBayliss.com -- Adam K. Schulman -- Schulman@AbramsBayliss.com -- ABRAMS & BAYLISS LLP, in Wilmington, Delaware; Bruce A. Ericson -- bruce.ericson@pillsburylaw.com -- Stacie O. Kinser -- stacie.kinser@pillsburylaw.com -- PILLSBURY WINTHROP SHAW PITTMAN LLP, in San Francisco, California; Co-Counsel for Defendants Raymond Scott, Fred Schwarzer, Charter Life Sciences (Ohio) II, L.P., Charter Life Sciences II, L.P., CLS Partners II (Ohio), LLC, CLS Partners II, L.P., and CLS Management II, LLC. David J. Teklits -- dteklits@mnat.com -- Alexandra M. Cumings -- acumings@mnat.com -- MORRIS, NICHOLS, ARSHT & TUNNELL LLP, in Wilmington, Delaware; Counsel for Defendants John Stephen Whitehurst, Scott Huebner, Craig Gomulka, and Health Fidelity, Inc. UNIVERSITY OF PITTSBURGH: Riskin Claims v. Heppenstall, UPMC Nixed ------------------------------------------------------------------ In the lawsuit captioned as DANIEL J. RISKIN, M.D. v. BRENTON BURNS; MARY BETH JENKINS; RAYMOND SCOTT; JOHN STEPHEN WHITEHURST; SCOTT HUEBNER; JOHN KUZMISHIN; FRED SCHWARZER; CRAIG GOMULKA; CHARLES TALBOT HEPPENSTALL, JR.; UNIVERSITY OF PITTSBURGH MEDICAL CENTER, a Pennsylvania corporation; UPMC PRESBYTERIAN SHADYSIDE, a Pennsylvania corporation; UPMC HEALTH PLAN, INC., a Pennsylvania corporation; CHARTER LIFE SCIENCES (OHIO) II, L.P., a Delaware limited partnership; CHARTER LIFE SCIENCES II, L.P., a Delaware limited partnership; CLS PARTNERS II (OHIO), LLC, a Delaware limited liability company; CLS PARTNERS II, L.P., a Delaware limited partnership; CLS MANAGEMENT II, LLC, a Delaware limited liability company, and HEALTH FIDELITY, INC., a Delaware corporation, Case No. 2019-0570-KSJM (Del. Ch.), the Honorable Kathaleen St. Jude McCormick, Vice Chancellor of the Court of Chancery of Delaware, grants the motions to dismiss for lack of personal jurisdiction filed by Charles Talbot Heppenstall, Jr., and the UPMC Affiliates. The Order resolves the motions to dismiss the Verified Amended Class Action and Derivative Complaint for lack of personal jurisdiction under Court of Chancery Rule 12(b)(2) filed by Defendants Charles Talbot Heppenstall, Jr., UPMC Presbyterian Shadyside, and UPMC Health Plan, Inc. ("UPMC Affiliates"). When a defendant moves to dismiss a complaint pursuant to Court of Chancery Rule 12(b)(2), the plaintiff bears the burden of showing a basis for the court's exercise of jurisdiction over the defendant. Delaware courts resolve questions of jurisdiction using a two-step analysis. First, the court must "determine that service of process is authorized by statute." Second, the defendant must have certain minimum contacts with Delaware such that the exercise of personal jurisdiction "does not offend traditional notions of fair play and substantial justice." To satisfy these tests as to Heppenstall and the UPMC Affiliates, the Plaintiff relies on Delaware's long-arm statute, codified at 10 Del. C. Section 3404, and the conspiracy theory of jurisdiction. Judge McCormick finds that the Plaintiff's arguments as to Heppenstall are slim. The Plaintiff claims that Heppenstall aided and abetted in breaches of fiduciary duties, and this forms the basis of the alleged conspiracy supporting the Plaintiff's jurisdictional arguments. The Plaintiff alleges that Heppenstall was UPMC's President and the "ultimate decision-maker over UPMC's investment in Health Fidelity." He executed, on behalf of UPMC, stockholder consents purporting to authorize: the June 2016 Bridge Financing; the December 2016 Equity Plan Amendment; and the 2017 Series B Financing. He also executed the Note and Warrant Purchase Agreement on behalf of UPMC and attended various Health Fidelity Board meetings. Judge McCormick opines that Heppenstall, however, was not giving his own consent or binding himself in any way in connection with these actions, and the Plaintiff supplies no authority for the proposition that the court may attribute those actions to Heppenstall personally so as to establish jurisdiction. Generally, a corporation cannot be deemed to have conspired with its officers and agents for purposes of establishing jurisdiction under the conspiracy theory unless the agent "steps out of her role as an officer or agent and acts pursuant to personal motives." The Plaintiff does not argue that Heppenstall acted pursuant to personal motives, so Heppenstall cannot be deemed to have conspired with UPMC for the purpose of establishing jurisdiction. The Plaintiff's arguments as to the UPMC Affiliates are even weaker, Judge McCormick notes. The Plaintiff claims that the UPMC Affiliates aided and abetted the Defendants' breaches of fiduciary duties, and this forms the basis of the Plaintiff's personal jurisdiction arguments as to the UPMC Affiliates. The Amended Complaint is somewhat vague as to the predicate breach for the aiding and abetting claim. In briefing, the Plaintiff hones in on the 2014 and 2015 UPMC Agreements, which allegedly allowed the UPMC Affiliates to "extract thousands and millions of dollars from Health Fidelity." Judge McCormick states that claims challenging those transactions pre-dating June 2016 are barred by the doctrine of laches, and thus they cannot supply the predicate conspiracy for jurisdictional purposes. The Amended Complaint contains a few other facts specific to the UPMC Affiliates, none of which support the Court's exercise of personal jurisdiction, Judge McCormick says. For example, the Plaintiff alleges that Jenkins, who served on the Health Fidelity Board, was also the Chief Administrative and Operating Officer of UPMC Health Plan. But Jenkins' presence on the Health Fidelity Board alone does not give rise to the inference that UPMC Health Plan conspired in any breach of fiduciary duty undertaken by any Board members during Jenkins' tenure, and the Plaintiff's theory is not more developed than that. The Plaintiff also alleges that UPMC Presbyterian executed the stockholder consent for the June 2015 Equity Plan Amendment, but claims challenging that amendment are also barred by the doctrine of laches. Further, as the Plaintiff acknowledges, UPMC Presbyterian was not a Health Fidelity stockholder. The printing of "UPMC Presbyterian" was more likely than not a typographical error by the UPMC representative that drafted the document and not supportive of a supposed conspiracy involving UPMC Presbyterian. Accordingly, the claims against Heppenstall and the UPMC Affiliates are dismissed pursuant to Court of Chancery Rule 12(b)(2). A full-text copy of the Court's Order dated Dec. 31, 2020, is available at https://tinyurl.com/yycw8654 from Leagle.com. V.K. KNOWLTON: Underpays Construction Workers, Latronico Claims --------------------------------------------------------------- PATRICK LATRONICO, individually and on behalf of all others similarly situated, Plaintiff v. V.K. KNOWLTON CONSTRUCTION AND UTILITIES, INC., Defendant, Case No. 5:20-cv-01474-XR (W.D. Tex., December 30, 2020) brings this complaint as a collective action against the Defendant for its alleged violations of the Fair Labor Standards Act for failure to pay overtime compensation. The Plaintiff was employed by the Defendant as an hourly-paid machine operator from March 2019 until December 2020. The Plaintiff asserts that although he and other similarly situated construction workers regularly worked in excess of 40 hours per week throughout their tenure with the Defendant, their overtime compensation was not accurately paid by the Defendant because the Defendant failed to include the non-discretionary bonuses that were paid to them in their regular rates when calculating their overtime pay. Moreover, the Defendant allegedly sometimes shaved its construction workers' hours to reflect fewer hours than they actually worked. The Plaintiff seeks a declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and a reasonable attorney's fees and costs. V.K. Knowlton Construction and Utilities, Inc. provides construction and utility services. [BN] The Plaintiff is represented by: Merideth Q. McEntire, Esq. 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: merideth@sanfordlawfirm.com josh@sanfordlawfirm.com VERITA TELECOMMUNICATIONS: Faces Green Suit Over Unpaid Overtime ---------------------------------------------------------------- KIP GREEN, on behalf of himself and all others similarly situated, Plaintiff v. VERITA TELECOMMUNICATIONS CORPORATION, Defendant, Case No. 1:20-cv-02872-PAG (N.D. Ohio, December 31, 2020) brings this complaint as a collective action against the Defendant for its alleged unlawful pay practices and policies in violations of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as an hourly-non-exempt area lineman and underground cable layer between approximately February 2019 and August 2019. The Plaintiff alleges that the Defendant failed to pay him and other similarly situated workers for the pre-shift and post-shift time performing duties, which are indispensable and integral to their principal duties, amounted to approximately 30-60 minutes each day. As a result, the Plaintiff and other similarly situated workers were not paid overtime compensation at one and one-half times their regular rate of pay for all of the hours they worked over 40 each workweek. Verita Telecommunications Corporation provides installation services of communications lines for cable and internet for commercial customers. [BN] The Plaintiff is represented by: David J. Steiner, Esq. Anthony J. Lazzaro, Esq. THE LAZZARO LAW FIRM, LLC 34555 Chagrin Blvd., Suite 250 Moreland Hills, OH 44022 Tel: (216) 696-5000 Fax: (216) 696-7005 E-mail: anthony@lazzarolawfirm.com david@lazzarolawfirm.com VIRGIN ISLANDS: Morton Suit Seeking Pay Under CARES Act Dismissed ----------------------------------------------------------------- The U.S. District Court for the District of Virgin Islands grants the Defendants' motion to dismiss the lawsuit entitled JAMAL A. MORTON, individually and on behalf of all others similarly situated v. THE UNITED STATES VIRGIN ISLANDS, The Honorable ALBERT BRYAN, JR., in his official capacity as the Governor of the United States Virgin Islands, JOEL A. LEE, in his official capacity as the Director of the Bureau of Internal Revenue, CLARINA MODEST ELLIOT, in her official capacity as the Commissioner of the Department of Finance, Case No. 3:20-cv-0109 (D. V.I.). Plaintiff Morton, an incarcerated individual at the Golden Grove Adult Correctional Facility located in St. Croix, U.S. Virgin Islands, commenced the litigation on behalf of himself and other similarly situated individuals, against the United States Virgin Islands and other officials of the Government of the Virgin Islands ("GVI") in their official capacities, seeking payment of the advance refund under the Coronavirus, Aid, Relief, and Economic Security Act of 2020 ("CARES Act"). Morton also sought a preliminary injunction, inter alia, to enjoin the Virgin Islands Bureau of Internal Revenue from refusing to pay him and other incarcerated individuals the advance refund prior to Dec. 31, 2020. During the course of the preliminary injunction proceedings, the evidence revealed that Morton did not file an income tax return until after the commencement of the lawsuit. Subsequently, at the conclusion of the preliminary injunction hearing, the Court directed the parties to brief the issue as to whether Morton had standing to bring his claims. The GVI, thereafter, filed a motion to dismiss for lack of subject matter jurisdiction. Morton filed an opposition and the GVI filed a response thereafter. Upon a full consideration of the arguments made by the parties and the relevant legal authority, the Court concludes that it lacked subject matter jurisdiction at the time this lawsuit was filed and, therefore, the complaint will be dismissed. The CARES Act was passed by Congress and signed into law by President Trump on March 27, 2020, to provide economic relief to certain individuals, who reside in the United States (including the U.S. Virgin Islands) during the COVID-19 pandemic. The portion of the CARES Act relevant to the litigation amended the Internal Revenue Code providing for Economic Impact Payments ("EIP") to be paid directly to eligible individuals through a tax credit to be paid in 2021 based on an individual's 2020 income tax return, or as an advance refund to be paid by Dec. 31, 2020, based on an individual's 2019 income tax return. If an eligible individual had not filed a 2019 tax return, that individual would still be eligible to receive an advance refund based on that person's 2018 tax return. The Internal Revenue Service ("IRS"), the agency tasked with administering the distribution of EIP benefits to U.S. tax filers, provides advance refunds to individuals who have filed a tax return for either the 2018 or 2019 tax year and to those already receiving social security benefits, without taking any additional action to receive the advance refund. Although the CARES Act does not exclude incarcerated individuals from eligibility for EIP benefits, the IRS website announced on May 6, 2020, that incarcerated individuals do not qualify for payments under the CARES Act. The IRS requested that any incarcerated individuals, who received EIP checks return them to the IRS, and thereafter withheld additional payments from being made to incarcerated persons. On Nov. 3, 2020, Morton filed the instant action against the GVI to challenge the Defendants' unauthorized and unlawful refusal to issue advance EIP under the CARES Act to persons incarcerated in the USVI. In the complaint, Morton discloses that he is a U.S. citizen and USVI resident, who has been under custody of the Bureau of Corrections since 2009. He stated that he has not filed a tax return for over a decade because he did not have a filing requirement since his income was below the gross income exclusion. Morton alleges that he has not received an EIP from the BIR. The GVI filed a Motion to Dismiss for Lack of Jurisdiction on Dec. 14, 2020. It argues in its motion to dismiss that the Court lacks subject matter jurisdiction because the CARES Act requires an individual to first file a tax return in order to be eligible to receive an advance refund under section 6428(f) of the Internal Revenue Code. Therefore, the GVI argues, because Morton did not file a tax return prior to commencing this lawsuit, he lacks standing to claim any benefits under the CARES Act. The Court agrees. While Morton satisfies the definition of an "eligible individual" under section 6428(d) because he is not a nonresident alien, not a person with respect to whom another individual can claim a deduction on a tax return, and obviously is not an estate or trust, the CARES Act clearly contemplates an additional requirement: the filing of a tax return in order to receive an EIP advance refund, District Judge Robert A. Molloy notes. In the case, Morton commenced the lawsuit on Nov. 3, 2020. It is undisputed that Morton did not file his 2019 income tax return with the BIR until Nov. 16, 2020. Thus, Morton had not suffered an injury-in-fact at the time that he filed his claim. Because the Court concludes that the CARES Act contemplates the filing of a tax return -- or that an individual be a recipient of social security benefits -- in order to receive the advanced refund, Morton did not have standing to commence this lawsuit. The Court finds the analysis in Golden v. V.I., 47 Fed. Appx. 620 (3d Cir. 2002) persuasive and appropriate on the facts of the case and holds that Morton had not met the procedural requirements of the CARES Act at the time he filed his claim. Citing Woosley v. United States District Court, 693 Fed. Appx. 144, 147 (3d Cir. 2017), Judge Molly writes that absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff's claims, and they must be dismissed. Morton did not have standing at the time he filed the complaint. Therefore, the Court does not have subject matter jurisdiction to adjudicate the claim. For the reasons stated, the Court grants the Defendants' motion to dismiss. A full-text copy of the Court's Memorandum Opinion dated Dec. 31, 2020, is available at https://tinyurl.com/y3nb5amq from Leagle.com. Joseph A. DiRuzzo, III, Esq. -- jd@diruzzolaw.com -- DiRuzzo & Company, in Ft. Lauderdale, Florida, for Jamal Morton. Ariel Marie Smith-Francois, Assistant Attorney General Christopher M. Timmons, Assistant Attorney General Virgin Islands Department of Justice, in St. Thomas, Virgin Islands, for the Defendants. VIVINT INC: Wins Bid to Compel Arbitration in Petrozzino Suit ------------------------------------------------------------- The U.S. District Court for the District of New Jersey grants the Defendant's Motion to Compel Arbitration in the lawsuit styled JEFFREY PETROZZINO and CHRISTINE PETROZZINO, h/w, individually and on behalf of all others similarly situated v. VIVINT, INC., Case No. 1:20-cv-01949-NLH-KMW (D.N.J.). The Plaintiffs allege that on Aug. 25, 2017, they were visited at their residence by a door-to-door sales representative from the Defendant, who solicited them to purchase one of its home security systems. The Plaintiffs agreed to purchase the system, based, they allege, upon the Defendant's representations that its home security system was of good quality, functional, and appropriate for Plaintiffs' use, and that Vivint would pay off the remaining balance due on Plaintiffs' existing home security system. On Aug. 25, the Defendant provided the Plaintiffs with a one-page document titled "Purchase and Services Agreement" related to their purchase of the security system; that document was signed by both the Plaintiffs, although it does not appear that it was ever signed by a representative of the Defendant. Then, on August 27, the Defendant's technician installed the system, and the Defendant sent the Plaintiffs an email which referenced an attached "Order Confirmation" document. That document contained a "Schedule of Equipment and Services," an "E-Sign Consent" form, and another Purchase and Services Agreement. The August 27 version of the Purchase and Services Agreement provided an updated price for the equipment purchased by the Plaintiffs, and also included a second page with a number of additional terms and conditions. Those terms and conditions included an "Entire Agreement" clause stating that the August 27th contract "replaces any earlier oral or written understanding or agreements," and a clause requiring that any claims "directly or indirectly arising out of, relating to, or in connection with the Agreement regardless of what legal theory" must be submitted to arbitration on an individual basis. While the Plaintiffs signed the August 27 agreement as well, they allege that they were unaware that the agreement was not identical to the version emailed to them on August 25, and had no reason to suspect that the 'Order Confirmation' as characterized by the Defendant, was actually a contract with terms which varied from the original contract sent the prior day. The Plaintiffs allege that over the following months they suffered a series of issues with their home security system; the specifics of those issues are not relevant for the present motion. During their attempt to resolve those issues, the Plaintiffs requested and received a copy of the August 27th agreement from the Defendant on April 3, 2019; it was not until Nov. 4, 2019, that Plaintiff Jeffrey Petrozzino discovered that the August 27th email had "included a different version of the Agreement." On Feb. 24, 2020, the Plaintiffs filed their original complaint. After the Court issued multiple orders to show cause related to jurisdictional issues, they filed the operative amended complaint on March 24, 2020. The putative class action complaint alleges four causes of action: (1) violations of the New Jersey Consumer Fraud Act, both for the underlying issues with the security system and the Defendant's actions related to them, and for the Defendant's actions in getting the Plaintiffs to sign the August 27 agreement which included the arbitration agreement; (2) breach of express and implied warranties; (3) negligent misrepresentation; and (4) breach of the duty of good faith and fair dealing. On June 22, the Defendant filed the present motion to compel arbitration on an individual basis and stay proceedings. The Court finds that, under the standard applied to motions filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Plaintiffs have failed to put forth sufficient factual allegations supporting a claim of fraud in the execution to defeat the present Motion and justify further discovery on the question of arbitrability. District Judge Noel L. Hillman opines that the Plaintiffs have simply failed to allege any misrepresentations that rise to the level of intentional fraud by the Defendant. The Plaintiffs only allege that the email made no mention of the fact that the 'Order Confirmation' email had attached a different version of the Agreement from the version sent the day before, and that they had no reason to suspect that the 'Order Confirmation' as characterized by the Defendant, was actually a contract with terms which varied from the original contract. Judge Hillman states that, these allegations, even if true, simply do not rise to the level of fraud, or even necessarily constitute misrepresentations. Simply put, the Plaintiffs have not alleged any representations by the Defendant that could plausibly constitute fraud. Nor have they alleged or demonstrated that they did not have a reasonable opportunity to obtain knowledge of the agreement's terms due to excusable ignorance. Accordingly, the Court finds that the Plaintiffs have failed to sufficiently allege fraud in the execution of the August 27th Purchase and Services Agreement. That agreement contains a clause requiring them to arbitrate the rest of their claims on an individual basis, and they have conceded that they signed the agreement. The Court, therefore, finds that the existence of an enforceable arbitration clause is clear from the surface of the Plaintiffs' complaint and the supporting documents, and that they have failed to put forth evidence in opposition to this Motion sufficient to put the enforceability of that clause into question. Further discovery on the issue of arbitrability is unnecessary, and the Court will grant the Defendant's motion to compel arbitration on an individual basis and stay this proceeding pending that arbitration. A full-text copy of the Court's Opinion dated Dec. 31, 2020, is available at https://tinyurl.com/y28vnxlf from Leagle.com. BRANDON G. JOHNSON, GERSTEIN GRAYSON & COHEN LLP, in MT. LAUREL, New Jersey, Attorney for Plaintiffs Jeffrey Petrozzino and Christine, Petrozzino. JENNY NICOLE PERKINS -- perkinsj@ballardspahr.com -- BALLARD SPAHR LLP, in PHILADELPHIA, PENNSYLVANIA; WILLIAM PATRICK REILEY -- reileyw@ballardspahr.com -- BALLARD SPAHR, in CHERRY HILL, New Jersey, Attorneys for Defendant Vivint, Inc. WESTWEGO, LA: Patton Files Civil Rights Suit in E.D. Louisiana -------------------------------------------------------------- A class action lawsuit has been filed against Westwego City, et al. The case is captioned as John Wesley Patton, on behalf of himself and all other similarly situated v. Westwego City, Kenner City, Jefferson Parish; Jefferson Parish Sheriff's Office, Jefferson Parish District Attorney's Office, Indigent Defenders Board 24th JDC, Westwego Police Department, Kenner Police Department, Jefferson Parish Correctional Center, Judiciary Commission of Louisiana, Louisiana Attorney Disciplinary Board Office of Disciplinary Counsel, Jefferson Parish Sheriff Office Internal Management Bureau, Jon A. Gegenheimer, 24th JDC, CLerk of Court, 24th Judicial Administrator; 24th Judicial Judges, New Orleans Family Justice Center, John Courtney Wilson, Attorney-at-Law, Martin E. Regan, Jr., Attorney at Law and Network Strategist, Case No. 2:20-cv-03408-ILRL-JVM (E.D. La., Dec. 14, 2020). The lawsuit arises from the Defendants' alleged violation of prisoners' civil rights. The case is assigned to Judge Ivan L.R. Lemelle. [BN] Plaintiff John Wesley Patton, who is currently incarcerated at Jefferson Parish Correctional Center in Gretna, Louisiana, appears pro se. XTO ENERGY: Class Certification Bid Stayed in Kriley Suit --------------------------------------------------------- In the class action lawsuit captioned as DOUGLAS KRILEY and TINA KRILEY, THOMAS A. MICHEL and CAROL L. MICHEL, GERALDINE C. WIEFLING, and CHARLES E. WADDINGHAM II and CAROL G. WADDINGHAM, v. XTO ENERGY INC., Case No. 2:20-cv-00416-CRE (W.D. Pa.), the Hon. Judge Cynthia Reed Eddy entered an order: 1. staying and administratively closing case until the later of (i) the close of discovery related to class certification and (ii) the conclusion of the mediation preceding class certification in Salvatora v. XTO Energy Inc., Case No. 2:19-cv01097-CRE; 2. directing the defendant XTO Energy to produce the documents it agreed to produce in response to the Kriley plaintiffs Request for Production No. 1; and 3. directing the parties to submit a status report after the mediation in Salvatora v. XTO occurs. Clerk is to mark 'CASE CLOSED'. Counsel for the Plaintiffs and the Classes, are: David A. Borkovic, Esq. JONES, GREGG, CREEHAN & GERACE, LLP 411 Seventh Avenue, Suite 1200 Pittsburg PA, 15219 E-mail: dab@jcg.com Counsel for the Defendant, are: Justin H. Werner, Esq. Nicolle R. Snyder , Esq. REED SMITH LLP E-mail: jwerner@reedsmith.com nbagnell@reedsmith.com - and - Elizabeth L. Tiblets, Esq. K&L GATES LLP 301 Commerce Street, Suite 3000 Fort Worth, TX 76102 E-mail: Elizabeth.tiblets@klgates.com [*] 1,548 Workplace-Related Class Action Rulings Set New Record --------------------------------------------------------------- Edward Segal, writing for Forbes, reports that driven by the pandemic, the 1,548 rulings on workplace-related litigation in the U.S. last year set a new record, according to the 17th Annual Workplace Class Action Litigation Report that was prepared and released on Jan. 4 by Seyfarth Shaw, an employment and labor law firm. "The cases decided in 2020 foreshadow the direction of class action litigation in the coming year," warned the report's author and editor, Gerald L. Maatman, Jr., a senior partner and co-chair of the firm's class action defense group. "One certain conclusion is that employment law class action and collective action litigation is becoming ever more sophisticated and will continue to be a source of significant financial exposure to employers well into the future," he said. Despite the Covid-19 pandemic, settlement values increased last year for both the plaintiffs' bar and government enforcement litigation, Maatman noted. "While the level of Federal enforcement litigation slowed in 2020, employers should expect the new Biden administration to reverse course and gear up for aggressive litigation in 2021," he said. The 850-page report analyzed the 1,548 class action rulings on wage and hour, employment discrimination, Employee Retirement Income Security Act (ERISA), and other workplace lawsuits filed against businesses last year. The rulings are up more than five percent from 2019. Sixty-one of the rulings concerned class actions related to the Covid-19 pandemic or implications of the coronavirus in the workplace. According to Maatman, the lawsuits included those filed by employees who alleged they were "encouraged" to continue attending work, were prevented from adequately washing hands or sanitizing workstations, and that their employers' efforts fell short of providing protection of their workers' health. The first two chapters of the report are available as a PDF. Copies of the entire litigation report can be requested on the report's website. Themes And Trends The report identifies several emerging litigation trends that will face U.S. companies this year. They include the impact of Covid-19, the ramping up of workplace class action lawsuits by worker and labor advocates, an increase in the size of settlements, a priority on government enforcement litigation by the incoming Biden administration, and an increase in wage and hour litigation. Potential For Damage Like other crisis situations, lawsuits can inflict serious damage on companies and organizations. "Today, workplace class actions remain at the top of the list of challenges that keep business leaders up at night," Maatman observed. "Whereas an adverse judgment has the potential to bankrupt a business, adverse publicity from a threatened or ongoing class action has the potential to eviscerate market share. "At the same time, negotiated resolutions bring the potential for 'copy-cat' class actions and ‘follow on' claims, whereby multiple groups of plaintiffs' lawyers create a domino effect of litigation filings that challenge corporate policies and practices in numerous jurisdictions at the same time or in succession. Hence, workplace class actions can impair a corporation's business operations, jeopardize the careers of senior management, and cost millions of dollars to defend," he noted. Top 10 Settlements The report did not track all settlements, only the 10 largest ones, which totaled $1.58 billion, an 18 percent increase over 2019 ($1.34 billion), but down substantially from 2017 ($2.75 billion). The settlements are down from previous years thanks to a 2018 U.S. Supreme Court decision that led to fewer large class actions, and steps by other courts that resulted in smaller-sized classes where settlements are also smaller. The 2020 report did not include pandemic-related settlements, and none of the top 10 settlements analyzed in 2020 involved the coronavirus. According to the report, the top 10 settlements " . . . were spread out across the country, with California leading the way with two settlements in federal court and two in state court. Eight of the 10 settlements involved gender discrimination allegations in areas such as pay, pregnancy, and sexual misconduct." The settlements included: $310 million - In Re Alphabet, Inc. [Google's parent company] Shareholder Derivative Litigation; a shareholder class action lawsuit over allegations of sexual misconduct involving executives. $41 million - In Re Wynn Resorts, Ltd. Derivative Litigation; a shareholder class action alleging sexual misconduct by senior company officials. $15.5 million - Florida Education Association, et al. v. State Of Florida, Department Of Education; a class action settlement of race discrimination claims involving teachers who alleged that a state program paid them unequal bonuses based on race. $14 million - Borders, et al. v. Wal-Mart Stores, Inc.; a class action settlement of pregnancy discrimination claims involving pregnant workers who claimed they were denied the benefits offered to other workers similarly-situated in their ability or inability to work. $14 million - Brown, et al. v. Cook County, Illinois; a class action brought by female public defenders and law clerks alleging the county did not protect them from regularly wrongful sexual harassment inflicted by detainees and other men in the county lockup. $11.63 million - Rabin, et al. v. PricewaterhouseCoopers, LLP; an employment discrimination class action involving older job applicants alleging they were denied employment because of their age. $7.75 million - Chen, et al. v. Western Digital Corp.; a class action brought by 1,370 female employees against their employer alleging violations of the California Equal Pay Act. $3 million - Bokall, et al. v. Los Angeles Times Communications; a class action lawsuit brought by employees alleging violations of the California Equal Pay Act. $3 million - Porter, et al. v. Pipefitters Association Local Union 597; a race discrimination class action where 350 African American workers alleged, they were provided fewer job opportunities by a union. $2.8 million - Borrego, et al. v. Raley's Family Of Fine Stores; an employment discrimination class action involving grocery store workers who claimed the company discriminated against them based on pregnancy. Success and Failure Factors Maatman observed that, "compliance with the patchwork quilt of workplace laws at the federal, state, and local levels and empathetic and effective treatment of employee problems and concerns remain the twin fundamentals that often define success or failure in dealing with high-stakes class action litigation. "These essentials will become even more important in the coming year as the plaintiffs' class action bar is posed to pivot off the expected 'employee-friendly/ramped up business regulation' stance of the incoming Biden Administration," he said. Advice For Business Leaders There are important steps business executives can take to address issues in the workplace that can lead to litigation. Maatman said, "Solid HR fundamentals remain among the best defense mechanisms to identify and resolve workplace problems that often grow into class actions." He recommended that business leaders: Administer robust workplace policies and practices that provide "workplace due process." This will ensure that if a worker has problems, complaints, or grievances, the business will be poised to investigate the issues, respond to the concerns, and remediate the problems if required by law or the company's policies. Consider using workplace arbitration agreements with employees that contain class action waivers. The agreements, when properly drafted and disseminated to a workforce, create a powerful risk management tool to limit and control workplace class action litigation. Invest in rigorous compliance with workplace laws -- especially federal, state, and local laws that govern how workers are paid -- to eliminate problems that often result in workplace class actions. [GN] [*] Maurice Blackburn Mulls Business Insurance Class Action ----------------------------------------------------------- James Fernyhough, writing for Australian Financial Review, reports that law firm Maurice Blackburn says it has had "scores" of inquiries following an advertising campaign for a potential case against business interruption insurance providers. Such a class action could force insurers, including IAG, Suncorp and QBE, to settle claims they had so far steadfastly refused to pay, despite losing a precedent-setting test case in the NSW Court of Appeal in November. [GN] [*] Securities Lawsuits v. Non-U.S. Cos. on Track for Record High ----------------------------------------------------------------- Quinn Emanuel Urquhart & Sullivan, LLP reports that the number of securities class actions filed against non-U.S. companies in the first half of 2020 outpaced the number of such filings in prior years. According to a recent AIG report, of the 111 total core filings commenced in the first half of 2020, 35 were against non-U.S. companies, constituting a filing rate of 31.5%, which is significantly higher than the rate of filings in the first half of 2019. AIG, US Securities Class Actions: International US-Listed Companies, H1 2020, at 1 (June 26, 2020), https://www.aig.co.uk/content/dam/aig/emea/united-kingdom/documents/Financial-lines/class-actions/class-actions-q2-2020.pdf. In fact, these are the highest rates "observed since the wave of filings related to reverse mergers in 2011," Cornerstone Research, Securities Class Action Filings: 2020 Midyear Assessment, at 1 (2020), and are significantly higher than "the five-year average annual foreign filer litigation rate of 16%," Kevin LaCroix, First Half of 2020 Securities Suits Against Foreign Issuers Outpaced Overall Filing Levels, The D&O Diary (Sept. 13, 2020), https://www.dandodiary.com/2020/09/articles/international-d-o/first-half-2019-securities-suits-against-foreign-issuers-outpaced-overall-filing-levels/#more-20570. Notably, the majority of these filings were asserted against companies located in Asia, particularly in China. AIG, at 1. As a consequence, total class action securities filings against non-U.S. companies are on track to become the highest in recorded history. The impact is even more striking when put into context. Non-U.S. companies represent only 16% of all companies listed on U.S. exchanges. That securities suits filed against non-U.S. companies, which represent a small fraction of companies listed on U.S. exchanges, make up 31.5% of the total filings suggests that non-U.S. companies are more likely to be sued under U.S. securities laws than domestic companies. In fact, core filings against S&P 500 firms appear to be slowing. See Cornerstone, at 2 (such filings "occurred at an annualized rate of 4.8%, the lowest since 2015"). Legal Backdrop Section 10(b) of the Exchange Act, the most litigated provision of the U.S. securities laws, makes it "unlawful for any person, directly or indirectly … [t]o use or employ … any manipulative or deceptive device or contrivance in contravention" of Securities and Exchange Commission rules and regulations "in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered." 15 USC. Sec. 78j(b). In Morrison v. National Australia Bank, Ltd., the Supreme Court considered the scope of the Exchange Act as foreign companies and held that "there is no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially, and … therefore conclude[d] that it does not." 561 US 247, 265 (2010). The Court thus affirmatively limited the scope of the Exchange Act to "only deceptive conduct ‘in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.'" Id. at 266. In light of Morrison, publicly-traded non-U.S. companies avoided selling their securities on U.S. exchanges to limit exposure to liability under the Exchange Act. Instead, many would only trade their securities as American Depository Receipts ("ADRs") on U.S. over-the-counter markets, believing this would insulate them from liability under U.S. securities laws. This understanding has been turned on its head due to the Ninth Circuit's 2018 decision in Stoyas v. Toshia Corp., 896 F.3d 933 (9th Cir. 2018), cert. denied 139 S.Ct. 2766 (2019). In Stoyas, the Ninth Circuit considered whether Toshiba's ADR transactions on the over-the-counter market, "as opposed to direct purchases of Toshiba common stock" traded on the Tokyo Stock Exchange, were subject to the Exchange Act. Id. at 939. In determining that they were, the Ninth Circuit held that ADRs are securities for purposes of the Exchange Act, id. at 943, and that Morrison prescribed a "transaction test," which details the two categories of transactions subject to the Exchange Act: those that (1) "involve[] a security listed on a domestic exchange"; or (2) "take[] place in the United States." Id. at 944. As to the first category of transactions, the Ninth Circuit held that although the Exchange Act regulates over-the-counter markets, the OTC Link (the market at issue) could not be considered an "exchange" under the Exchange Act. Turning to the second category, noting that the Supreme Court did not articulate a test to determine whether a transaction was "domestic," the Ninth Circuit adopted an "irrevocable liability" test from the Second Circuit's decision in Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60 (2d Cir. 2012), which dictates that "a securities transaction occurs when the parties incur irrevocable liability," which would determine both the timing and location of the transaction. Id. at 948 (quoting Activist Value, 677 F.3d at 67). The test requires a plaintiff to plausibly allege "that the purchaser incurred irrevocable liability within the United States to take and pay for a security, or that the seller incurred irrevocable liability within the United States to deliver a security," to be considered a domestic transaction for purposes of Morrison. Id. Thus, the Ninth Circuit held that, if properly pled, the sale of the ADRs at issue could fall into the second category of transactions subject to the Exchange Act under Morrison. Id. at 949. Causes and Implications of The Trend Although the implication of Morrison is that non-U.S. companies' securities transactions on U.S. exchanges are subject to the Exchange Act, that holding does not appear to account for the steady rise in such claims since. Some commentators have argued that the impact of cases like Stoyas may have a role to play in the global trend of increased litigation against all non-U.S. companies because such cases are expanding the scope of claims against non-U.S. companies, even when they are not listed on U.S. exchanges. Though the statistics demonstrate that non-U.S. companies listed on U.S. exchanges are more likely than domestic companies to be sued for U.S. securities violations, some have argued that the increase has little to do with the companies' locations, and more to do with the industries in which they operate. For example, many conduct business in high litigation risk industries, such as pharmaceuticals and technology. Nevertheless, because U.S.-listed Chinese and other Asian companies continue to be sued more frequently than other foreign companies, U.S.-listed Asian companies may constitute their own category of litigation risk. Aside from the implications of increased litigation, i.e. greater exposure to financial liability to settle or otherwise dispose of such claims, the trend has also resulted in significant changes in insurance pricing. Until recently, insurance carriers provided insurance to directors and officers ("D&O insurance") of non-U.S. companies at a significant discount to their domestic counterparts. However, to account for the increased frequency and severity of securities litigation against non-U.S. companies, insurance carriers are now charging steeper premiums for D&O insurance to non-U.S. companies. Takeaway The trend of increased securities class actions filed against non-U.S. companies shows no indications of slowing. Such companies should continue to monitor U.S. securities litigation against other non-U.S. companies, assess their D&O insurance options, and understand that certain industries are generally subject to greater litigation risk than others. [GN] [*] Squire Patton Releases 2021 TCPA Class Action Predictions ------------------------------------------------------------- Daniel L. Delnero, Esq., of Squire Patton Boggs (US) LLP, in an article for The National Law Review, reports that welcome to 2021, TCPAWorld. May it be slightly less terrible than 2020. And on that note, here are my predictions for the TCPA and calling regulations in 2021. 1. Increase in state law claims. Up until the past year, the major players in the TCPA plaintiff's bar eschewed state statutes for nationwide class actions filed solely under the TCPA. The reason for doing so is simple. They leveraged the prospect of large, nationwide class actions to extract million dollar settlements for even the most specious of violations. The SPB class action defense team has a well-documented history of beating such actions, but far too many defense teams caved and simply paid to make the cases go away. So it was rational for even the most sophisticated plaintiff's firms to turn out TCPA class action after TCPA class action, with nary a mention of state law. That began to change in the last few years in circuits that rejected Marks and required a random or sequential number generator. In these circuits, plaintiff's attorneys began bringing state-specific classes and subclasses under state ADAD and telemarketing statutes that do not have random or sequential number generation requirements. State statutes tend to have different elements of proof than the TCPA, which can make it more difficult to sustain a class, but many have two potential pitfalls: significantly greater damages and fee-shifting provisions. With these two pitfalls, plaintiff attorneys can make up for smaller class size through the prospect of higher damage awards -- in some cases as high as $15,000 per call -- and the prospect of attorneys' fees awards. I expect that this trend towards greater focus on state law claims will continue even if the Supreme Court comes out of left field and affirms Marks in Duguid, for the reasons in my next prediction. 2. Continued federal court hostility to no-injury class actions. The Czar touched on this in his post about the Supreme Court's recent grant of certiorari in an FCRA case, but it looks like Spokeo finally has teeth in the TCPA context. That is, courts -- primarily in the Eleventh Circuit -- have started systematically dismissing TCPA class actions where neither the plaintiff nor putative class members suffered in real injury. I anticipate that this trend will continue and will spread beyond the Eleventh Circuit. Federal courts were already busy. And the Covid-19 pandemic has caused significant backlogs in courts throughout the country. Civil cases in general are often taking a back seat as courts focus on criminal cases that have constitutional and statutory speedy trial requirements. I suspect that they will have little patience for cases were the only "injury" is annoyance or receiving a few unwanted texts or phone calls. As the Czar pointed out, the Eleventh Circuit has been aggressive in turning back no-injury TCPA cases, and I suspect courts in other circuits will start following suit. 3. Continued federal and state enforcement activity for actual fraudulent calls. Although the TCPA and its implementing regulations are filled with ticky-tack requirements, federal enforcement authorities, both at the DOJ and administrative agencies, have to prioritize where they focus their resources. So it is no surprise that they focus on calling campaigns that involve actual fraud and real consumer harm, rather than ticky-tack "violations" for otherwise legitimate calls. For example, federal agencies are much more likely to target a company peddling a pyramid scheme than one with a 3.2% abandoned call rate. Entering the new year, we expect that this trend will continue, with a particular emphasis on Covid-19-related fraud. We anticipate that the same trend will continue at the state level. State agencies obviously have more resource constraints than federal agencies, and therefore have to do an even greater job of prioritizing enforcement resources on true bad actors. This reality is likely to be starker in 2021, where the full effects of the pandemic on state budgets will be felt. 4. Binding agency deference will become archaic. Many commentators were surprised by how little deference was given to federal agencies as PDR Networks worked its way through appellate courts (including the Supreme Court, and back down to the Fourth Circuit). I wasn't. I've been saying for the past 10 years that agency deference -- even the entrenched Chevron deference -- are in real danger of suffering a death by a thousand wounds. Now, I'm even more bullish on this view than I was even three years ago. Rather than suffering a death by a thousand cuts, I believe it's at least possible that agency deference will be killed or neutered by one or two judicial bombs. I became more bullish on this position because I no longer believe that Chief Justice Roberts is the swing vote on this issue. Instead I think it's Kavanaugh. I always felt that even if Roberts had doctrinal misgivings about agency deference, he would be reluctant to allow a sweeping decision walking back decades of precedent. With the current makeup of the Court, however, I believe such an opinion is significantly more likely, with Roberts either dissenting or concurring. If Kavanaugh is willing to sign onto a broad opinion dispensing with agency deference as we know it, I see it as a very real possibility. This is my most controversial prediction, and I might look like an idiot 12 months from now, but it's certainly how federal courts are trending. 5. At least one major state will look seriously at banning telemarketing calls. I don't think it will actually happen in 2021, but I do think this is the year where outright bans on telemarketing calls will start to gain traction in state legislatures. We've been warning about this dangerous undercurrent for a few years, and heard first hand from a state senator in Colorado that they are considering the issue. Thus far, outright bans have only been discussed informally, or through fringe proposals that did not gain real traction. And although I do not think any outright bans will actually be signed into law in 2021, I do anticipate that they will gain more mainstream consideration at the state level. You'll want to keep an eye out for these, and get out ahead of the proposals. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***