/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210125.mbx C L A S S A C T I O N R E P O R T E R Monday, January 25, 2021, Vol. 23, No. 12 Headlines 012 SMILE: Lod-Central District Court Recognizes Class Action 22ND CENTURY GROUP: Noto Securities Class Suit Dismissed 96 WYTHE: Witherspoon Suit Alleges Illegal Retention of Tips ALABAMA: Judge Recommends Denial of Taylor Class Status Bid ALBERTSON'S INC: Or. App. Reverses Dismissal of Stewart UTPA Suit ALL AMERICAN: Faces Carter Suit Over Failure to Pay Overtime Wages AMAZON.COM INC: Sacks Sues Over Conspiracy to Raise eBooks' Prices APPLE INC: Extends MacBook Repair Program to Fix Stage Light Issues AUSTRALIAN INDIGENOUS: Retta Dixon Residents Unable to Move Claims BANK OF AMERICA: Faces Fraud Suit From EDD Debit Card Holders BANK OF AMERICA: Fails to Provide Account Info, Robinson Alleges BANK OF AMERICA: Yick Sues Over Stolen Money From EDD Cardholders BAYLOR SCOTT: Court Allows FLSA Class Action Lawsuit to Proceed BEYER & ASSOCIATES: Court Junks Rodriguez Class Action BIT DIGITAL: Faces Pauwels Securities Suit Over Stock Price Drop BLUE CROSS: 6th Cir. Affirms Fairness of Class Settlement in Shane BROADWAY ADVANCE: Fabricant Sues Over Unsolicited Telephone Calls BT GROUP: Chief Exec Has to Repel Move to Introduce UK Class Suit BT GROUP: Taps Simmons & Simmons to Assist in Consumer Class Suit CD PROJEKT: New Details Emerge on Mishandling of Cyberpunk 2077 CD PROJEKT: Responds to Second Cyberpunk 2077 Class Action Suit CD PROJEKT: To Vigorously Defend Cyberpunk 2077 Class Action Suit CHARTER COMM: Gennarelli Has Until May 14 to File Class Status Bid CHICAGO, IL: Challenges Predatory Towing Class Action Lawsuit CISION US: Mikityuk Class Suit Seeks Unpaid OT Under FLSA & NYLL COGNIZANT TECHNOLOGY: Settlement in Mishra Suit Gets Final Approval CONGRESSIONAL BANK: Bid to Certify Appeal in Esktrom Suit Denied CONNECTICUT: Rogers Prisoner Suit Dismissed Without Prejudice CONSECO LIFE: $27MM Settlement in Burnett Suit Wins Final Approval COSTA DEL MAR: Jan. 31 Settlement Claims Filing Deadline Set COSTCO WHOLESALE: Asks Court to Junk Rough Class Certification Bid COSTCO WHOLESALE: March 25 Hearing on Class Cert. Denial Bid Voided COSTCO WHOLESALE: Rough Seeks to Certify Class & Three Subclasses CREAM-O-LAND DAIRY: Reversal of Summary Judgment in Branch Affirmed CREDIT CONTROL: Schwartz Sues Over Deceptive Debt Collection Letter CUYAHOGA COUNTY, OH: Summary Ruling Bid Nixed in Tarrify Class Suit CYTOMX THERAPEUTICS: Securities Class Suit Tossed w/o Prejudice DECISION DIAGNOSTICS: Rosen Law Firm Reminds of March 16 Deadline DOWNHOLE TECHNOLOGY: Esquivel Labor Suit Transferred to S.D. Texas DRIVELINE RETAIL: McGlenn's Renewed Bid for Class Status Tossed ECOARK HOLDINGS: Notice of Dismissal Filed in Abrahms Class Suit EDEN CREAMERY: Feb. 17 Briefing for Class Status Bid Sought ENEDIS SA: Opponents of Linky Meters Appeal Win Partial Victory FANNIE MAE: Class Certification Filing Due on June 18 FEDERAL MANAGEMENT: Fox Rothschild Attorneys Discuss Court Ruling FIRST NATIONAL: Faces Suit Over Sale of Repossessed Properties FLORIDA STATE UNIVERSITY: Class Cert. Deadline Extended to March 22 GEORGE W. KUHN: Granting of Summary Disposition in Kickham Affirmed GREAT ARROW: Pennsylvania Court Refuses to Dismiss Then FLSA Suit GROWERSHOUSE LLC: Website Inaccessible to the Blind, Williams Says HEALTH INSURANCE: March 23 Settlement Fairness Hearing Set HIGGINS BENJAMIN: Jan. 29 Extension to File Class Status Bid Sought HYDRO GENERATION: Williams Seeks Website Access for Blind Users IKEA US: Pennsylvania Court Refuses to Dismiss Dukich Suit Claims IML LABELS: Collects Biometrics Without Consent, Opperman Claims INPHI CORP: Rosenfeld Challenges Proposed Merger With Marvell INTEL CORP: Continues to Defend Class Suit Over 7nm Product Delays INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway INTELSAT CORP: Chairman Faces New Shareholder Suit Amid Class Suits JABU CO: Blind Users Can't Access Website, Williams Suit Claims JACOBO FARM: Class Cert. Schedule Conference Continued to Feb. 10 JELD-WEN HOLDING: Mississippi PERS, et al., Seek to Certify Class K12 INC: Gross Law Firm Announces Securities Class Action Filing KANEX INC: Rakhmanin Labor Suit Moved From N.D.N.Y. to E.D.N.Y. KIMBERLY-CLARK: March 16 Deadline for Filing of Second Amended Suit L'OREAL USA: Young Consumer Suit Moved From N.D. Cal. to S.D.N.Y. LAKESIDE MEDICAL: Sends Unsolicited Text Messages, Moore Suit Says LASIK VISION: Extension of Class Cert. Related Deadlines Sought LIBERTY MUTUAL: California Court Refuses to Remand Marano Suit LLOYD'S LONDON: E.D. Pennsylvania Dismisses IRG Insurance Suit LOANCARE LLC: Alvarez FCCPA & FDUTPA Class Status Bid Nixed LOS PRADOS: Meza FLSA Suit Seeks Unpaid Overtime Premium for Bakers LOUISVILLE, KY: Faces Inmates' Class Suit Over Release System MARATHON OIL: Objection to Magistrate's Order in Kunneman Overruled MCKENNA & DUPONT: Phillips Seeks Final OK of Class Settlement Deal MDL 2323: Atty. Lien Dispute in NFL Concussion Injury Suit Resolved MDL 2873: AFFF Products Contaminate Groundwater, Jackson Claims MDL 2873: Fenner Sues Over Injury From Exposure to Toxic AFFF MENARD INC: Earls, et al. Seek to Certify Five Classes MEWBOURNE OIL: Underpays Gas Royalties, Buckles Estate Suit Claims MIDLAND CREDIT: Sandel Sues Over Misleading Debt Collection Letters MIDWESTERN PET: Dog Foods Contain Mold & Toxins, Simmons Suit Says NACHURS ALPINE: Gray Sues Over Race Discrimination, FCRA Violations NEW MOOSEJAW: Class Certification Hearing Rescheduled to Feb. 25 NEW YORK CITY: EMS Officers Union Seeks to Certify 3 Classes NIELSEN HOLDINGS: Gallo Sues Over Misleading Proxy Statement NYC MEDICAL: Lawrence Suit Seeks Collective Status O.J. SMITH: Notice Content & Distribution Method in Gonzalez Okayed OHIO BUREAU: Unlawfully Collects Premium Payments, Parma Alleges OLD DOMINION: Seeks Mediation in Rizk Class Suit OPA-LOCKA, FL: Cert. of Water Deposit Class in Suarez Suit Flipped ORTHOPEDIATRICS CORP: Rosen Law Investigates Securities Claims PARADISE AWNINGS: Underpays Construction Workers, Martinez Alleges PARTY CITY: McInnis BIPA Class Suit Removed to N.D. Illinois PERRIGO COMPANY: March 22 Class Action Opt-Out Deadline Set PK MANAGEMENT: Bid to Reconsider Court Order Tossed in Riley Suit PRIME FUNDING: Faces Fabricant Suit Over Unsolicited Phone Calls PROGRESSIVE DIRECT: Class Certification Opposition Due on Feb. 26 RNMG INC: Fails to Pay Proper Overtime Wages, Baugh Suit Claims ROBINHOOD FINANCIAL: Luparello Balks at Misleading Trading Services SAGINAW COUNTY, MI: Court Narrows Claims in Amended Fox GPTA Suit SAN FRANCISCO SHERIFFS: Initial OK of Class Settlement Bid Tossed SANMEDICA INT'L: Pizana's Bid to Resume Deposition Partly Granted SCIENCE OF LAB: Discards All Data, AI Algorithms Amid Criticism SCOTIABANK: Class Action Mulled Against Former Officer Over Fraud SETERUS INC: Morandi & Mercado Seek to Certify Class SHENANDOAH VALLEY: 4th Cir. Flips Summary Judgment in Doe 4 Suit SIMS GROUP: Court Conditionally Certifies Employee Collective SMART ENERGY: Xenes Sues Over Unsolicited Telemarketing Calls SOLARWINDS INC: Stockholders File Class Action After Cyberattack SPARKY BOY: Williams Sues Over Blind-Inaccessible Online Store SPY OPTIC: Angeles Suit Seeks Full Website Access for Blind Users ST MARY AND ST MINA: Walden Seeks Unpaid Store Clerks' OT Wages SUBARU OF AMERICA: Anderson Suit Moved From N.D. Ala. to D.N.J. SUBARU OF AMERICA: Griffin Class Suit Transferred to D. New Jersey SUTTER VALLEY: Tinnin Allowed to File 1st Amended Class Complaint TARGET CORP: Ninth Cir. Affirms Summary Judgment in Greenberg Suit TASTEBUD MARKET: Candia Seeks Unpaid OT and Spread-of-Hours Wages TOYOTA MOTOR: Deadline to File Class Status Bid Set for April 9 TRITERRAS INC: Howard G. Smith Reminds of Feb. 19 Deadline TSR INC: Final Settlement Approval Hearing Set for April 21 TWIN CITY: Pennsylvania Court Dismisses Zagafen Insurance Suit UNILEVER PLC: Faces Class Action Over 'Defective' Shampoo Products UNILEVER UNITED: Vizcarra Must File Class Status Bid by June 25 UNITED FUND: Fabricant Sues Over Unsolicited Telemarketing Calls UNITED STATES: Lado Class Suit Gets TRO on "Final Transit Rule" VILLAGES TRI-COUNTY: Watson Seeks to Certify Class of Nurses WALMART INC: Faces Stanton Securities Suit Over Stock Price Drop WELLS FARGO: Neglects Request of Account Information, Mendoza Says WEST VIRGINIA: Richards Directed to File Class Cert. Bid by Feb. 15 YOUNG LIVING: Oil Products Have No Therapeutic Benefits, Suit Says ZILLOW GROUP: Stipulation on Dissemination of Notices Approved [*] Clayton Utz, ICP Launch Insurance Suit Over COVID-19 Losses ********* 012 SMILE: Lod-Central District Court Recognizes Class Action ------------------------------------------------------------- Partner Communications Company Ltd. ("Partner" or the "Company") (NASDAQ: PTNR) and (TASE: PTNR), a leading Israeli communications operator, announces that on January 15, 2021, the Lod-Central District Court ruled to recognize the lawsuit against a subsidiary of the Company, 012 Smile Telecom Ltd. ("012 Smile"), as a class action, which concerns the claim that 012 Smile sold to its customers data browsing packages at a specified speed, which is not possible for them to achieve since the infrastructure does not support this speed. A similar decision was also given in a lawsuit against a competing company. The causes of action for which the motion was approved are, among others, misleading acts and breach of contract. 012 Smile is studying the decision and will treat it in accordance with the dates set by law. About Partner Communications Partner Communications Company Ltd. ("Partner") is a leading Israeli provider of telecommunications services (cellular, fixed-line telephony, internet and television services). Partner's ADSs are quoted on the NASDAQ Global Select Market™ and its shares are traded on the Tel Aviv Stock Exchange (NASDAQ and TASE: PTNR). [GN] 22ND CENTURY GROUP: Noto Securities Class Suit Dismissed -------------------------------------------------------- 22nd Century Group, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on January 19, 2021, that the company issued a press release announcing the dismissal with prejudice of the federal securities class action lawsuit captioned Noto v. 22nd Century Group, Inc., 19-CV-1285. A copy of the press release is available at https://bit.ly/2MgjfHA. 22nd Century Group, Inc., a plant biotechnology company, provides technology that allows increasing or decreasing the level of nicotine and other nicotine alkaloids in tobacco plants, and cannabinoids in hemp/cannabis plants through genetic engineering and plant breeding. 22nd Century Group, Inc. was founded in 1998 and is headquartered in Williamsville, New York. 96 WYTHE: Witherspoon Suit Alleges Illegal Retention of Tips ------------------------------------------------------------ KEENAN WITHERSPOON, individually and on behalf of others similarly situated, Plaintiff v. 96 WYTHE ACQUISITON LLC, TOBY MOSKOVITS, YOEL GOLDMAN, and any other related entities, Defendants, Case No. 501071/2021 (N.Y. Sup. Ct., January 14, 2021) brings this complaint as a class action against the Defendants seeking to recover unlawfully retained tips and gratuities pursuant to the New York Labor Law. According to the complaint, the Defendants employed the Plaintiff and other food service workers in furtherance of their catering business. However, the Defendants allegedly paid them an hourly wage only and did not pay them their rightful portion of the Mandatory Charge. The Defendants unlawfully withheld and retained portions of gratuities intended for food service employees, including but not limited to those collected by their assessment of the Mandatory Charge, the suit added. The complaint further asserts that the Defendants willfully disregarded and purposefully evaded recordkeeping requirements of applicable New York State law by failing to maintain proper and complete records of mandatory charges in the nature of gratuities. 96 Wythe Acquisition LLC provides catering services owned and operated by Toby Moskovitz and Yoel Goldman. [BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 Tel: (516) 873-9550 ALABAMA: Judge Recommends Denial of Taylor Class Status Bid ----------------------------------------------------------- In the class action lawsuit captioned as JASON TAYLOR, v. JEFFERSON S. DUNN, et.al., Case No. 2:20-cv-00527-MHT-CSC (M.D. Ala.), the Hon. Magistrate Judge Charles S. Coody recommended that: 1. The plaintiff's motion for class certification be denied. 2. This case, with respect to the claims presented by the plaintiff, be referred back to him for appropriate proceedings. Judge Coody said, "On or before February 2, 2021, the parties may file objections to this Recommendation. The parties must specifically identify the factual findings and legal conclusions contained in the Recommendation to which his objection is made. Frivolous, conclusive, or general objections will not be considered by the court. Failure to file written objections to the proposed factual findings and legal conclusions set forth in the Recommendations of the Magistrate Judge shall bar a party from a de novo determination by the District Court of these factual findings and legal conclusions and shall "waive the right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice." Mr. Jefferson S. Dunn is the Alabama Department of Corrections Commissioner. The Alabama Department of Corrections is the agency responsible for incarceration of convicted felons in the state of Alabama in the United States. It is headquartered in the Alabama Criminal Justice Center in Montgomery. A copy of the recommendation of the Magistrate Judge dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3qSB2nf at no extra charge.[CC] ALBERTSON'S INC: Or. App. Reverses Dismissal of Stewart UTPA Suit ----------------------------------------------------------------- In the case, Schearon STEWART and Jason Stewart, individually and on behalf of all similarly-situated persons, Plaintiffs-Appellants v. ALBERTSON'S, INC., Defendant, and ALBERTSON'S COMPANIES LLC, a foreign limited liability company; Albertson's LLC, a foreign corporation; and Safeway, Inc., a foreign business corporation, Defendants-Respondents, Case Nos. 16CV15125; A166857 (Or. App.), the Court of Appeals of Oregon reversed the trial court's order granting the Defendants' motion to dismiss, and remanded the limited judgment. The appeal presents questions of first impression concerning a class-action procedure unique to Oregon: the so-called "notice and cure" process under Oregon Rules of Civil Procedure 32 H and I. The Plaintiffs are consumers who purchased meat from the Defendants' supermarkets on a "buy one get one free" ("BOGO") basis. Plaintiff Schearon Stewart is an Oregon resident who shopped at a Safeway store in Sherwood, and Plaintiff Jason Stewart (no relation to Schearon) is an Oregon resident who shopped at a Safeway store in Tigard; both of them bought chicken shortly before filing the action. In early May 2016, the Plaintiffs filed a complaint, on behalf of themselves and all other similarly situated persons, alleging claims about meat-sale practices against Safeway. The Plaintiffs brought class-action claims for damages alleging that, during those promotions, the Defendants inflated the regular purchase price of the meat in order to pass along the cost of the supposedly "free" items to the consumers, thereby violating the Unlawful Trade Practices Act ("UTPA"). According to the Plaintiffs, the BOGO promotions violated ORS 646.608(1)(j) (providing that it is an unlawful practice to make "false or misleading representations of fact concerning the reasons for, existence of, or amounts of price reductions"), and ORS 646.608(1)(s) (providing that it is an unlawful trade practice to make "false or misleading representations of fact concerning the offering price of, or the person's cost for real estate, goods or services"). The Plaintiffs also alleged that the BOGO promotions violated OAR 137-020-0015, a rule promulgated by the Attorney General to implement ORS 646.608 that regulates the deceptive use of "free" offers. The Plaintiffs' complaint alleged a single claim for relief based on the alleged violations of ORS 646.608 and OAR 137-020-0015, and it included two counts within that claim. The first count alleged that Safeway had willfully violated ORS 646.608 through the BOGO promotions and that, as a result, the Plaintiffs and the members of the class suffered ascertainable losses, in that they paid more for meat, they did not receive free meat, and they bought more meat than they otherwise would have purchased without the deceptive designation of `free' product." The second count re-alleged previous allegations and further alleged that Safeway had engaged in the conduct in reckless disregard or with knowledge of the fact that that its practices violated ORS 646.608(1) and OAR 137-020-0015. Those additional allegations tracked ORS 646.638 (8)(a), which authorizes the recovery of statutory damages of $200 on behalf of class members only if the Plaintiffs in the action establish that the members have sustained an ascertainable loss of money or property as a result of a reckless or knowing use or employment by the defendant of a method, act or practice declared unlawful by ORS 646.608. In response, the Defendants conceded that they had inflated some prices during their promotions and offered a remedy as an alternative to litigation under ORCP 32 I. Their proposed remedy, however, calculated the class size and resulting damages differently from the Plaintiffs' allegations. Over the Plaintiffs' objection, the trial court agreed with the Defendants that the proposed remedy was "appropriate" within the meaning of ORCP 32 I, and it granted their motion to dismiss the damages claims. The Plaintiffs now appeal the limited judgment on those claims, arguing that (1) the Defendants' attempt to cure under ORCP 32 I was untimely because it occurred after the damages claims had been filed; (2) the trial court impermissibly engaged in judicial factfinding when considering the Defendants' motion; and (3) in any event, the limited damages offered by dthe efendants were not "appropriate" compensation within the meaning of that rule. The Court of Appeals finds that the Plaintiffs have not offered a persuasive argument to overcome the glaring textual omission of any requirement that the "showing" under ORCP 32 I be of a prelitigation offer or that the requirements set out in ORCP 32 I "exist" before the damages claims have been filed. It is not the Court's role to write into the rule what has been omitted. It therefore rejects the Plaintiffs' argument that the trial court was required to deny Safeway's motion to dismiss as untimely. The Court of Appeals then reviews the trial court's ultimate determination that a proposed cure provides the appropriate compensation, correction, or remedy for an abuse of discretion. With that understanding, it turns to the merits of the parties' dispute regarding the dismissal of the Plaintiffs' damages action. As described, the trail court granted the motion after determining that (1) Safeway's methodology for determining ascertainable loss was correct; (2) Safeway's exhibits reflected the correct "regular prices" for employing that methodology; and (3) statutory damages did not need to be included in order for the proposed cure to satisfy ORCP 32. The Appellate Court resolves the appeal by focusing on the trial court's third determination: that statutory damages could be omitted from the appropriate cure under ORCP 32 I. It concludes that the trial court's exercise of discretion with regard to that issue was contrary to the legal principles governing available remedies for the alleged wrong. The Court explains that history confirms what is evident from the text of ORS 646.638(8)(a): After its enactment in 2009, the recovery of statutory damages for a knowing or reckless violation of the UTPA is not a discretionary award. If the representative plaintiff proves that type of violation, the class members are entitled to the greater of actual damages or $200. The legislature viewed that type of wrong to be one that must be corrected with statutory damages on a class-wide basis, just as "willful" violations are compensated with statutory damages on an individual basis. Thus, the Appellate Court holds that ORS 646.638 reflects a legislative judgment about the minimum compensation that is appropriate for a knowing or reckless violation of the UTPA for the class members: It must include a $200 statutory penalty to adequately compensate for and deter the harm in small dollar cases. Safeway's cure, and the trial court's ruling, did not sufficiently account for that legislative judgment. Because Safeway's cure omitted the statutory damages the legislature has deemed necessary to compensate for a knowing or reckless violation of the UTPA, it was not within the range of appropriate remedies for that alleged wrong, and the trial court abused its discretion in concluding otherwise. The trial court therefore erred in granting the motion to dismis. In conclusion, the Court of Appeals holds that the trial court followed the correct procedure in the case: It considered the pleadings, took evidence on the nature and extent of the harm and Safeway's proposed cure, then made the determinations under ORCP 32 I. However, because the class members are legally entitled to statutory damages for knowing or reckless violations of the UTPA, the trial court erred in concluding that Safeway's cure was "appropriate" notwithstanding the absence of those damages. For these reasons, the Court of Appeals reversed and remanded the limited judgment. A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y4f3qtl2 from Leagle.com. Travis Eiva -- travis@eivalaw.com -- argued the cause for Appellants. Also on the briefs were David F. Sugarman -- david@sugermanlawoffice.com -- and Tim Quenelle -- tim.quenelle@gmail.com. Andrew Escobar -- andrew.escobar@dlapiper.com -- Washington, argued the cause for Respondents. Also on the brief were Austin Rainwater -- austin.rainwater@dlapiper.com -- and DLA Piper LLP, Washington. ALL AMERICAN: Faces Carter Suit Over Failure to Pay Overtime Wages ------------------------------------------------------------------ KEITH CARTER, individually and on behalf of all others similarly situated, Plaintiff v. ALL AMERICAN OILFIELD, LLC, Defendant, Case No. 3:21-cv-00007-JMK (D. Alaska, January 14, 2021) is a collective action complaint brought against the Defendant for its alleged violation of the Fair Labor Standards Act. The Plaintiff, who worked as a non-exempt employee for the Defendant, asserts that although he frequently worked in excess of 40 hours per workweek, the Defendant did not pay his lawfully earned overtime premium compensation for all hours he worked over 40 in a workweek at the applicable overtime rate in accordance with the FLSA. Additionally, the Defendant allegedly failed to maintain and preserve payroll records which accurately show the total hours worked by the Plaintiff and other similarly situated employees. The Plaintiff seeks all damages available for the Defendant's failure to timely pay all overtime wages owed, including back wages, liquidated damages, reasonable attorneys' fees and costs, and post-judgment interest, the suit says. All American Oilfield, LLC provides oilfield services. [BN] The Plaintiff is represented by: Daniel I. Pace, Esq. PACE LAW OFFICES 101 E 9th Ave., Ste 7A Anchorage, AK 99501 Tel: (907) 222-4003 Fax: (907) 222-4006 E-mail: dan@pacelawoffices.com AMAZON.COM INC: Sacks Sues Over Conspiracy to Raise eBooks' Prices ------------------------------------------------------------------ JORDAN SACKS, individually and on behalf of all others similarly situated, Plaintiff v. AMAZON.COM, INC., Defendant, Case No. 1:21-cv-00421 (S.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of Sections 1 and 2 of the Sherman Act. According to the complaint, the Defendant has conspired with five publishing companies by entering into anticompetitive agreements such as most favored nations (MFN) clauses to ensure that Amazon.com faces no competition in the U.S. retail market for trade electronic books (e-books). The Plaintiff alleges that Amazon and the publishers agreed to price restraints in e-books market that cause the Plaintiff and other consumers to pay supracompetitive prices for e-books purchased from the publishers through a retail platform other than Amazon.com. Moreover, via MFNs, Amazon has required, and publishers have agreed to grant Amazon, prices, terms, and conditions equal to or better than those offered to Amazon's competitors, and to notify Amazon about such terms, thereby restricting discounts to consumers, and stifling innovation in the trade e-book market. Had Amazon and its co-conspirators only raised prices on Amazon.com, consumers would be free to shop for lower-priced eBooks on other retailer sites, the suit says. Amazon.com, Inc. is an American multinational technology company based in Seattle, Washington. [BN] The Plaintiff is represented by: Linda P. Nussbaum, Esq. Bart D. Cohen, Esq. Louis Kessler, Esq. Marc Foto, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036 Telephone: (917) 438-9102 E-mail: lnussbaum@nussbaumpc.com bcohen@nussbaumpc.com lkessler@nussbaumpc.com mfoto@nussbaumpc.com - and – Michael E. Criden, Esq. Kevin B. Love, Esq. Lindsey C. Grossman, Esq. CRIDEN & LOVE, P.A. 7301 S.W. 57th Court, Suite 515 South Miami, FL 33143 Telephone: (305) 357-9000 E-mail: mcriden@cridenlove.com klove@cridenlove.com lgrossman@cridenlove.com APPLE INC: Extends MacBook Repair Program to Fix Stage Light Issues ------------------------------------------------------------------- Malcolm Owen, writing for Apple Insider, reports that Apple has updated its repair program for the 2016 13-inch MacBook Pro to fix the so-called "stage light" problem, increasing the eligibility from four years to five years after the first retail sale of the unit. Apple launched its 13-inch MacBook Pro Display Backlight Service Program in May 2019, enabling a small number of 2016 13-inch MacBook Pro users to fix an issue with the backlight of their devices. For some units, the backlight can exhibit a stage light-style effect, which the program offers to fix. The problem of bright and dark spots at the bottom of the screen was found to be due to Apple using fragile flex cables instead of wire cables, as used in earlier models, which wear down over time. This can cause parts of the backlight to stop showing, or break the backlight completely. The issue only affected a "very small percentage" of 2016 13-inch MacBook Pro units sold between October 2016 and February 2018, and not other models. Affected Macs are repaired by Apple or an Apple Authorized Service Provider free of charge, though if there are other detected faults that have to be repaired, the extra fixes are chargeable. Previously, Apple defined the program as being eligible for "four years after the first retail sale of the unit." In an update to the program page on January 15 spotted by MacRumors, Apple has changed the language to extend the period. The new terms state eligible models can be repaired up to "five years after the first retail sale of the unit or 3 years from the start date of this program, whichever is longer." As the program commenced on May 21, 2019, this means the affected MacBook units are eligible for the program until May 20, 2022, or at latest, February 2023. Apple is in the process of dealing with class-action complaints against the company over the issue. [GN] AUSTRALIAN INDIGENOUS: Retta Dixon Residents Unable to Move Claims ------------------------------------------------------------------ Oliver Gordon, writing for ABC News, reports that the organisation that operated the infamous Retta Dixon Home in Darwin, where multiple children were allegedly raped and abused between 1947 and 1980, will not be a part of the National Redress Scheme. Australian Indigenous Ministries (AIM), previously known as the Aborigines Inland Mission, ran the facility that housed mainly Aboriginal children, including many who identified as being part of the Stolen Generations. AIM tried to join the National Redress Scheme, but was deemed ineligible by the Department of Social Services. A spokesperson for the department told the ABC it prohibited AIM from joining the National Redress Scheme because it did not believe the organisation had enough money to adequately pay out potential claimants. "To join, under the National Redress Act institutions must be able to demonstrate their capacity to pay redress for current and any possible future applicants over the life of the scheme," a statement from the department read. "As AIM has taken necessary steps to join the scheme it will not, at this stage, be subject to financial consequences." Administrative limbo The news that AIM will not be required to participate in the National Redress Scheme has left a group of people who say they were abused at Retta Dixon unable to move their claims for redress forward. As AIM is not a participating institution, survivors cannot expect to receive any financial compensation from the organisation. Further, no "funder of last resort" has been identified, meaning neither the NT nor Federal Government have committed to picking up the tab for any redress payments that could be owed to former residents. Anna Swain, the acting principal lawyer at knowmore Legal Service, which has provided legal advice to 10 survivors of alleged sexual abuse at Retta Dixon, said the delay was devastating for the service's clients. "It's frustrating, it's disappointing, it feels as though they've been forgotten again," she said. The lawyer said the situation illustrated a flaw in the current structure of the scheme that needed to be urgently fixed. "The funder of last resort provision needs to be broadened so that in cases such as this, where an institution has tried to join the scheme but cannot because of their financial situation, state and commonwealth governments can step in and say, 'We'll pay for this,'" Ms Swain said. Class action In 2017 a landmark class action led to a settlement for 71 of the people who say they were abused or mistreated while at Retta Dixon. Stolen Generations NT chairperson Eileen Cummings says this went some way to healing the wounds of the past, but not everyone who was abused while at Retta Dixon was included in the settlement. In the years after the class action, when former Retta Dixon residents came to her saying they needed redress from their time in the home, Ms Cummings directed them to the National Redress Scheme. She said she was disappointed it had not delivered swift compensation, acknowledgement and justice. She urged the Commonwealth Government to quickly find a solution to the current problem. "The people that have put into the redress scheme are still suffering," she said. "We see them on a daily basis. "There are a lot of [Retta Dixon] children that are elderly, they've got chronic illnesses, and surely the Commonwealth can come to the party and try and help these people." AIM willing to apologise In a statement provided to the ABC, general director of Australian Indigenous Ministries (previously Aborigines Inland Mission) Cliff Letcher said his organisation did attempt to join the scheme. "We have indicated to the National Redress Scheme our desire to provide support for the survivors," the statement read. "They have indicated that, under their current regulations, if we cannot meet our financial obligations we cannot participate in any other way through the National Redress Scheme to support them." Mr Letcher offered an olive branch to former residents of Retta Dixon, whose allegations of mistreatment are from decades before he managed the organisation. "Should any of the survivors wish to contact us directly to be able to tell their story and receive an apology it is my belief that our organisation would be willing to undertake such a meeting," a statement read. Claims hanging in the balance For the former residents of Retta Dixon seeking compensation and acknowledgement under the National Redress Scheme, a wait that has gone on for decades continues. In a statement, a Department of Social Services spokesperson said the fate of National Redress Scheme applications relating to Retta Dixon Home would be discussed at an as-yet-unscheduled Ministers' Redress Scheme Governance Board Meeting in 2021. Ms Cummings hopes her message is heard loud and clear in any such discussion. "I want [the Commonwealth] to take responsibility, because they were the ones that removed the children in the first place," she said. [GN] BANK OF AMERICA: Faces Fraud Suit From EDD Debit Card Holders ------------------------------------------------------------- CARLOS RODRIGUEZ, on behalf of himself and a class of others similarly situated v. BANK OF AMERICA, N.A., Case No. 3:21-cv-00494-JCS (N.D. Cal., Jan. 20, 2021) asserts claims against Bank of America's alleged gross security failures and failure to address the criminal activity and provide proper debit card safeguards in connection with issued debit cards to Employment Development Department (EDD) benefit recipients. In the midst of the COVID-19 pandemic, millions of Californians were forced to survive on unemployment benefits provided by California's EDD through an exclusive contract with Bank of America. However, Bank of America provided Californians receiving benefits a debit card with security features so dated they were easily hacked by even the most unsophisticated thieves. Indeed, Bank of America forced the Plaintiff and the Class to use debit cards with "magnetic stripes," an obsolete technology that was phased out of normal debit cards many years ago for these well-known security reasons. Bank of America also failed properly monitor the Plaintiff's and the Class's EDD accounts for suspicious activity, seemingly ignoring the widespread fraud as it happened, says the complaint. The Plaintiff contends that Bank of America's lack of concern for the EDD customer demographic allowed criminals to syphon millions from those already struggling to put food on their tables. Bank of America then exacerbated the harm when it froze hundreds of thousands EDD accounts as a "too little, too late" measure to combat the fraudsters. In doing so, Bank of America also inhibited valid benefit recipients' access to the funds they needed to survive. To make matters even worse, Bank of America has not responded appropriately to the EDD fraud. Unlike regular Bank of America customers, account holders with EDD funds must interact with Bank of America representatives through a separate department. The EDD victims have reported spending hours on the phone waiting to speak with a Bank of America, the suit added. Mr. Rodriguez is a citizen and resident of the State of California. Rodriguez's job as a real estate agent slowed to almost a complete stop during the COVID-19 pandemic. Rodriguez applied for and received EDD unemployment benefits under the CARES Act. Rodriguez received a Bank of America EDD Visa debit card to access his benefits. His Bank of America EDD Visa debit card has a magnetic strip and no EMV chip. Rodriguez was the victim of unauthorized transactions that depleted a total of $1,130 from his EDD debit. Bank of America is a national bank with its headquarters and principal place of business in Charlotte, North Carolina. The Defendant conducts significant business in the State of California including administering unemployment benefits through its exclusive contract with the State of California's EDD.[BN] The Plaintiff is represented by: David. S. Casey, Jr., Esq. Gayle M. Blatt, Esq. Jeremy Robinson, Esq. P. Camille Guerra, Esq. Catherine M. McBain, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com gmb@cglaw.com jrobinson@cglaw.com camille@cglaw.com kmcbain@cglaw.com - and - Jean S. Martin, Esq. MORGAN & MORGAN 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jmartin@ForThePeople.com BANK OF AMERICA: Fails to Provide Account Info, Robinson Alleges ---------------------------------------------------------------- CORY ROBINSON, Individually and On Behalf of All Others Similarly Situated v. BANK OF AMERICA, N.A., Case No. 3:21-cv-00110-JM-RBB (S.D. Cal., Jan. 20, 2021) alleges that Bank of America has neglected to fulfill its duty to provide information available to it in the regular course of business to Plaintiff upon receipt of Plaintiff's Qualified Written Request (QWR) or Request for Information (RFI). As alleged in the complaint, BANA has demonstrated a "pattern or practice" of failing to adequately respond to borrowers' requests for account information, which makes BANA liable for statutory damages in an amount up to $2,000 for each failure to adequately respond. Notwithstanding this glaring failure to abide by its statutory duty, and despite the Plaintiff's informing BANA of its failure, BANA continues to incorrectly characterize the Plaintiff's and other borrowers' reasonable requests for account information as "overbroad and unduly burdensome," the suit says. On July 20, 2020, Mr. Robinson, through counsel, sent BANA a Notice of Error and Request for Information pursuant to RESPA. In this letter, the Plaintiff disputed the amount of the debt owed, and asked for several documents associated with his account, including: "A copy of any and all recordings of [Plaintiff] or any other person concerning [Plaintiff's] account." On August 13, 2020, the Plaintiff's counsel received a response to the request from BANA dated August 10, 2020. In its response, BANA failed to provide any of the requested information. The Defendant is a national bank with its headquarters located in Charlotte, North Carolina. BANA is the loan servicer for the Plaintiff's mortgage.[BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. Alan Gudino, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com alan@kazlg.com BANK OF AMERICA: Yick Sues Over Stolen Money From EDD Cardholders ----------------------------------------------------------------- JENNIFER YICK, on behalf of herself and all others similarly situated, Plaintiff v. BANK OF AMERICA, N.A., and DOES 1-20, inclusive, Defendants, Case No. 2:21-cv-00518 (C.D. Cal., January 19, 2021) is a class action against the Defendants for negligence, negligent performance of contract, negligent failure to warn, breach of contract, breach of implied contract, breach of the implied covenant of good faith and fair dealing, and breach of contract, and violations of the California Consumer Privacy Act, the California Unfair Competition Law, and the Electronic Funds Transfer Act. The case arises from the Defendants' failure to safeguard unemployment insurance and other benefits issued by the California Employment Development Department (EDD) from fraudulent activities. The Plaintiff and Class members are EDD cardholders whose money in their Bank of America EDD accounts was suddenly gone and the bank has failed to assist them or even communicate to them about how the incident happened and when they can get their money back. The failure of the Defendants to act according to industry security standards by securing the private financial information of EDD cardholders and accounts, and by issuing EDD cards with EMV chips has resulted in significant harm to recipients of EDD benefits, depriving them of their financial lifeline in the midst of a pandemic and full-blown economic crisis, the suit says. Bank of America, N.A. is a banking company with its principal place of business in Charlotte, North Carolina. [BN] The Plaintiff is represented by: Brian Danitz, Esq. Noorjahan Rahman, Esq. Andrew F. Kirtley, Esq. Julia Q. Peng, Esq. COTCHETT, PITRE & McCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 E-mail: bdanitz@cpmlegal.com nrahman@cpmlegal.com akirtley@cpmlegal.com jpeng@cpmlegal.com BAYLOR SCOTT: Court Allows FLSA Class Action Lawsuit to Proceed --------------------------------------------------------------- Will Maddox, writing for D Magazine, reports that the federal court in the Northern District of Texas has granted conditional certification to the plaintiffs against Baylor Scott & White Health, where they allege that their employer docked their pay unfairly. The certification will allow the plaintiff's lawyers to send notice to all qualifying BSW employees to see if they would like to join the lawsuit with the original 18 plaintiffs. The plaintiffs are a group of advanced practitioners (i.e., nurse practitioner or physician's assistant) who say that they were docked pay by BSW and HeathTexas Provider Network when they didn't work 40 hours in a week, even though they were salaried employees who weren't paid by the hour. When these employees worked more than 40 hours per week, they were not given overtime pay as one would receive if they were hourly employees. From the plaintiff's perspective, the hospital system treated these employees like hourly workers only when it benefitted the system, and are seeking damages under the Fair Labor Standards Act. The 18 plaintiffs are seeking around 1.9 million in damages for lost salary over two to three years. They allege that if they are hourly employees, they should be able to charge for duties done at home, such as answering work emails and texts, finishing notes, or other work they did at home. The court's ruling allows the case to have class-action status, meaning hundreds of BSW practitioners can be contacted and opt into the suit if they experienced similar deductions. Plaintiffs come from a variety of BSW facilities, such as Baylor University Medical Center in Dallas. Baylor Scott & White is the largest nonprofit health system in the state and one of the largest in the country. The original suit says that Baylor attempted to make corrective payments and said they were accounting mistakes. Plaintiffs claim the errors were not an accounting mistake but are part of the policy and practice for BSW. FLSA allows employers to make corrective payments for good-faith mistakes, not policy decisions, so plaintiffs argue that BSW's payments are not viable. Employees who met the qualifications and worked for the defendants after April 6, 2017, can opt into the lawsuit, the court filing says. Baylor Scott & White Health did not comment as the suit is ongoing. [GN] BEYER & ASSOCIATES: Court Junks Rodriguez Class Action ------------------------------------------------------- In the class action lawsuit captioned as MELINDA RODRIGUEZ, v. BEYER & ASSOCIATES LLC and PARKING REVENUE RECOVERY SERVICES INC., Case No. 19-C-1677 (E.D. Wisc.), the Hon. Judge William C. Griesbach entered an order: 1. granting the Defendants Beyer & Associates LLC's motion to dismiss and Parking Revenue Recovery Services Inc.'s motion to dismiss; 2. denying as moot the Plaintiff's motion to certify the class and motion to compel discovery; 3. dismissing the case. The Court said, "The Plaintiff's second amended complaint does not allege that the claimed statutory violations harmed her in any way or created any appreciable risk of harm to her. Although the Plaintiff alleges that she was confused because the letter did not clearly identify the creditor. The Plaintiff's second amended complaint contains no allegation that the letter "detrimentally affected" the handling of her debts. She does not allege that she attempted to clarify her confusion, make a payment, or otherwise manage the debt. The Plaintiff has failed to allege that she suffered an injury from the claimed FDCPA violations necessary for standing. Therefore, this case must be dismissed for lack of standing." The Plaintiff is a Wisconsin resident. PRRS collects and attempts to collect consumer parking debts incurred or alleged to have been incurred on behalf of third parties. Beyer regularly engages in the collection of defaulted consumer debts alleged to be owed to others. The Plaintiff received a letter dated August 30, 2019, from Beyer & Associates stating that Plaintiff incurred and defaulted on a financial obligation to an unknown parking lot owner. The Plaintiff alleges that using the letter in an attempt to collect the debt violated the Fair Debt Collection Practices Act (FDCPA) because it contained a false, deceptive, or misleading representation in violation of 15 U.S.C. section 1692e. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at http://bit.ly/2YkpahDat no extra charge.[CC] BIT DIGITAL: Faces Pauwels Securities Suit Over Stock Price Drop ---------------------------------------------------------------- ANTHONY PAUWELS, Individually and On Behalf of All Others Similarly Situated v. BIT DIGITAL, INC., MIN HU, and ERKE HUANG, Case No. 1:21-cv-00515 (S.D.N.Y., Jan. 20, 2021) is a class action on behalf of persons and entities that purchased or otherwise acquired Bit Digital securities between December 21, 2020 and January 8, 2021, pursuing claims against the Defendants under the Securities Exchange Act of 1934. On January 11, 2021, J Capital Research issued a research report alleging that Bit Digital operates "a fake crypto currency business" "designed to steal funds from investors." Though the Company claims "it was operating 22,869 bitcoin miners in China," J Capital alleged that "is simply not possible" and stated that "we verified with local governments supposedly hosting the BTBT mining operation that there are no bitcoin miners there." On this news, Bit Digital's stock price fell $6.27 per share, or 25%, to close at $18.76 per share on January 11, 2021, on unusually heavy trading volume, the suit says. The Plaintiff contends that throughout the Class Period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects including failure to disclose to investors that Bit Digital overstated the extent of its a bitcoin mining operation. As a result of the Defendants' alleged wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Mr. Pauwels purchased Bit Digital securities during the Class Period, and suffered damages as a result of the alleged federal securities law violations and false and/or misleading statements and/or material omissions. Bit Digital is a holding company that purports to engage in the bitcoin mining business through its wholly owned subsidiaries in U.S. and Hong Kong. The Individual Defendants are officers of the Company.[BN] The Plaintiff is represented by: Gregory B. Linkh, Esq. LANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: glinkh@glancylaw.com - and - Robert V. Prongay, Esq. Charles H. Linehan 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: info@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 BLUE CROSS: 6th Cir. Affirms Fairness of Class Settlement in Shane ------------------------------------------------------------------ The United States Court of Appeals for the Sixth Circuit affirms the district court's finding that the class action settlement agreement fair, reasonable and adequate in the lawsuit captioned SHANE GROUP INC., et al., Plaintiffs-Appellees v. BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendant-Appellee, CHRISTOPHER ANDREWS, Objector-Appellant, Case No. 19-2260 (6th Cir.). Objector-Appellant Andrews objects to a class-action settlement agreement and appeals the district court's finding that the agreement was "fair, reasonable, and adequate" under the Rule 23(e)(2) of the Federal Rules of Civil Procedure. The Appellate Court rejects Mr. Andrews' arguments and affirms the ruling. The lawsuit is a class action in which the Plaintiffs alleged that Blue Cross had engaged in an extensive price-fixing scheme. A proposed settlement first came to the Appellate Court in 2016, when the Appellate Court held that the district court had abused its discretion when it sealed various filings and records. The Appellate Court, therefore, vacated the district court's approval of the original settlement and instructed it to "begin the Rule 23(e) process anew." On remand, the district court eventually approved a new settlement agreement in 2019. The agreement provides for a total settlement fund of $29.99 million. That amount, after deductions for fees and expenses, would leave about $16 million for payments to class members, whose damages were allegedly about $50 million (after deducting $58 million in alleged damages for a single class member that opted out). Mr. Andrews himself (proceeding pro se) is a serial objector, who in the case unsuccessfully sought a $150,000 payoff to drop his objections. He is now the sole remaining objector. The Appellate Court reviews the approval of a settlement agreement for an abuse of discretion. In re Dry Max Pampers Litig., 724 F.3d 713, 717 (6th Cir. 2013). Mr. Andrews raises a raft of objections, many of them undeveloped, all of them meritless. His argument that the district court judge should have recused herself is waived (in addition to being undeveloped), since Andrews did not make that argument in the district court. He argues that the named plaintiffs lacked standing to assert their claims, but does not explain why. He also argues that the distribution of any leftover funds to Free Clinics of Michigan would be a kickback for Blue Cross. But the two entities are not legally related, and Andrews's argument is otherwise conclusory. Mr. Andrews also argues that payment of so-called "service awards" to certain named plaintiffs amounted to a bounty. On this record, however, those payments correlate to the substantial amount of time that the named plaintiffs actually spent producing documents and otherwise advancing the litigation of the case. Andrews further argues that the named plaintiffs and class counsel were "inadequate" representatives of the class. But that argument too is conclusory, and is undermined by the substantial recovery (32% of alleged damages, after deductions for fees and expenses) for unnamed class members. Andrews' remaining objections are likewise undeveloped and are, therefore, forfeited. The district court's judgment is affirmed. A full-text copy of the Court's Opinion dated Jan. 14, 2021, is available at https://tinyurl.com/y6tu5qr9 from Leagle.com. BROADWAY ADVANCE: Fabricant Sues Over Unsolicited Telephone Calls ----------------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. BROADWAY ADVANCE, LLC, and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:21-cv-00352 (C.D. Cal., January 14, 2021) is a class action complaint brought against the Defendant for its alleged negligent and willful violations of the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendant placed calls on his cellular telephone number beginning in or around November 2017 in an attempt to promote its services. The Defendant purportedly used an "automatic telephone dialing system" (ATDS) in placing its calls, and did not obtain the Plaintiff's "prior express consent" to receive such calls using an ATDS or an artificial or prerecorded voice on his cellular telephone number ending in -1083, which was added on the National Do-Not-Call Registry on or about June 4, 2008. As a result of the Defendant's unlawful conduct, the Plaintiff and members of the ATDS Class were harmed by causing them to incur certain charges or reduced telephone time for which they had previously paid, and invading their privacy. The Plaintiff seeks an injunctive relief prohibiting such conduct in the future, as well as statutory damages, and any relief that the Court deems just and proper. Broadway Advance, LLC is a financial services firm. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (323) 306-4234 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com BT GROUP: Chief Exec Has to Repel Move to Introduce UK Class Suit ----------------------------------------------------------------- Bryce Elder, writing for Financial Times, reports that Philip Jansen probably had enough going on already. On top of the auctions for 5G spectrum and English Premiership rights due this quarter, as well as the pension fund and wholesale market reviews due before summer, the BT chief executive now has to repel an attempt to introduce class actions to the UK courts. Justin Le Patourel, a former consultant at regulator Ofcom, said BT has failed to compensate 2.3m customers for overcharging on line rental. His case stems from BT's agreement in 2017 to cut the price of its landline-only package by £7 a month, Ofcom having found that the telecoms incumbent had delivered years of poor value for money to some typically elderly and vulnerable customers. The threatened action would follow roughly the same shape as a test case against Mastercard, which is being pursued for damages on behalf of 46m credit and debit card holders. The Consumer Rights Act 2015 had made these opt-out class actions possible for competition issues but progress since has been glacial. The only ones compensated so far have been lawyers. A Supreme Court ruling against Mastercard in December might unblock the case pipeline, in effect by deciding that the Competition Appeal Tribunal had become an obstacle by setting the evidence bar to trial too high. But the complications of that case -- including the death of one judge during the case and a 2-2 split decision between the remaining justices who then agreed to reject Mastercard's appeal because a re-hearing would be too expensive -- suggest it is too early to talk about precedent. The case against BT looks more simple, yet it is still far from straightforward. BT's landline-only customers were collateral damage in last decade's broadband price war. Line rental costs jumped as operators rejigged pricing bundles to reflect falling voice use and a shift to flat pricing for unlimited calls. And while market dominance forced BT into being the market's last-man-standing for landline connections, Ofcom found that the company exploited its position as price setter from 2013 onwards. Discounts on offer (BT's defence against the legal claims on Jan. 18) were designed to pacify the few that complained from defecting rather than to protect vulnerable groups. Where Ofcom failed was to secure any binding remedy. Its final report found no clear breaches of competition law and made no explicit references to excessive pricing. Everything was voluntary. So, while the fight for compensation is likely to be little more than another long and convoluted distraction for BT management, broader fears of a US-style ambulance-chasing legal culture to the UK still seem largely theoretical. Virtuous Circle Covid-19 may have led to plenty of sleepless nights for Britain's small business owners. But it has been rather less stressful for some of the companies that lend them money, writes Jonathan Ford. Take, for instance, Funding Circle, which has just issued its trading update for 2020. A year ago, this online peer-to-peer lender to SMEs was visibly struggling. Concerned by a weakening credit environment, it had slowed down loan originations, imperilling its "fintech" style growth story. The shares fell as low as 44p -- 90 per cent below the 2018 float price of 440p. Covid-19 has now delivered a salutary shot in the arm to the business. Demand for government backed business interruption loans -- dubbed "CBILS" -- have more than immunised it against the force of the pandemic. Demand rose last year, with originations up 17 per cent to £2.7bn and by an even more impressive 41 per cent in the second half. What's more, much of the income came in like clockwork. The fees Funding Circle receives for new UK lending have been obligingly paid by the government, as well as the first year of interest payments. The state even picks up 80 per cent of the losses on any defaults. Funding Circle has shown it can lend money in the teeth of a public health crisis. The bigger question is whether it will still have such a vibrant business when the rest of us get a shot in the arm. First there is the question of how demand will evolve when the government pulls back on its support. CBILS is likely to continue until the end of the first quarter. Beyond that, it is less certain. It is a similar story with the US version, the Paycheck Protection Program. Funding Circle argues that government support is not the be all and end all. The pandemic has converted more businesses to the joys of online lending, with its quick decision turnround. The biggest question though is about the lending side. With CBILS now the only show in town, government rules have forced Funding Circle to switch off the retail side of the lending operation — historically about a fifth of the total. That has turned it into a wholly institutional business. It is one thing picking up 9 per cent on loans 80 per cent backed by the government. But as support tapers off it will be a different story. If the history of institutionally-dependent finance companies teaches anything, it is that those backers can get flighty if the going gets tough. Funding Circle's share price has more than doubled from its nadir in March last year. Lockdown has been kind. Further progress will depend on what happens when the shutters come back up. [GN] BT GROUP: Taps Simmons & Simmons to Assist in Consumer Class Suit ----------------------------------------------------------------- Simon Lock, writing for Law.com, reports that telecoms giant BT has called in Simmons & Simmons to assist in a major dispute, after Mishcon de Reya filed a multi-million pound claim accusing the company of overcharging customers. A claim worth 600 million pounds has been filed against the telecoms giant, alleging it overcharged customers. [GN] CD PROJEKT: New Details Emerge on Mishandling of Cyberpunk 2077 --------------------------------------------------------------- Tyler Haughn, writing for Screen Rant, reports that new details have emerged that shed light on CD Projekt Red's mishandling of Cyberpunk 2077, including the alleged facts that it was originally a third-person game like The Witcher 3 and its police system wasn't added until the final stretch of development. Since launch, Cyberpunk 2077 has been widely criticized for game-breaking bugs, poor frame rates, graphical issues, and unpredictable crashes on last-gen consoles. The controversy surrounding the game prompted Cyberpunk 2077 to be removed from the PlayStation Store, and many players have reached out through various avenues to secure refunds. There has been no shortage of criticism aimed at CD Projekt Red, with staff offering insights into the crunch work culture they made the game under and more. Some CDPR devs have even gone so far as to suggest that publisher CD Projekt intentionally deceived customers and investors about the game's level of preparedness. The polish studio must now defend itself against multiple class-action lawsuits that are being pursued by CD Projekt shareholders. In a series of tweets based on CDPR developer testimony, Jason Schreier revealed that the Grand Theft Auto-like wanted system was introduced to the game at the last-minute, explaining why interactions with the NCPD feels incomplete and at odds with the rest of the game. In what is probably the most surprising discovery, staff insights also revealed that Cyberpunk 2077 was originally a third-person game until 2016, much like The Witcher series that put CDPR on the map. These revelations are just the tip of the iceberg in a long list of frustrations that developers have dealt with internally for years, and it's now all boiling over as a damning report on Cyberpunk 2077's development has emerged. To its credit, CD Projekt Red has publicly acknowledged its failure to release a fully prepared game and clearly understands why consumers are so upset with the game's abysmal performance, especially on consoles. Despite all of the issues that continue to mount, there is light at the end of the tunnel for now, at least. Cyberpunk 2077 received its last big patch in late December and two more are planned, and a newly released roadmap (while vague in terms of timing) seems to promise a functional game by the end of the year. CD Projekt Red has a long way to go if it ever hopes to inspire consumer and shareholder confidence again. In order to do achieve that ultimate goal, the studio will need to be much more transparent in all its future Cyberpunk 2077 updates and improvements continue to be applied, as the developer and publisher CD Projekt's lack of transparency and planning is what it got them to this critical point. [GN] CD PROJEKT: Responds to Second Cyberpunk 2077 Class Action Suit --------------------------------------------------------------- PCGames reports that the studio behind Cyberpunk 2077 faces another class action lawsuit from investors (thanks, The Loadout). CD Projekt explains on its investor relations website that the second civil class action lawsuit has been filed in the United States District Court for the Central District of California by a law firm acting on the investors' behalf. The claim is reportedly the same as the first lawsuit, which means it's arguing that investors are owed damages as they were misled over the state of the cyberpunk game prior to its launch. CD Projekt says it'll "undertake vigorous action to defend itself" against it. The initial lawsuit CDP refers to was filed back in December, with a press release from Rosen Law Firm stating that the lawsuit claims CD Projekt "failed to disclose that Cyberpunk 2077 was virtually unplayable on the current-generation Xbox or Playstation systems due to an enormous number of bugs". As a result, Sony removed Cyberpunk 2077 from the Playstation Store, and the company, alongside Microsoft and CD Projekt, "would be forced" into issuing refunds. The press release then reads: "CD Projekt would suffer reputational and pecuniary harm; and as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times". Because of all this, the lawsuit claims that the investors suffered damages when Cyberpunk 2077 launched and the "true details entered the market". Again, CD Projekt Red acknowledged this first lawsuit on its investor relations website, issuing the same response as it would to the second lawsuit: it would "undertake vigorous action" to defend itself. [GN] CD PROJEKT: To Vigorously Defend Cyberpunk 2077 Class Action Suit ----------------------------------------------------------------- Jahan Patel, writing for Digi Statement, reports that the Cyberpunk soap opera is renewed for a new season in 2021, and the pilot is very promising. On the program: a still buggy game, grumpy investors and CD Projekt's response to the lawsuits looming. We told you about it a few days before the end of the holiday season, CD Projekt must now face hordes of angry investors, determined to make them pay the Cyberpunk 2077 affront on Xbox One and PS4 fat. According to Rosen Law Firm, specializing in investor rights, the game would be virtually unplayable on the aforementioned media, the fault of an improbable number of bugs and other technical problems. A complaint followed by other firms, all this adding to the long list of repercussions of the chaotic launch of the futuristic RPG. However, the Polish studio intends to defend itself against these accusations, supported by the outright withdrawal of the game from the Playstation Store, pending the famous optimization patches: in a statement in response to the legal attacks targeting CP2077, CD Projekt indicates that 'he will put in place "a vigorous defence against the facts with which they are accused". As for the situation of the game at the time of this writing: the game is in version 1.06, but most of the work remains to be done. The updates supposed to stabilize the grinds should, as a reminder, arrive as early as this month, with a second essential patch next month. The situation seems to be getting worse & worse for CD Projekt. Despite the games great playing numbers and sells, what will be the future of this futuristic RPG game is yet to be seen. [GN] CHARTER COMM: Gennarelli Has Until May 14 to File Class Status Bid ------------------------------------------------------------------ In the class action lawsuit captioned as MICHAEL GENNARELLI, on behalf of himself and those similarly situated, v. CHARTER COMMUNICATIONS, INC., a Delaware corporation, and DOES 1 through 50, inclusive, Case No. 2:19-cv-09635-JLS-ADS (C.D. Cal.), the Hon. Judge Josephine L. Staton entered an order approving the Joint Stipulation to Extend Motion for Class Certification Briefing Schedule and good cause appearing, as follows: 1. Last Day to File Motion for Class May 14, 2021 Certification: 2. Last Day to File Class Certification June 25, 2021 Opposition: 3. Last Day to File Reply to July 23, 2021 Defendant's Opposition: Charter Communications is an American telecommunications and mass media company with services branded as Charter Spectrum. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/2Y7fxCP at no extra charge.[CC] CHICAGO, IL: Challenges Predatory Towing Class Action Lawsuit ------------------------------------------------------------- Tyson Fisher, writing for Land Line, reports that the class action status of a predatory towing lawsuit against the city of Chicago is being challenged, another delay for the complaint that was filed in 2019. In December, the city of Chicago's petition for appeal was granted by the Seventh Circuit Court of Appeals. The city is challenging the class action status of a group of motorists claiming the city practiced predatory towing. A federal district court had granted class action status for two groups in November. The city first questions whether the plaintiff is actually challenging the constitutionality of the state statute. Rather, the city argues, the lawsuit questions the notification process of the towing statute. Therefore, the complaint has no place in federal court. Second, the city is challenging the district court's ruling that individual circumstances within the class are irrelevant in the predatory towing lawsuit. The city of Chicago cites case law where class status was denied based on individual issues overriding common issues. Although the appeal is pending, the district court has hit the pause button on discovery for the class groups. The city of Chicago argues that if discovery were to continue, it "would lead to confusion among the public should the certification order be reversed, vacated or modified." "Any such confusion will undoubtedly be attributed to the city and require the city to spend time and resources fielding complaints and responding to claims based upon this confusion," attorneys for Chicago state in the motion to stay discovery. "Until there is certainty regarding the certification order, the public and class members should not be notified." Also, the city argues that responding to discovery requests regarding predatory towing will require substantial time and expenses. Those resources will be an unnecessarily lost if the Seventh Circuit just partially rules in the city's favor. Furthermore, since injunctive relief was denied, there is no harm in delaying discovery while both parties await a definitive ruling on class certification. The predatory towing lawsuit was filed in July 2019 by Andrea Santiago, a senior citizen with multiple sclerosis who is confined to a wheelchair. Santiago accuses the city of towing her car and eventually selling it for scrap without giving her due process. Santiago owned a van that was regularly parked on the side of the street for easy access. In June 2018, the van was towed and impounded. The complaint claims that Santiago never received a notice by mail warning her, calling the action "towing without telling." The city claims it mailed a post-tow notice of vehicle impoundment on June 15, 2018. Meanwhile, storage fees were accumulating as Santiago's daughter attempted to retrieve the van. The lawsuit alleges that the city never mailed an additional notice of impending vehicle disposal. Such notice is required under state statute. The city sold the van to the towing company, United Road Towing, before Santiago's daughter was able to locate it. That company then sold it for scrap to a salvage yard. Santiago never received any of the proceeds from the van's sale, which also is required by state law. In 2005, Illinois amended the state's vehicle code to address predatory towing. Cities with a population of more than 500,000 people are required to notify motorists that their vehicle has been towed. Santiago's lawsuit claims Chicago never amended its code to reflect those changes. For more details about the lawsuit and the 2005 predatory towing legislation, click https://bit.ly/2M4E0WJ. The Owner-Operator Independent Drivers Association has a history of battling predatory towing within the trucking industry. Mike Matousek, OOIDA manager of government affairs, has been in the trenches in the fight against predatory towing. "While the definition of 'predatory towing' might vary a bit for cars and trucks, there's no question commercial motor vehicles are targeted by unscrupulous towing operators," Matousek told Land Line. "We see it all over the country on a regular basis, which includes predatory booting schemes, legally questionable drive-away tows, and other forms of nonconsensual towing. The Chicago Police Department appears to be going after some of these crooked operators, but more can and must be done - not only in Chicago, but all across the country." LL [GN] CISION US: Mikityuk Class Suit Seeks Unpaid OT Under FLSA & NYLL ---------------------------------------------------------------- ANATOLIY MIKITYUK, MITCH TALLUNGAN, and MICHAEL ESQUIBEL, individually and on behalf of all others similarly situated, v. CISION US INC. and CISION LTD., Case No. 1:21-cv-00510 (S.D.N.Y., Jan. 20, 2021), seeks to recover unpaid overtime compensation and other damages for the Plaintiffs and similarly situated individuals who have worked for the Defendants as sales representatives. The Plaintiffs contend that Cision requires sales representatives to work long hours, often in excess of 40 hours per workweek, in order to complete required tasks. While employed by Cision, they consistently worked more than 40 hours per workweek without receiving overtime compensation for all the hours they worked, the Plaintiffs add. The Plaintiffs bring this action on behalf of themselves and similarly situated employees as a collective action under the Fair Labor Standards Act and the New York Labor Law. Cision employs sales representatives to sell its products and services. Sales Representatives perform non-exempt sales-related tasks, including communicating with clients and potential clients via phone and email, researching sales leads, booking sales meetings with prospective clients, and/or makings sales of Cision's products to current and/or prospective clients Cision is a public relations software and services provider. Cision sells software products that identify influencers, create and distribute content, and measure the impact of communications. Cision sells several software products and/or services, including Bulletin Intelligence, PR Newswire, and Falcon.io, among others.[BN] The Plaintiffs are represented by: Melissa L. Stewart, Esq. Eliana J. Theodorou, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 - and - Hannah Cole-Chu, Esq. 601 Massachusetts Avenue NW, Suite 200W Washington, D.C. 20001 Telephone: (202) 847-4400 Facsimile: (202) 847-4010 COGNIZANT TECHNOLOGY: Settlement in Mishra Suit Gets Final Approval ------------------------------------------------------------------- In the case, DEBI MISHRA, individually and on behalf of all those similarly situated, Real Party in Interest v. COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION, COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION, and DOES 1 through 10, inclusive, Defendants, Case No. 2:17-cv-01785-TLN-JDP (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California granted the Plaintiff's Motion for Final Approval of Class Action Settlement, and the Class Counsel's requests for Fee and Expense Awards. The matter was before the Court on Nov. 12, 2020. Judge Nunley has carefully considered the briefs, arguments of counsel, and all matters presented to the Court. Accordingly, he approves the settlement terms set forth in the Settlement Agreement and finds that the Settlement is, in all respects, fair, adequate and reasonable, and further finds that the Plaintiff has satisfied the standards and applicable requirements for final approval of the class action settlement under Rule 23 of the Federal Rules of Civil Procedure and 29 U.S.C. Section 216. The Judge grants final certification approval, for settlement purposes, to the Classes, consisting of: a. California Class: All current and former employees of Defendants who were eligible to receive Tru Up payments while employed in California at any time during the California Class Period. b. FLSA Class: All current and former employees of Defendants who were eligible to receive Tru Up payments at any time during the FLSA Class Period who have opted into this litigation pursuant to the Settlement Agreement. All members of the FLSA Class are identified on Schedule A to this Order. The Judge finds the Individual Settlement Payments provided for under the Settlement to be fair and reasonable in light of all the circumstances. He, therefore, orders the calculations and the payments to be made and administered in accordance with the terms of the Settlement. For the reasons set forth in the current Motion for Final Approval of Class Action Settlement (including the Class Counsel's request for a Fee and Expense Award), the Class Counsel's requests for a Fee Award in the amount of $1,431,500, and reasonable actual expenses $24,040, as the Expense Award, are granted pursuant to California law because the Class Counsel's requests fall within the range of reasonableness, the result achieved justified the award, and the expenses were reasonably incurred. For the reasons set forth in the current Motion for Final Approval of Class Action Settlement, the Plaintiff's request for Enhancement Payment in the amount of $10,000 granted. The request for Administration Costs in the amount of $28,816.20 is also granted and will be paid to the Settlement Administrator, ILYM Group, Inc., pursuant to the terms of the Settlement Agreement. No other costs, fees or other relief will be awarded, either against the Defendants or related persons or entities, as defined in the Settlement Agreement, or from the award to the Settlement Class Members. Pursuant to the terms of the Settlement Agreement, the Judge dismissed instant action with prejudice. Judgment is entered in accordance with the findings in the Order. The Judgment is the Final Judgment in the suit as to all the Settlement Class Members. The Judge finds no just reason for delay and expressly directs the Clerk of the Court to enter Judgment immediately. A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y6leabjj from Leagle.com. CONGRESSIONAL BANK: Bid to Certify Appeal in Esktrom Suit Denied ---------------------------------------------------------------- In the case, TIMOTHY EKSTROM, et al., Plaintiffs v. CONGRESSIONAL BANK, SUCCESSOR-BY-MERGER TO AMERICAN BANK, Defendant, Case No. ELH-20-1501 (D. Md.), Judge Ellen Lipton Hollander of the U.S. District Court for the District of Maryland denies Congressional's Motion to Certify Discretionary Appeal and to Stay Litigation. The putative class action concerns an alleged kickback scheme between American Bank and All Star Title, Inc., a Maryland based title and settlement services company. Plaintiffs Ekstrom and Davida Carnahan, who are mortgagors, have sued Congressional, American Bank's successor-by-merger in a suit consisting of more than 50 pages with 24 exhibits. The Plaintiffs allege that the kickback scheme violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. Section 2601, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1962. Congressional moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b). It argued that the Plaintiffs' claims are time-barred because the alleged violations occurred in 2010, and the Plaintiffs did not set forth facts sufficient to toll the statute of limitations under a theory of fraudulent concealment. Further, the Defendant urged dismissal of the Plaintiffs' RICO claim, arguing that they did not allege a RICO enterprise, a pattern of racketeering, or a proximate injury. By Memorandum Opinion and Order of Nov. 9, 2020, Judge Hollander denied the Defendant's motion to dismiss. She determined that the Defendant was not entitled to dismissal based on limitations because the Plaintiffs set forth sufficient allegations of fraudulent concealment and equitable tolling. In addition, she concluded that the Plaintiffs adequately stated a RICO claim. Thereafter, Congressional filed a Motion to Certify Discretionary Appeal and to Stay Litigation, pursuant to 28 U.S.C. Section 1292(b). The Motion is supported by a memorandum of law. In seeking an interlocutory appeal, Congressional argues that there are four controlling questions of law at issue, for which there is substantial ground for difference of opinion. Specifically, Congressional requests certification of the following: (1) whether the Plaintiffs' conceded knowledge of the allegedly excessive price precludes them from relying on fraudulent concealment tolling; (2) whether nondisclosure of a kickback scheme constitutes fraudulent concealment if there is no independent legal duty to disclose; (3) if the Plaintiffs' alleged bilateral conspiracy constitutes a RICO enterprise; and (4) whether the Plaintiffs alleged a causal relationship between the fraudulent scheme and the Plaintiffs' damages. In Congressional's view, an immediate appeal may materially advance the ultimate termination of the litigation. And, it argues that it only needs to demonstrate that a substantial ground for difference of opinion exists as to one of these issues, because they are all controlling questions of law that will materially advance the ultimate termination of the litigation. In opposing the Defendant's Motion, the Plaintiffs contend that, as to the four issues, none satisfies all three prongs of Section 1292(b). Judge Hollander agrees. In her view, all four issues satisfy the material advancement prong of Section 1292(b) because reversal by the Fourth Circuit on any one of the issues would resolve at least one or both of the Plaintiffs' claims. And, because the case is still in an early phase of litigation and substantive discovery has not yet occurred, an immediate appeal would materially advance the termination of litigation. However, the Judge finds that the Defendant has not satisfied the remaining prongs of Section 1292(b) or demonstrated that there are "exceptional circumstances" that justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. The Defendant raises two issues in relation to limitations and tolling based on fraudulent concealment. As to the first issue, Congressional avers that the question of whether the Plaintiffs' knowledge of the allegedly excessive price for settlement services placed them on inquiry notice of the kickback scheme is a controlling question of law that involves substantial ground for difference of opinion as a result of two recent Fourth Circuit rulings--Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 256 (4th Cir. 2020), and Edmonson v. Eagle Nat'l Bank, 922 F.3d 535 (4th Cir. 2019). Congressional also asserts that the question of whether "mere nondisclosure of an alleged kickback scheme constitutes fraudulent concealment" is a controlling question of law, citing Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 218-19 (4th Cir. 1987), to support its claim that there are substantial grounds for a difference of opinion. Under these circumstances, the Judge opines that the Defendant has not shown that there is a controlling question of law as to which there is substantial ground for difference of opinion. In Baehr, the Fourth Circuit concluded that the deprivation of impartial and fair competition between settlement services providers--untethered from any evidence that the deprivation thereof increased settlement costs--is not a concrete injury under RESPA. In addition, the suggestion from Pocahontas Supreme Coal that silence or nondisclosure are insufficient to plead fraudulent concealment is immaterial in the case and does not create a substantial ground for difference of opinion. The Defendant also contends that there are two questions of law with respect to the Plaintiffs' RICO claim that are subject to interlocutory appeal. First, the Defendant requests certification on the question of whether the Plaintiffs' alleged bilateral conspiracy constitutes a RICO enterprise. Second, it assets that the question of whether the Plaintiffs plausibly allege that a RICO violation proximately caused their injuries is dispositive of their RICO claims, and there are substantial grounds for difference of opinion. In the Judge's view, the Defendant fails to establish that either of these issues involves a controlling question of law or substantial grounds for difference of opinion. She notes that the Defendant's disagreement with the Court's ruling is not enough to find a controlling question of law or a substantial difference of opinion as to either of the Defendant's RICO-related questions. For the reasons she set forth, Judge Hollander denies the Defendant's Motion. An Order follows. A full-text copy of the Court's Jan. 13, 2021 Memorandum Opinion is available at https://tinyurl.com/yx8nswjm from Leagle.com. CONNECTICUT: Rogers Prisoner Suit Dismissed Without Prejudice ------------------------------------------------------------- In the case, RODERICK ROGERS, Plaintiff v. SCOTT SEMPLE, et al., Defendants, Case No. 3:20-cv-1813 (MPS) (D. Conn.), Judge Michael P. Shea of the U.S. District Court for the District of Connecticut dismissed the Class Complaint without prejudice. Plaintiff Rogers, incarcerated at Cheshire Correctional Institution in Cheshire, Connecticut, filed the case under 42 U.S.C. Section 1983. He names 12 Defendants: former Commissioners of Correction Scott Semple, James Dzurenda, Leo Arnone, Theresa Lantz, James Armstrong, and Larry Meachum; Warden Henry Falcone, Director of Engineering and Facilities Management Stephen Links, former Director David Batten; and John Does 1-3. The Plaintiff alleges that the Defendants were deliberately indifferent to his health by confining him in a facility with high levels of radon. He is proceeding in forma pauperis. The Plaintiff was housed at Garner Correctional Institution from Oct. 26, 2018, until Oct. 24, 2019. Testing conducted in December 2013 and January 2014 showed levels of radon in excess of the EPA action level of 4.0 piC/L. The levels at Garner sometimes exceeded five times the EPA action level. The Defendants knew that inmates housed at Garner from its opening until the installation of the radon mitigation system in 2014 faced substantial harm from radon exposure but did nothing to abate it. Inmate housing units were not tested for radon. Correctional employees were informed of radon exposure in March 2014, but inmates were not told. Judge Shea explains that the Court must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. Such requirement applies to all prisoner filings regardless whether the prisoner pays the filing fee. The complaint must include sufficient facts to afford the Defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a plausible right to relief. The plaintiff must plead enough facts to state a claim to relief that is plausible on its face. The Judge finds that although the Plaintiff stated that he is filing a complaint asserting his own claims only, he has filed a class action complaint with allegations focusing on inmates confined at Garner in 2014 and earlier. The Plaintiff was confined at Garner from October 2018 through October 2019, over four years after the period addressed in the class action. To state a claim for deliberate indifference to health or safety, the Judge holds that the Plaintiff must show that the conditions of his confinement posed a substantial risk of serious harm and that prison officials were deliberately indifferent to his safety. Deliberate indifference exists when prison officials know of and disregard an excessive risk to inmate safety. A condition is sufficiently severe if it deprives an inmate of basic human needs--e.g., food, clothing, shelter, medical care, and reasonable safety. The Plaintiff alleges that he was exposed to radon during the year he was confined at Garner. Although the Plaintiff does not allege that he suffered any radon-associated conditions, he need not have contracted an illness to state a cognizable claim. However, the Judge finds that the Plaintiff has alleged no facts relating to his confinement at Garner other than the dates of his confinement and it is not clear that he has identified any defendant responsible for his confinement at Garner. The limitations period for filing a section 1983 action in Connecticut is three years. The Plaintiff alleges, for example, that Defendant Meachum was Commissioner of Correction from 1987 to 1995, Defendant Armstrong from 1995 to 2003, Defendant Lantz from 2003 to 2009, Defendant Arnone from 2010 to 2013, and Defendant Dzurenda from 2013 to 2014. All these Defendants were commissioners of correction over four years before the Plaintiff was confined at Garner and over six years before he filed the action. The Judge holds that the allegations against all the Defendants relate to the period from the construction of Garner until the remediation in 2014. There are no allegations showing that any of the Defendants were responsible for the Plaintiff's transfer to Garner, that they took any actions within the limitations period, or even that they were employed by the Department of Correction when the Plaintiff was transferred there in October 2018. It is well-settled in the circuit that, to state a claim under section 1983, the Plaintiff must allege the personal involvement of the defendants in the alleged constitutional violation, the Judge says. Absent allegations showing how the Defendants were personally involved in the Plaintiff's confinement at Garner, the Judge concludes that the Plaintiff fails to state a plausible claim. For these reasons, Judge Shea dismissed the Complaint without prejudice pursuant to 28 U.S.C. Section 1915A(b)(1). The Plaintiff may file an amended complaint including only allegations relevant to his confinement at Garner from October 2018 through October 2019 and naming as the Defendants persons responsible for his confinement there. The Plaintiff will file his amended complaint within 20 days from the date of the Order. If he fails to timely file an amended complaint, the Clerk is directed to enter judgment and close the case. A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y5n9zhuu from Leagle.com. CONSECO LIFE: $27MM Settlement in Burnett Suit Wins Final Approval ------------------------------------------------------------------ In the case, WILLIAM JEFFREY BURNETT, JOE H. CAMP, Plaintiffs v. CONSECO LIFE INSURANCE COMPANY n/k/a Wilco Life Ins. Co, CNO FINANCIAL GROUP, INC., CNO SERVICES LLC, Defendants, Case No. 1:18-cv-00200-JPH-DML (S.D. Ind.), Judge James Patrick Hanlon of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted the Plaintiffs' motion for final approval of the class action settlement. Plaintiffs Burnett and Camp--former holders of "LifeTrend" life insurance policies--allege that the Defendants breached their Policies by announcing and implementing changes in the calculation of Policy premiums and expense charges that caused thousands of policyholders to surrender their Policies. On Oct. 5, 2012, the Plaintiffs filed their original complaint in the Central District of California against the Defendants. They allege that Conseco Life announced that individual LifeTrend policyholders could no longer maintain their Policies without paying substantial new premiums and charges as part of a "shock lapse" strategy designed to induce policyholders to give up their Policies. In November 2012, the Judicial Panel on Multidistrict Litigation conditionally transferred the case to the Northern District of California (No. 10-md-02124; the "LifeTrend MDL"). The LifeTrend MDL encompassed several lawsuits brought by several different plaintiffs. One of the cases, Brady v. Conseco Life Insurance Co., No. 08-cv-5746 (N.D. Cal.), was filed on behalf of almost all LifeTrend policyholders--including policyholders who had retained their policies, as well as policyholders, who had surrendered their policies. In December 2011, the MDL Court held that former policyholders no longer could be included in the Brady Rule 23(b)(2) class because former policyholders had no standing to seek declaratory or injunctive relief, and because the damages they sought were not incidental to injunctive relief. Former policyholders were thereafter removed from the Brady class. In November 2013, the MDL Court approved the Brady settlement and certified two settlement classes--a Rule 23(b)(1) and (2) class of "In Force Policyholders" and a Rule 23(b)(3) class of "Lapsed Policyholders." The Brady Lapsed Policyholders class included approximately 190 former policyholders whose Policies had "lapsed." In April 2015, the MDL Court granted the Defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). It also dismissed the Burnett Plaintiffs' claims against the CNO Defendants because those claims derived from the Burnett Plaintiffs' claims against Conseco Life. In May 2017, the Ninth Circuit reversed the MDL Court's dismissal of the complaint and remanded the instant case to the MDL Court. In September 2017, the Northern District of California remanded the case back to the Central District of California. In January 2018, the case was transferred to this district. In April 2018, the Defendants moved to dismiss the Plaintiffs' complaint for failure to state a claim upon which relief can be granted. In September 2019, the Plaintiffs moved for class certification, ad subsequently, on March 20, 2020, the Court granted Conseco Life's request to withdraw its motion to dismiss and the Plaintiffs' motion for class certification. On April 10, 2020, the Plaintiffs filed a motion for preliminary approval of class action settlement. The Court granted preliminary approval on July 22, 2020, and scheduled the Fairness Hearing for Dec. 3, 2020. On Sept. 21, 2020, the Plaintiffs moved for final approval. Conseco Life has filed a response in support. The Plaintiffs seek (1) final approval of the Settlement Agreement with only Defendant Conseco Life; (2) certification of the settlement class of Conseco Life policyholders; (3) the Plaintiffs' designation as the class representatives; (4) appointment of attorneys from Weisbrod Matteis & Copley PLLC and DeLaney & DeLaney LLC as te class counsel; (5) appointment of Donlin Recano & Company, Inc. as the settlement administrator; (6) approval of the notice of settlement; and (7) approval of the Settlement Agreement's plan of distribution. The proposed class Plaintiffs are Burnett and Camp. The proposed class includes: All Persons who owned a LifeTrend 3 Policy or LifeTrend 4 Policy that was surrendered or lapsed on or after Oct. 1, 2008 and before June 30, 2013. However, the Class does not include LifeTrend 3 Policies or LifeTrend 4 Policies included in the class action settlement in a separate lawsuit known as Brady v. Conseco Life Insurance Company, Inc., et al., No. 3:08-CV-5746 (N.D. Cal.). Judge Hanlon has carefully reviewed the 53-page Proposed Settlement Agreement that would resolve the Plaintiffs' claims against Conseco Life. Some of the critical provisions are: a. The CNO Defendants are not parties to or beneficiaries of the agreement, and nothing in the agreement will impair any rights of the Plaintiffs to prosecute Claims in the Action or otherwise against the CNO Financial Group, Inc. and CNO Services LLC. b. Conseco Life will pay $27 million in cash to settle the claims of the Class. c. No Class member will receive less than $500. d. The amount distributed to the Class will be reduced by the proportional pro rata share of the Settlement Fund attributable to any Opt-Outs. e. No portion of the Settlement Fund will revert to Conseco Life. f. Notices will be mailed to Class members within 30 days after the Court grants the Plaintiffs' motion for preliminary class approval. g. Conseco Life reserves the right to withdraw from the Proposed Settlement Agreement if the number of Class Policies requested to be excluded from the Class by opt-out is more than 150. h. The Class members may opt-out of the Class by serving written requests for exclusion up to 28 days before the Fairness Hearing. i. The Class members may object to the Proposed Settlement Agreement by filing and serving written objections up to 28 days before the Fairness Hearing. j. The Settlement Administrator will distribute the Net Settlement Fund in two distributions. k. Any portion of the Net Settlement Fund that remains unclaimed after the Second Distribution, as well as any funds that are not distributed to Opt-Outs in satisfaction of individual settlements or judgments, will be used to fund a cy pres award to the National Consumer Law Center, or alternatively to another recipient designated by the Court. l. Once the settlement becomes final and Conseco Life funds the Settlement Fund, the Plaintiffs and the Class members will release any and all claims against Conseco Life (and certain related individuals and entities) based on the LifeTrend Policies. m. No attorneys' fees, expenses, or Class representative awards will be distributed out of the Settlement Fund without the Court's approval, and the total expenses to be withdrawn from the Settlement Fund will not exceed $1.25 million. n. The Plaintiffs may seek a reasonable portion of the settlement fund to be set aside for litigation costs, attorneys' fees, and Class representative incentive awards. As the Court confirmed at the Dec. 3, 2020 fairness hearing, no class members have filed objections or opted out. Judge Hanlon granted the Plaintiffs' Motion for Final Approval. He granted final approval of the Settlement Agreement as fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e)(2). The previously certified Class is finally certified under Federal Rule of Civil Procedure 23(b)(3) for settlement purposes. The Judge designated Plaintiffs Burnett and Camp as the class representatives and appointed the following attorneys as the Class Counsel: Stephen A. Weisbrod, Shelli L. Calland, Tamra B. Ferguson, Saul Cohen, at Weisbod Matteis & Copley PLLC, Kathleen A. DeLaney at DeLaney & DeLaney LLC. He confirmed approval of Donlin Recano & Company, Inc. as the Settlement Administrator of the Claim Process. For the reasons in the Order and in the parties' submissions, the Judge also granted the Plaintiffs' Motion for Attorneys' Fees, Expenses, and Plaintiffs' Incentive Awards. The Class Counsel are awarded fees of $9 million. The Class Counsel are awarded reimbursement of $577,662.29 from the Settlement Cash Consideration for the amount of Preliminary Settlement Administration Expenses that the Class Counsel have paid to date. Conseco Life is given a credit toward the Settlement Cash Consideration of $50,000 for the Preliminary Settlement Administration Expenses that Conseco Life has paid to date. Reasonable Settlement Administration Expenses incurred after the entry of the Final Approval Order under the Plan of Allocation will be paid to Donlin Recano out of the Settlement Cash Consideration, provided that the total sum of all the Class Counsel's Expenses and Settlement Administration Expenses (including Preliminary Settlement Administration Expenses) will not exceed $1.25 million. Plaintiffs Burnett and Camp are awarded the Plaintiffs' Service Awards of $25,000 each. The fees and expenses are to be paid as outlined in Article 9 of the Settlement Agreement. Partial final judgment under Federal Rule of Civil Procedure 54(b) will be issued by separate entry. A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y4dubr4b from Leagle.com. COSTA DEL MAR: Jan. 31 Settlement Claims Filing Deadline Set ------------------------------------------------------------ Joe Ducey, writing for ABC15, reports that a lawsuit against Costa Del Mar claims their sunglasses lifetime warranty comes with an unfair repair fee. The suit claims it's more than a nominal fee. A settlement means if you bought before 2018 and paid for repairs, you could qualify for part of the $60 million dollar settlement. The deadline to file a claim is January 31st, 2021. Costa Del Mar claims no wrongdoing in settling this lawsuit. Click here for more on this settlement. A different class action lawsuit involves something you may not know; privacy laws prevent credit and debit card receipts from having more than the last five digits shown. Also, receipts cannot show expiration information. A lawsuit involving Everi, the provider of ATMs and casinos, alleges receipts showed more numbers than allowed. If by chance you have those receipts from February 2016 through 2019, you could get up to $60 per violation. Everi claims no wrongdoing in settling this lawsuit. The deadline to file a claim is February 1, 2021. Click here for more on this settlement. But the law allows up to $1000 per violation if you can prove it. Unfortunately, you may have to go to court to get it. [GN] COSTCO WHOLESALE: Asks Court to Junk Rough Class Certification Bid ------------------------------------------------------------------ In the class action lawsuit captioned as MEGAN ROUGH, individually and on behalf of all similarly situated current and former employees of DEFENDANTS in the State of California, v. COSTCO WHOLESALE CORPORATION, a Delaware Corporation; and DOES 1 through 50, inclusive, Case No. 2:19-cv-01340-MCE-DB (E.D. Cal.), the Defendant asks the Court to enter an order denying the Plaintiff's motion to certify the following class and subclasses: -- The Nonexempt Class: "all current and former nonexempt employees who worked for Costco in the State of California at any time from four years prior to the filing of the Complaint through the present;" -- Wage Statement Subclass: "all members of the Nonexempt Class, who worked for the Defendant in the California within one year of the filing of the complaint and whose time punches were automatically changed through Defendant's Three Minute Window Policy;" -- The Closing-Shift Subclass: "all members of the Nonexempt Class, who worked for the Defendants in the State of California at one of the Defendants' warehouse stores and who worked one or more closing shifts at any time from four years prior to the filing of the Complaint to March 4, 2019;" and -- The Waiting Time Penalties Subclass: "all members of the Nonexempt Class, whose employment with Costco ended at any time from three years prior to the filing of the Complaint through the present." The Defendant will move for an order that class certification be denied with respect to Plaintiff's exit delay theory for the following reasons: -- Plaintiff's theory that closing practices cause unpaid working time cannot produce common answers to common questions based on common proof, meaning that she cannot prove predominance and superiority under Rule 23(a)(2) and 23(b)(3). -- No policy necessarily caused unpaid working time. Costco policies required prompt employee exits, required pay for all time worked, required employees to record all compensable time, and provided exception logs to record off-the-clock activities. -- To the extent exit delays occurred, many were de minimis, and many minor delays not otherwise recorded were covered by Costco's pro-employee rounding practice. Thus, Costco managers would not necessarily have known, and would not necessarily should have known, of unpaid time. Costco Wholesale is an American multinational corporation that operates a chain of membership-only warehouse clubs. A copy of the Defendant's motion to deny class certification dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/2KHdKkC at no extra charge.[CC] The Defendant is represented by: David D. Kadue, Esq. David D. Jacobson, Esq. Jinouth D. Vasquez Santos, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: dkadue@seyfarth.com djacobson@seyfarth.com jvasquezsantos@seyfarth.com COSTCO WHOLESALE: March 25 Hearing on Class Cert. Denial Bid Voided ------------------------------------------------------------------- In the class action lawsuit captioned as Rough v. Costco Wholesale Corporation, Case No. 2:19-cv-01340 (E.D. Cal.), the Hon. Judge Morrison C. England, Jr. entered an order vacating the March 25, 2021 hearing on the Motion to Deny Class Certification -- The opposition or statement of non-opposition and reply due dates shall be filed in accordance with the original motion hearing date. -- If the Court determines that oral argument is needed it will be scheduled at a later date. The nature of suit states Labor -- Other Labor Litigation involving Diversity-Employment Discrimination. Costco Wholesale Corporation is an American multinational corporation that operates a chain of membership-only warehouse clubs.[CC] COSTCO WHOLESALE: Rough Seeks to Certify Class & Three Subclasses ----------------------------------------------------------------- In the class action lawsuit captioned as MEGAN ROUGH, individually and on behalf of all similarly situated current and former employees of the DEFENDANTS in the State of California, v. COSTCO WHOLESALE CORPORATION, Delaware corporation; and DOES 1-50, inclusive, Case No. 2:19-cv-01340-MCE-DB (E.D. Cal.), the Plaintiff asks the Court to enter an order: 1. certifying the following class and subclasses: -- The Nonexempt Class: "all current and former nonexempt employees who worked for Costco in the State of California at any time from four years prior to the filing of the Complaint through the present;" -- Wage Statement Subclass: "all members of the Nonexempt Class, who worked for the Defendant in the California within one year of the filing of the complaint and whose time punches were automatically changed through Defendant's Three Minute Window Policy;" -- The Closing-Shift Subclass: "all members of the Nonexempt Class, who worked for the Defendants in the State of California at one of the Defendants' warehouse stores and who worked one or more closing shifts at any time from four years prior to the filing of the Complaint to March 4, 2019;" and -- The Waiting Time Penalties Subclass: "all members of the Nonexempt Class, whose employment with Costco ended at any time from three years prior to the filing of the Complaint through the present;" 2. approving herself as class representative; and 3. appointing GrahamHollis A.P.C. as class counsel. Costco Wholesale is an American multinational corporation that operates a chain of membership-only warehouse clubs. A copy of the Plaintiff's motion to certify class dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3a1bdKE at no extra charge.[CC] The Plaintiff is represented by: Graham S.P. Hollis, Esq. Nathan Reese, Esq. GRAHAMHOLLIS APC 3555 Fifth Avenue Suite 200 San Diego, CA 92103 Telephone: (619) 692 0800 Facsimile: (619) 692 0822 E-mail: ghollis@grahamhollis.com nreese@grahamhollis.com CREAM-O-LAND DAIRY: Reversal of Summary Judgment in Branch Affirmed ------------------------------------------------------------------- In the case, Elmer Branch, on behalf of himself and all other similarly situated persons, Plaintiff-Respondent v. Cream-O-Land Dairy, Defendant-Appellant, Case Nos. A-29 September Term 2019, 083379 (N.J.), the Supreme Court of New Jersey affirms as modified the Appellate Division's determination reversing the trial court's order granting the Defendant's motion for summary judgment. In the putative class action, Plaintiff Branch asserted claims against his employer, Defendant Cream-O-Land Dairy, for payment of overtime wages pursuant to the New Jersey Wage and Hour Law ("WHL"), N.J.S.A. 34:11-56a to-56a38. The Plaintiff sought certification of a class consisting of "all individuals that performed truck driving functions in the State of New Jersey for Defendants from November 2014 to the present." The Plaintiff alleged that he and other class members worked an average of 60 to 80 hours per week loading and unloading the Defendant's snack products and delivering those products to its customers. The Plaintiff claimed that he and the other truck drivers employed by the Defendant were entitled to be paid 1 ½ times their hourly rate in overtime compensation when they worked more than 40 hours per week. He contended that the Defendant violated the WHL by failing to pay them overtime in accordance with N.J.S.A. 34:11-56a4(b)(1). The Defendant countered with two principal arguments. First, it asserted that it is a "trucking industry employer" under another WHL provision, N.J.S.A. 34:11-56a4(f), and that it is therefore exempt from the overtime requirements of N.J.S.A. 34:11-56a4(b)(1) and required to pay only 1 ½ times the minimum wage for overtime hours. Second, the Defendant argued that it relied in good faith on certain determinations that it qualified as a "trucking industry employer" and could therefore invoke the defense set forth in N.J.S.A. 34:11-56a25.2. N.J.S.A. 34:11-56a25.2 is a provision of the WHL that affords to an employer an absolute defense in certain WHL actions involving minimum wages and overtime compensation based on the employer's good-faith reliance on certain Department of Labor and Workforce Development determinations. In support of its assertion of the WHL's good-faith defense, the Defendant cited three prior determinations by employees of the Department concluding that it was a "trucking industry employer" entitled to claim an exemption under N.J.S.A. 34:11-56a4(f). The trial court viewed those decisions to satisfy N.J.S.A. 34:11-56a25.2's standard for the good-faith defense and granted summary judgment dismissing the Plaintiff's claims. The Appellate Division reversed the trial court's grant of summary judgment, holding that none of the Department's determinations on which the Defendant relied met the requirements of the good-faith defense. It accordingly remanded the matter to the trial court for further discovery as to whether the Defendant meets the statutory definition of a trucking industry employer and the actual hourly compensation the Plaintiff received. The Supreme Court of New Jersey granted the Defendant's petition for certification. It maintained the amicus curiae status of the Attorney General, and granted the joint applications of the New Jersey Civil Justice Institute ("NJCJI") and the National Federation of Independent Business ("NFIB"), and of the New Jersey Business & Industry Association ("NJBIA") and the Commerce and Industry Association of New Jersey ("CIANJ"), as well as the application of the New Jersey Association for Justice ("NJAJ"), to appear as amici curiae. The Defendant claims that the Appellate Division ignored the plain language of N.J.S.A. 34:11-56a25.2 when it held that the three decisions it cited do not give rise to a good-faith defense. It contends that N.J.S.A. 34:11-56a25.2 does not mandate that the employer rely on a "final agency decision" in order to assert the defense. The Defendant asserts that the Appellate Division improperly deferred to what it characterizes as the Attorney General's new interpretation of N.J.S.A. 34:11-56a25.2. It urges the Court to rely on federal case law and regulations applying 29 U.S.C. Section 259, an FLSA provision addressing the good-faith defense. The Plaintiff counters that the Appellate Division properly construed the WHL's good-faith defense narrowly, as the defense exempts certain employers from WHL provisions protecting employees from unfair wages and excessive hours. He maintains that the Appellate Division correctly determined that none of the three decisions cited by defendant met the requirements of N.J.S.A. 34:11-56a25.2. The Plaintiff asserts that the Appellate Division's decision accords with the plain language of N.J.S.A. 34:11-56a25.2 and the Attorney General's interpretation of the statute. He notes that the federal standard governing the good-faith defense under the FLSA has not been adopted in New Jersey, and he urges the Court not to consider that standard in the appeal. Amicus curiae the Attorney General asserts that the good-faith defense applies only to the high-level decisions by the Department enumerated in N.J.S.A. 34:11-56a25.2: administrative rulemaking, a final decision by the Commissioner or Director, or an official practice or policy that affects a class of employers. The Attorney General contends that none of the three cited informal decisions by subordinate employees of the Department meets N.J.S.A. 34:11-56a25.2's requirements. The Attorney General acknowledges, however, that the 2006 Opinion Letter, which broadly discussed the Department's policy and interpretation of the WHL, meets the description set forth in the second prong of the statute. Amici curiae NJCJI and NFIB contend that it is impractical for the Commissioner or the Director to personally make and communicate all decisions to terminate investigations and that it is unfair to require an employer to demonstrate the involvement of one of those senior officials in order to assert the good-faith defense. They argue that repeated findings by Department investigators that a business's employees were properly compensated for overtime work should give that business a legitimate basis to assert good-faith compliance with the WHL. Amici curiae NJBIA and CIANJ assert that the three decisions defendant received, each confirming defendant's status as a "trucking industry employer" within the meaning of N.J.S.A. 34:11-56a4(f), clearly reflected the Department's "ruling, approval and/or interpretation." Amici argue that an employer should be permitted to rely on such decisions in good faith. The Supreme Court of New Jersey concurs with the Appellate Division that none of the decisions identified by the Defendant satisfy the requirements of the good-faith defense under the plain language of N.J.S.A. 34:11-56a25.2. It acknowledges, however, the dilemma faced by an employer such as the Defendant, which repeatedly prevailed in overtime disputes before subordinate Department employees but was unable to seek a ruling from the Commissioner of the Department of Labor and Workforce Development (Commissioner) because each of those disputes was resolved without further review. The Supreme Court of New Jersey respectfully suggests that the Department would further the Legislature's intent in N.J.S.A. 34:11-56a25.2 if it instituted a procedure by which an employer in the Defendant's position could obtain an opinion letter or other ruling clarifying its obligations under the WHL's overtime provisions. The Legislature and the Department may determine whether further statutory or regulatory guidance should be provided regarding the good-faith defense under N.J.S.A. 34:11-56a25.2. In that regard, the federal approach to the good-faith defense set forth in the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. Sections 201 to 219, and the regulations promulgated pursuant to the FLSA, may be considered. Accordingly, the Supreme Court of New Jersey affirms as modified the Appellate Division's determination. It remands the matter to the trial court for consideration of the Defendant's argument that it is a trucking-industry employer within the meaning of N.J.S.A. 34:11-56a4(f) and for determination of whether it complied with the applicable WHL overtime standards in compensating its employees. A full-text copy of the Court's Jan. 13, 2021 Opinion is available at https://tinyurl.com/y5hudtx6 from Leagle.com. David R. Kott -- dkott@mccarter.com -- argued the cause for Appellant (Fox Rothschild and McCarter & English, attorneys; Mark E. Tabakman -- mtabakman@foxrothschild.com -- and Adam N. Saravay -- asaravay@mccarter.com -- on the briefs). Ravi Sattiraju argued the cause for respondent (Sattiraju & Tharney, attorneys; Ravi Sattiraju, of counsel and on the briefs, and Anthony S. Almeida and Steven B. Gladis, on the briefs). Michael A. Galpern -- mgalpern@lawjw.com -- argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Michael A. Galpern on the brief). Thomas A. Linthorst -- thomas.linthorst@morganlewis.com -- argued the cause for amici curiae New Jersey Business & Industry Association and Commerce and Industry Association of New Jersey (Morgan Lewis & Bockius, attorneys; Thomas A. Linthorst, of counsel and on the brief). Jeffrey S. Jacobson -- jeffrey.jacobson@faegredrinker.com -- argued the cause for amici curiae New Jersey Civil Justice Institute and National Federation of Independent Business (Faegre Drinker Biddle & Reath, attorneys; Jeffrey S. Jacobson, on the brief). Caroline Jones, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Donna Arons, Assistant Attorney General, of counsel, and Caroline Jones, on the brief). CREDIT CONTROL: Schwartz Sues Over Deceptive Debt Collection Letter ------------------------------------------------------------------- YOEL SCHWARTZ, individually and on behalf of all others similarly situated, Plaintiff v. CREDIT CONTROL SERVICES, INC. d/b/a CREDIT COLLECTION SERVICES, Defendant, Case No. 1:21-cv-00262 (E.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of the Fair Debt Collections Practices Act. According to the complaint, the Defendant sent a misleading and deceptive collection letter to the Plaintiff about the status of an alleged debt. The alleged debt arises from medical services rendered to the Plaintiff's daughter, who is enrolled in Medicaid. As a Medicaid patient, the Plaintiff's daughter may not be balance-billed. The Defendant's debt letter misrepresented the debt's status as collectible, when it was not, the suit says. Credit Control Services, Inc., doing business as Credit Collection Services, is a debt collection company with its principal place of business located in Norfolk County, Massachusetts. [BN] The Plaintiff is represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: csanders@barshaysanders.com CUYAHOGA COUNTY, OH: Summary Ruling Bid Nixed in Tarrify Class Suit ------------------------------------------------------------------- In the class action lawsuit captioned as TARRIFY PROPERTIES, LLC, et al., v. CUYAHOGA COUNTY, Case No. 1:19-cv-02293-JG (N.D. Ohio), the Hon. Judge James S. Gwin entered an order denying Cuyahoga County's summary judgment motion. The Court recognizes that the nature of the case has changed following its class certification and summary judgment rulings and is aware that the Plaintiff has requested leave to appeal the Court's class certification decision. Accordingly, the Court grants the parties' joint motion to stay pending litigation deadlines, including the trial date, and stays this case until the Sixth Circuit decides whether to accept Tarrify's appeal. If the Sixth Circuit accepts the appeal, the case is stayed until the appeal is resolved. If the Sixth Circuit declines Tarrify's appeal, the Court will set a status conference to revisit the case schedule, the Court added. On October 31, 2019, Plaintiff Tarrify sued the Defendant Cuyahoga County. With its lawsuit, Plaintiff Tarrify claimed that Cuyahoga County violated the Fifth Amendment's Takings Clause by seizing Tarrify's Cleveland property without compensating Tarrify for any value above Tarrify's $35,000 property tax debt. On July 8, 2020, the Plaintiff moved to certify a class of: "Cuyahoga County residents whose property the County has seized to satisfy County property tax debts where those tax debts were less than the seized property's value." On December 21, 2020, this Court denied the Plaintiffs' class certification motion, finding, as many Courts have, that tax valuations are inadmissible to show fair market property value for non-tax purposes. Cuyahoga County is located in the northeastern part of the U.S. state of Ohio on the southern shore of Lake Erie, across the U.S.-Canada maritime border. A copy of the Court's opinion and order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3sMFIgd at no extra charge.[CC] CYTOMX THERAPEUTICS: Securities Class Suit Tossed w/o Prejudice --------------------------------------------------------------- CytomX Therapeutics, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on January 19, 2021, that the putative securities class action lawsuit that was commenced in May 2020 in the U.S. District Court for the Northern District of California against the Company and three current and former officers alleging the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 thereunder, was dismissed without prejudice on January 14, 2021. CytomX Therapeutics, Inc. operates as an oncology-focused biopharmaceutical company. The Company focuses on developing probody therapeutics for the treatment of cancer. CytomX Therapeutics serves pharmaceutical industries throughout the United States. The company is based in South San Francisco, California. DECISION DIAGNOSTICS: Rosen Law Firm Reminds of March 16 Deadline ----------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Jan. 18 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Decision Diagnostics Corp. (OTC: DECN) between March 3, 2020 and December 17, 2020, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Decision Diagnostics investors under the federal securities laws. To join the Decision Diagnostics class action, go to http://www.rosenlegal.com/cases-register-2009.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Decision Diagnostics had not developed any viable COVID-19 test, much less a test that could detect COVID-19 in less than one minute; (2) Decision Diagnostics could not meet the U.S. Food and Drug Administration's emergency use authorization testing requirements for its purported COVID-19 test; (3) accordingly, defendants had misrepresented the timeline within which Decision Diagnostics could realistically bring its COVID-19 test to market; (4) all of the foregoing subjected defendants to an increased risk of regulatory oversight and enforcement; and (5) as a result, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 16, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-2009.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. Contacts: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] DOWNHOLE TECHNOLOGY: Esquivel Labor Suit Transferred to S.D. Texas ------------------------------------------------------------------ The case captioned as CARLOS ESQUIVEL, individually and on behalf of all others similarly situated v. DOWNHOLE TECHNOLOGY LLC, NATIONAL BOSS HOG ENERGY SERVICES LLC AND THE WELLBOSS COMPANY LLC, Case No. 7:20-cv-00038, was transferred from the Western District of Texas to the U.S. District Court for the Southern District of Texas on January 19, 2021. The Clerk of Court for the Southern District of Texas assigned Case No. 4:21-cv-00181 to the proceeding. The case arises from the Defendants' alleged violations of the Fair Labor Standards Act and the New Mexico Minimum Wage Act by failing to compensate the Plaintiff and all others similarly situated workers overtime pay for all hours worked in excess of 40 hours in a workweek. Downhole Technology LLC is an oil field equipment manufacturer based in Texas. National Boss Hog Energy Services LLC, now known as Downhole Technology LLC, is an oil field equipment manufacturer based in Texas. The Wellboss Company LLC is an oil field equipment manufacturing company based in Texas. [BN] The Plaintiff is represented by: Chris R. Miltenberger, Esq. THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC 1360 N. White Chapel, Suite 200 Southlake, TX 76092-4322 Telephone: (817) 416-5060 Facsimile: (817) 416-5062 E-mail: chris@crmlawpractice.com DRIVELINE RETAIL: McGlenn's Renewed Bid for Class Status Tossed --------------------------------------------------------------- In the class action lawsuit captioned as LYNN MCGLENN, on behalf of herself and all others similarly situated, v. DRIVELINE RETAIL MERCHANDISING, INC., Case No. 2:18-cv-02097-SEM-TSH (C.D. Ill.), the Hon. Judge Sue E. Myerscough entered an order denying the Plaintiff's Renewed Motion for Class Certification. The Court said, "It recognizes that the putative class members share certain issues, including whether the Defendant owed a duty and whether the Defendant breached that duty. However, these issues do not predominate overall claims as they are only related to two claims. The Plaintiff has alleged six claims against the Defendant. Additionally, the Plaintiff agrees that damages will require individual assessment for each class member, and the Plaintiff seems to acknowledge that causation may require an individual inquiry, to which the Court agrees." The Court finds that certifying the issues identified by Plaintiff for class purposes would not promote judicial efficiency. Similarly here, the Plaintiff's suggestion to determine a portion of her negligence and breach of fiduciary duty claims on a class-wide basis would be inefficient, the Court added. Accordingly, the Court denies Plaintiff's request to certify the class for particular issues pursuant to Rule 23(c)(4). The Plaintiff alleges that Defendant Driveline provides retail merchandising services, including setting up product displays and shelving products at big-box retail establishments throughout the United States. In the ordinary course of Driveline's business, Driveline maintains current and former employees' personal and tax information, including the name, address, zip code, date of birth, wage and withholding information, and Social Security number. On January 25, 2017, an employee in Driveline's payroll department, Susan Merciel, sent an email to a phishing perpetrator with 15,878 perpetrator posed as Driveline's Chief Financial Officer and asked for all employee W-2s for 2016. The Driveline employee complied with the email request and sent the phishing perpetrator a data file containing copies of W-2 statements for employees who worked at and received wages from Driveline during the time period of January 1, 2016 through December 31, 2016, which contained sensitive personally identifiable information (PII). The Plaintiff alleges that the Driveline employee, Susan Merciel, voluntarily made an authorized disclosure of PII of former and current employees of Driveline to a third party without encryption or password protection. On February 14, 2017, Driveline sent a letter to its current and former employees advising that their 2016 W-2 had been subjected to a data breach. A copy of the Court's order and opinion dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3ocH1RZ at no extra charge.[CC] ECOARK HOLDINGS: Notice of Dismissal Filed in Abrahms Class Suit ---------------------------------------------------------------- Ecoark Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on January 19, 2021, that Simon Abrahms filed a notice of dismissal without prejudice of the class action lawsuit filed in the United States District Court of the District of Nevada. On January 15, 2021, Simon Abrahms filed a notice of dismissal without prejudice of the class action lawsuit which was filed in the United States District Court of the District of Nevada on November 9, 2020 against Ecoark Holdings, Inc. and members of its Board of Directors. This lawsuit is discussed in more detail in the Company's revised definitive proxy statement on Schedule 14A filed on December 11, 2020. As disclosed in the Current Report on Form 8-K filed on January 4, 2021, the Company's shareholders ratified the corporate action giving rise to this litigation at a special meeting that was held on December 29, 2020. As a result, the Company expects that its sole liability is to reimburse the plaintiff for his reasonable attorneys' fees. Ecoark Holdings, Inc., through its subsidiary, Zest Labs, Inc., provides freshness management solutions for fresh food growers, suppliers, processors, distributors, grocers, and restaurants. It offers Zest Fresh solution, a cloud-based post-harvest shelf-life and freshness management solution that matches customer freshness requirements with actual dynamic product freshness and reducespost-harvest losses; and Zest Delivery solution, which provides real-time monitoring and control for prepared food delivery containers, and helps delivery and dispatch personnel to ensure the quality and safety of delivered food. The company was founded in 2011 and is based in Frisco, Texas. EDEN CREAMERY: Feb. 17 Briefing for Class Status Bid Sought ----------------------------------------------------------- In the class action lawsuit captioned as YOUSSIF KAMAL, GILLIAN NEELY, RICHARD LICHTEN, SUSAN COX, NICK TOVAR, MICHELE KINMAN, RALPH JACOBSON, ASHLEY PETEFISH and TERI BROWN, on their own behalf and on behalf of all others similarly situated, v. EDEN CREAMERY, LLC, dba HALO TOP CREAMERY, and JUSTIN T. WOOLVERTON, Case No. 3:18-cv-01298-TWR-AGS (S.D. Cal.), the Parties ask the Court to enter an order regarding a schedule for the briefing on the Plaintiffs' class certification motion and the Defendants' Motion to Exclude the Report of Stefan Boedeker, both of which are set for hearing on February 17, 2021 at 1:30pm Halo Top Creamery is an ice cream company and brand sold in the United States, Australia, Mexico, Canada, Ireland, New Zealand, the Netherlands, Germany, Denmark, Taiwan, South Korea, Austria, United Kingdom and the United Arab Emirates. A copy of the joint motion dated Jan. 19, 2020 is available from PacerMonitor.com at http://bit.ly/39TMvMjat no extra charge.[CC] Attorneys for the Plaintiffs Individually and on Behalf All Others Similarly Situated, are: Andrew J. Brown, Esq. Brian J. Ellsworth, Esq. THE LAW OFFICES OF ANDREW J. BROWN 501 West Broadway, Suite 1490 San Diego, CA 92101 Telephone: (619) 501- 6550 E-mail: andrewb@thebrownlawfirm.com brian@bjellsworth.com Attorneys for the Defendants Eden Creamery LLC and Justin T. Woolverton, are: Dale J. Giali, Esq. Keri E. Borders, Esq. Daniel D. Queen, Esq. MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: dgiali@mayerbrown.com kborders@mayerbrown.com dqueen@mayerbrown.com ENEDIS SA: Opponents of Linky Meters Appeal Win Partial Victory --------------------------------------------------------------- Connexion France reports that opponents of the Linky meters won a partial victory when the Bordeaux appeal court ruled that the legal texts Enedis has relied on to impose them did not apply to installing electricity meters - but this will not lead to any immediate change on the ground. Enedis was also ordered to put filters on the meters installed in the homes of 13 customers who had complained they were aggravating their sensitivity to electronic devices. The court did not go as far as to say Enedis must stop installing the meters. Although most homes in France now have them - around 30million meters had been installed by the end of 2020 - they have met with frequent opposition since the firm started the roll-out in 2015. Some say the fluorescent green meters, which automatically send readings instead of having to be read in person, can cause health problems, especially for those who suffer hypersensitivity to electromagnetic waves - a controversial condition, which many say does not exist. Others have data confidentiality concerns, considering that they may collect too much information on people's lifestyles or fearing the data could be hacked into or passed to third parties. Even so, the roll-out corresponds to an EU directive on member states having 80% of smart meters by the end of this year. Toulouse avocat Christophe Leguevaques said: "It is the first time that a challenge on the legality of Linky meters of this sort has been won and the court agreed with the arguments we put forward. However, Enedis is also claiming victory because it was not told to take the meters out. "There are filters which work and, for the 13 people, Enedis must put them on at its own cost." Mr Lèguevaques, founder of the MySMARTcab group of lawyers specialising in collective actions, added: "The judges said there is no legal or regulatory text, at European or national level, which obliges Enedis, either as a private company or as a public service contractor, to install Linky meters in homes. "They also recognised that there is an illicit function in Linky, which allows the characteristics of electrical equipment, like a dishwasher, to be used to identify what equipment is running when in a house, and Enedis should tell customers about this, which it has not done." Around 200 people were involved in the case as a class action, made possible by recent changes in the law, allowing such group cases. Mr Lèguevaques said another action was now being prepared, specifically to challenge the legal basis for the installation of the meters. "The Bordeaux decision has given us encouragement." The Agence nationale des frequences, which manages electromagnetic frequencies in France, has said that no abnormal levels of waves are given off by the meters. Enedis was unable to find anyone to talk to The Connexion about the case. [GN] FANNIE MAE: Class Certification Filing Due on June 18 ------------------------------------------------------ In the class action lawsuit re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations, Case No. 1:13-mc-01288-RCL (D.D.C.), the Hon. Judge Royce C. Lamberth entered the fourth amended scheduling order, as follows: 1. Fact discovery shall close on March 26, 2021. 2. The deadline for seeking leave to add additional parties or amend the pleadings is April 23, 2021. 3. Regarding expert discovery: a. The Plaintiff's expert witness reports shall be produced by June 18, 2021; b. Deposition of the Plaintiffs' experts shall be conducted by July 23, 2021; c. The Defendants' rebuttal expert reports shall be produced by August 20, 2021; and d. All expert discovery, including deposition of Defendants' experts shall be completed by September 17, 2021. 4. Regarding class certification: a. The Plaintiffs' motion for class certification is due on June 18, 2021; b. The Defendants' opposition is due on August 20, 2021; and c. The Plaintiffs' reply is due on September 17, 2021. 5. Regarding motions for summary judgment: a. The Defendants shall file their motion for summary judgment on or before October 15, 2021; b. The Plaintiffs' response and cross-motion for summary judgment is due November 19, 2021; c. The Defendants' reply and response is due on December 22, 2021; and d. Plaintiffs' reply is due January 14, 2022. 6. Trial is set for May 16, 2022, or at the Court's earliest convenience thereafter, with a pretrial conference 30 to 60 days beforehand, the exact date to be set later. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/367LTSa at no extra charge.[CC] FEDERAL MANAGEMENT: Fox Rothschild Attorneys Discuss Court Ruling ----------------------------------------------------------------- Mark Tabakman, Esq. -- mtabakman@foxrothschild.com -- of Fox Rothschild LLP, in an article for JDSupra, reports that in class actions there is always a named plaintiff (or two or three, etc). That person acts as the class representative and is the "flagship" for the entire case. When that individual does something to jeopardize their status as such a "representative," the entire case might go away. That is precisely what happened in a recent class case for alleged unpaid overtime where the named plaintiff contradicted her deposition testimony, tried to change it to better bolster her case and failed. The case is entitled Tam et al. vs. Federal Management Co. Inc. et al. and issued from the Massachusetts Appeals Court. The plaintiff here tried to, through the "abundant" use of the errata sheet, used to correct ostensible errors in a deposition, to make wholesale changes in that deposition testimony, where she admitted that she may have been exempt from overtime, in diametric opposition to her claims and theory of the case. Thus, her tactic came under the sham affidavit rule, which precludes a party from undermining their own deposition testimony so as to manufacture a factual dispute that would preclude summary judgment. As the Judge aptly stated, "she admitted to subsidiary facts that contradicted her earlier statements and then ultimately had to acknowledge the opposite of what she initially had asserted." The Judge then added that "given that the sham affidavit rule applies, Tam's admissions about the nature of her job stand uncontradicted. There is, therefore, no genuine dispute as to the material fact that her job qualified as an exempt administrative position." The plaintiff, a property manager, submitted a 32-page errata, far after the due date for such a submission. She claimed her deposition was paused, not completed, which made her submission timely. The Court knocked down that argument quickly. On the merits, the Court noted that the plaintiff changed "no" answers from her deposition to "yes" and other answers from "yes" to "no" more than more than 60 times. As to fifty of the changes, the plaintiff claimed she either misunderstood a question or found it confusing. The Court shot that down as well, stating that "nothing in the deposition transcript suggests that the relevant questions were posed to Tam in a manner that overbore her will or that even could be characterized as intimidating, that the questions themselves were unclear, or that she failed to understand them." The Takeaway What the plaintiff was trying to reverse was her admission that she was exempt from overtime based upon her job description. The defendant's brief labeled what she was trying to do as a "troublesome tactic" that would "undercut the very purpose of civil discovery and summary judgment." They were right. This case serves as an object lesson for plaintiffs and lawyers when undertaking lawsuits on exemption issues. Take heed plaintiffs (and their lawyers) . . . [GN] FIRST NATIONAL: Faces Suit Over Sale of Repossessed Properties -------------------------------------------------------------- Ciaran Ryan, writing for Moneyweb, reports that it's been known for years that the banks have been flogging off repossessed properties for a fraction of their market worth, but the evidence was anecdotal and fragmented. Not anymore. An affidavit filed in support of the R60 billion class action suit brought by Lungelo Ditokelo Human Rights Foundation against the major banks, based on a sample of about 12 000 repossessed properties, found that these properties were sold for 50-60% of their proper value, mainly through sheriff's auctions. The class action suit, which is being defended by the banks, seeks to recover billions of rands in lost home equity as a result of this practice. "Our South African banks sell property about five times more than the international average as a percentage of the total number of outstanding bonds and 20 times more than best practice," says Garth Zietsman, a statistician who analysed data from the National Credit Regulator. Even more disturbing is that the poor are worst affected. Lower valued homes were sold for about 40% of their market value, against 81% for the higher valued ones. According to the evidence The evidence shows dozens of properties were sold for less than 1% of their market value. Of the 200 worst cases, all were sold for less than 17.2% of their market value. The banks have yet to file their replies to the case. In this case, the lending bank was FNB. Standard Bank and Nedbank also had several properties selling at auction for R1 000 when the market value was R200 000 to R440 000. There is no comparable data available for Absa. As can be seen from the banks' responses below, it seems the rates of evictions and properties ending up in sale in execution (auction) has declined during the Covid crisis. Banks say they are endeavouring to assist clients in difficulties through various interventions (see below). Zietsman's analysis focuses on sales of repossessed properties from 2011 to 2014, before new court rules came into effect obliging banks to establish a reserve (or floor) price before auctioning properties. Prior to this, properties could be sold without floor prices, resulting in some being sold for as little as R100 and even R10. Practices such as this gave rise to claims that criminal syndicates were operating out of the sheriffs' offices. 'Inhumane' King Sibiya, head of the Lungelo Ditokelo Human Rights Foundation, is not convinced of the banks' self-proclaimed virtue and argues that SA has among the most inhumane practices in the world when it comes to bank repossessions. "Here we are in the middle of a Covid crisis when millions of people have fallen into arrears on their homes through no fault of their own, and the government imagines it is business as usual, where banks can carry on like they have done for decades. Eighty percent of the cases before the high courts are brought by banks attempting to recover debts and evict people from their homes. "Other countries impacted by Covid put a total freeze on evictions, while we imposed a freeze of three months. Three months? There's no justice in that. Zoom justice "We have default judgments being handed down by Zoom judges because people cannot attend court in person to defend themselves," says Sibiya. "But then the sheriff comes to evict them, and that is not virtual. That is real." He adds: "People have no idea how to access this virtual justice system -- which is in itself a denial of people's constitutional rights of access to justice." The Foundation says it will be lobbying the Department of Justice to put a total freeze on evictions while the Covid crisis is still in effect. "People will get thrown out of their houses in the thousands, and make no mistake -- that is when you will see a Covid crisis out of control," says Sibiya. The bogus arrears matter Analysis by consumer advocate Leonard Benjamin suggests that many properties are being repossessed over bogus arrears figures. Homeowners are being sued for arrears that have effectively been written off, due to a practice known as "double dipping". Benjamin says the banks are automatically spreading any arrears over the remaining term of the loan each time interest rates are adjusted, which has the effect of extinguishing the arrears. All the customer has to do is pay the new, adjusted instalment to catch up on any outstanding amount owed. Yet the banks continue to pursue customers through the courts for the lump sum arrears. The UK courts ruled against the banks on double-dipping - something local banks have denied doing. Advocate Douglas Shaw, who is representing the Foundation in its class action suit, says the banks resisted the introduction of a reserve price system at sheriffs' auctions which would allow homeowners an opportunity to recover some of the equity in their properties. Now that reserve pricing is part of the law, the banks are still managing to game the system by arguing cases in the high courts instead of the magistrates courts, driving people further into arrears through higher legal costs, and by setting reserve prices so low as to prejudice the defaulting homeowner. "The government needs to treat this as a national crisis and put a freeze on evictions until the Covid crisis has been handled," says Sibiya. FNB's response How many mortgages (and what percentage of mortgage accounts) are now in arrears as a result of lockdown difficulties or rescheduled arrangements? Our stance is to assist customers and only as a last resort to proceed with litigation. Over the course of Covid-19 and the lockdown, we have focused on trying to assist customers via our Cashflow Relief programmes. During the hard lockdown period, litigation was suspended. What percentage of these cases proceed to sale in execution (ie. sheriff's auction)? Refer to question 1 re: suspended litigation during this period. What steps are being taken to accommodate mortgage customers in difficulty as a result of Covid-related loss of income? From 1 April 2020, FNB assisted customers with a customer-centric Cashflow Relief Plan to cover all instalments that a qualifying customer has with us. Our Cashflow relief was for a period of 3-months at prime interest rates with a flexible repayment term. Furthermore, a number of pre-selected customers were offered extended relief for a further 3-months, totalling a 6-month payment break. Our Cashflow Relief Plan covered our customers' instalments across credit, insurance and FNB Connect repayments. We are committed to helping customers to minimise the impact of Covid-19 on their finance and continue to evaluate our assistance for customers on individual merits. Nedbank's response Nedbank will respond, as appropriate, to the allegations contained in Garth Zietsman's affidavit as part of those court proceedings. We do however wish to clarify that the assertion that properties are sold in execution for negligible amounts can be misleading if the complete context (as discussed below) is not provided. The reserve price for sales in execution, being the minimum price at which the property can be auctioned for, is currently determined by the courts. This has been the position since December 2017. Prior to this, in any instance where Nedbank itself purchased a property at a sale in execution, the client's account would always be credited with the fair market value of the property irrespective of the price at which Nedbank would purchase the property for. The client's loan account would therefore reduce with the fair market value of the property and any surplus would be for the client's benefit. The property would then be marketed for sale or auctioned by Nedbank, with a view to achieve the best price possible. If the property is sold or auctioned at a price which is higher than the fair market value, resultant profits (if any), after any [outstanding amounts] on the loan and property expenses are settled, are paid to the client. Nedbank receives no profit from these sales. We are currently in a closed period (for financial reporting), and unfortunately not able to provide the stats requested. Nedbank has several options available to assist customers who are experiencing financial difficulties, such as payment arrangements and restructures. Each case is assessed on its individual circumstances and an appropriate assistance option is provided. We encourage customers who are experiencing difficulties in meeting their obligations to contact us as soon as possible. There are various ways for the clients to reach us. They can either go online via the Nedbank website, MoneyApp, or call the dedicated call centre number (0860 110 702). Standard Bank's response Many customers fear telling their bank that they are not in a position to make a payment on a loan, however, the more engaged customers are, the more likely they are to keep their homes. It is important to remember, it is not in the bank's interest to repossess properties our aim is to try to help customers keep their properties wherever we can. Since the start of the Covid-19 pandemic Standard Bank has offered instalment relief for personal and business banking customers across its markets in Africa. It has also partnered with both private and public sector to provide debt and payment relief for small businesses across the continent. We continue to engage with each of our clients based on their individual needs on a client-by-client basis. We have also encouraged all our clients to contact us as soon as possible if they are concerned that they are facing, or will face, financial distress. We have committed to do everything in our power to assist. The nature of this will differ per customer and over the lockdown may have received a payment holiday, during which time they need not make any payments or may be allowed to make part-payments, while others may benefit from an extended home loan term with lower monthly payments. As economies have opened, our clients have required less support, and many have resumed their payments. At the end of September, the PBB [Personal and Business Banking] SA client relief portfolio had declined from R107 billion to R61 billion, with mortgage lending relief reducing at the same rate. The vast majority of clients are up to date with mortgage lending instalments. This has also been assisted by the favourable interest rates which are at historically low levels. In the extremely unfortunate outcome of repossession, a process that is governed the courts, properties are auctioned by the sheriff of the high court and minimum reserve price for these auctions are also set by the courts as a result to amendments Rule 46 (of the high court rules). Despite the setting of reserve prices, recovery rates are significantly impacted by condition of the property but more importantly the level of arrear rates and taxes as well as levies. These repossessions accounted for less than 0.02% of properties bonded with Standard Bank. This reduced by 60% as a result of the national lockdown. As the lockdown level have eased it expected to return to levels seen prior lockdown. However, when a property is attached, everybody loses and therefore this process is only utilised when all other avenues to assist the rehabilitation the customer has been exhausted. We actively look at alternatives for our customers. Standard Bank's EasySell process is in place to help such customers. This ensures that the best price possible is obtained for the property, the bond is settled and customer's get their credit record back on track. Standard Bank, via the EasySell programme, also offers customers the benefit of reducing the outstanding balance. To date EasySell has assisted in excess of 4 000 customers via this programme. [GN] FLORIDA STATE UNIVERSITY: Class Cert. Deadline Extended to March 22 ------------------------------------------------------------------- In the class action lawsuit captioned as Lafleur, et al., v. State University System of Florida, et al., Case No. 8:20-cv-01665 (M.D. Fla.), the Hon. Judge Kathryn K. Mizelle entered an order granting motion to extend class certification deadline. The class certification deadline is now March 22, 2021. All other deadlines from the Case Management and Scheduling Order remain unaffected, says Judge Mizelle. The nature of suit involves Diversity-Breach of Contract. The State University System of Florida is a system of twelve public universities in the U.S. state of Florida. As of 2018, over 341,000 students were enrolled in Florida's state universities.[CC] GEORGE W. KUHN: Granting of Summary Disposition in Kickham Affirmed ------------------------------------------------------------------- The Court of Appeals of Michigan affirms the order granting summary disposition in favor of the Defendant in the lawsuit titled KICKHAM HANLEY PLLC, as Trustee for a Certified Class of Persons and All Others Similarly Situated, Plaintiff-Appellant v. GEORGE W. KUHN DRAINAGE DISTRICT, Defendant-Appellee, Case No. 351317 (Mich. App.). The Plaintiff, assignee of the City of Oak Park and trustee for a certified class of persons defined in the final order approving a class settlement in Lower Court No. 15-149751-CZ, appeals as of right the trial court's opinion and order granting summary disposition in favor of the Defendant. The Defendant is a drainage district, which is an independent corporate entity that has powers conferred upon it by law. Drainage districts are governed by drainage boards. The Defendant maintains and operates the George W. Kuhn Drain, which operates in an area that includes Oak Park. Oak Park has a combined sewer system that collects both sanitary sewage and stormwater. That sewer system flows to the system operated by the Defendant. Generally, the Defendant diverts all of the stormwater flow from Oak Park and the other communities within the operational area of the drain to two water treatment plants respectively operated by the Detroit Water and Sewerage Department and the Great Lakes Water Authority. All of the subject stormwater flow travels through Detroit's Dequindre Interceptor, and there the flow is measured by a meter. Accordingly, the water treatment plants charge the Defendant an annual flat rate to dispose of stormwater based on the measured flow, and the Defendant allocates that charge among the communities within the operational area of the drain. In February 2005, the Defendant's drainage board tentatively established an apportionment of the costs of the drain for stormwater disposal for the communities within the operational area of the drain. As part of the apportionment, the drainage board made an allocation on the basis of an assumption that all water purchased from the Detroit Water and Sewerage Department would be returned as sanitary flow, and so only the difference between the purchased water and the "Master Meter Charges" would be considered stormwater flow. Thus, under the apportionment, two rates would be charged to the communities within the drain's operational area, one for the cost of sanitary sewage flow into the drain, and the other for stormwater flow, which would be apportioned among the communities on the basis of an engineering study that determined each community's contribution of stormwater. In April 2005, the drainage board resolved to adopt the tentative apportionment of costs it established in February 2005. On the same day, the drainage board entered a Final Order of Apportionment that provided an apportionment of costs between the communities within the operational areas of the drain. In February 2019, in Lower Court No. 2015-149951-CZ, the trial court entered a final judgment and order approving a class settlement between the Plaintiffs, two persons acting as individuals and as representatives of a class of similarly situated persons, and the Defendant, Oak Park. The instant trial court took specific notice of the assignment provisions of that settlement agreement according to which any claims Oak Park possessed against Oakland County or its agencies -- including the Defendant -- for storm water management services relating to overcharges for stormwater management services would be assigned to the class action plaintiffs "or for their benefit." Additionally, the Plaintiff was appointed trustee of a litigation trust to pursue the claims against the Defendant on behalf of the Plaintiffs, and was also appointed counsel for the litigation trust. The trial court also noted that the class action plaintiffs and other members of the class, who did not ask to be excluded from the class would be deemed to have executed a release of all claims against Oak Park relating to the assessment and costs of water and sewer rates "from the beginning of time through the date" of the final judgment and a period of time thereafter. Subsequently, Oak Park executed an assignment of claims to the Plaintiff. The Plaintiff filed its complaint against the Defendant on the basis of the assignment of Oak Park's claims to the Plaintiff as a trustee for the class action plaintiffs. In its complaint, the Plaintiff alleged that the Defendant charged Oak Park approximately $3 million per year for the disposal of stormwater. It further alleged that Oak Park "passe[d] on that cost to its sewer Customers by imposing stormwater charges in its sewer rates to recover the entire $3 million plus per year imposed upon the City by Defendant on an annual basis." According to the complaint, the amount the Defendant charged Oak Park for stormwater disposal should have been the same amount the Defendant was charged by the water treatment plants for stormwater disposal. The Plaintiff alleged that the Defendant charged Oak Park "substantially more than the amount" charged by the water treatment plants for the disposal of Oak Park's stormwater since at least 2011. According to the complaint, the Defendant improperly reallocated the sanitary sewage disposal costs imposed by the water treatment plants to stormwater disposal costs, and as a result defendant overcharged Oak Park. Thus, the Plaintiff raised claims of breach of contract, assumpsit, and unjust enrichment against the Defendant. The trial court ultimately granted the Defendant's motion for summary disposition and dismissed the Plaintiff's claims. The Plaintiff argues that the trial court erred when it granted the Defendant's motion for summary disposition. The Appellate Court disagrees. The Plaintiff argues that the trial court erred when it ruled that the Plaintiff failed to state a breach-of-contract claim. The Appellate Court disagrees. The Plaintiff did not raise any challenges regarding the elements of contract formation in its brief on appeal, and may not do so in its reply brief. Given that the Plaintiff failed to adequately brief this argument, the Appellate Court deems it abandoned. And even if the Plaintiff had properly presented its arguments regarding consideration, the Plaintiff failed to address the other elements of contract formation, therefore, the Plaintiff would have otherwise failed to expose error on the part of the trial court, according to the Appellate Court's Opinion. The Plaintiff next asserts that the trial court erred when it ruled that the Plaintiff failed to allege any damages in support of its assumpsit and unjust enrichment claims. The Appellate Court again disagrees. The Plaintiff has not shown that there is any complexity with issues of proof regarding the effect of the overcharges, and Oak Park's rate-payers were entitled to recover the overcharges from Oak Park but they released those claims. Therefore, the Plaintiff's reliance on this decision is inapt. For these reasons, the Plaintiff has failed to show that the trial court erred in concluding as a matter of law that Oak Park did not incur any damages in this matter. The Plaintiff also argues that the trial court erred when it granted the Defendant's motion for summary disposition because the Plaintiff's allegation that the Defendant charged Oak Park an unreasonable rate for stormwater disposal presented a question of fact. Again, the Appellate Court is not persuaded, stating that the Plaintiff fails to show that the defendant was under some general duty of reasonableness in connection with its stormwater disposal charges. The Plaintiff did not raise an independent claim in its complaint that the Defendant charged unreasonable rates; rather, its allegation that the rates were unreasonable merely supported a claim in assumpsit and a claim of unjust enrichment. Given that the Plaintiff has failed to cite legal authorities that establish the Defendant was required to charge a reasonable rate, or otherwise adequately brief how the trial court erred, the Plaintiff has abandoned this argument on appeal. The Plaintiff also briefly contends that the Defendant asserts that Oak Park released its claims against the Defendant during the class action suit. There is no indication that the Defendant actually raised this argument in the trial court. Because the trial court never considered any such contention, the Appellate Court declines to consider it. In light of the foregoing, the Appellate Court affirmed. A full-text copy of the Court's Opinion dated Jan. 14, 2021, is available at https://tinyurl.com/y5fb5oog from Leagle.com. GREAT ARROW: Pennsylvania Court Refuses to Dismiss Then FLSA Suit ----------------------------------------------------------------- The U.S. District Court for the Western District of Pennsylvania denied without prejudice the Defendant's motion to dismiss the lawsuit styled RAFAEL A. MOREL THEN v. GREAT ARROW BUILDERS, LLC, Case No. 2:20-CV-00800-CCW (W.D. Pa.). Before the Court is Defendant's Motion to Dismiss Count II of Plaintiff Rafael Morel Then's Complaint, relating to alleged violations of the Pennsylvania Minimum Wage Act ("PMWA"), 43 P.S. Section 333.101 et seq. On June 1, 2020, the Plaintiff initiated the action by filing his "Collective and Class Action Complaint," seeking damages on behalf of himself and putative collective/class members for the Defendant's alleged failure to pay certain wages (including overtime) as required under the Pennsylvania Minimum Wage Act ("PMWA") and the Fair Labor Standards Act ("FLSA"). The Plaintiff alleges that the Defendant required its workers, including the Plaintiff, to park their personal vehicles at a company-controlled parking lot before boarding company-owned busses to be driven to their jobsite each day. The Defendant's workers were then returned to the company-controlled parking lot via those same company-owned busses at the end of each shift. The Plaintiff claims that the Defendant failed to include the travel time from the company-controlled parking lot to the jobsite -- which could take upwards of 20 minutes each way -- in its computation of the hours worked by each employee for purposes of wages and overtime. On July 30, 2020, the Defendant moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint, in part, arguing that the Plaintiff's travel time claim under the PMWA must be dismissed with prejudice because it is pre-empted by the FLSA. In short, the Defendant asserts that the PMWA is "conflict preempted" by the FLSA because the PMWA is less generous than the FLSA with regard to travel-time claims. According to the Defendant, it is because while the PMWA requires overtime compensation for travel occurring only during normal working hours, the FLSA requires an employer to pay wages for time spent traveling outside of normal working hours under certain circumstances. In support of that proposition, the Defendant relies principally on Espinoza v. Atlas R.R. Constr., LLC, No. CV 15-1189, 2016 WL 279000, *4 (W.D. Pa. Jan. 22, 2016). It concludes from these holdings that the PMWA falls below the "floor" set by the FLSA for the type of travel time at issue here, and the Plaintiff's claim for unpaid travel time under the PMWA should be dismissed. The Plaintiff, in opposing the Defendant's preemption theory, argues that its contention that the PMWA provides less generous protections than the FLSA with regard to the Plaintiff's travel time claim is at odds with more recent persuasive authority from the United States Court of Appeals for the Third Circuit (Smith v. Allegheny Techs., Inc., 754 Fed.Appx. 136 (3d Cir. 2018). He notes that the unanimous panel in Smith -- which explicitly disagreed with the non-precedential holding of the divided panel in Espinoza -- found that "the PMWA requires compensation for a broader range of activities, including travel time, than the FLSA." Under the regulations implementing the PMWA, travel time is compensable when it is "time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work," notes District Judge Christy Criswell Wiegand. On the other hand, under the FLSA, as amended by the Portal-to-Portal Act, employees will receive overtime pay for commuting when the commute is (1) a principal activity or (2) integral and indispensable to a principal activity. At the outset, then, the Court notes that the FLSA's "integral and indispensable" standard is different than the PMWA's requirement that travel time be "part of the duties of the employee during normal working hours." The difference is important to the analysis here because there may be situations where travel time is compensable under the FLSA that would not be under the PMWA -- and vice versa, Judge Wiegand explains. Judge Wiegand holds that the cases the Defendant relies on do not persuade the Court that the FLSA preempts the PMWA for the travel time at issue here. Judge Wiegand avers that, among other things, the court in Sarrazin v. Coastal, Inc., 89 A.3d 841 (Conn. 2014) noted that its analysis was confined "to the facts of the present case," in which the Plaintiff, a plumber, drove a company work truck to and from his home to his assigned jobsites. The Defendant also leans heavily on Espinoza, 2016 U.S. Dist. LEXIS 7561 (W.D. Pa. Jan 22, 2016), in which Magistrate Judge Maureen Kelly found that a railroad worker's long-distance travel away from home to his assigned jobsites "on days he was not scheduled to work at all" was not compensable under the PMWA. Again, as with Sarrazin, Espinoza is distinguishable from the case: The Plaintiff does not seek compensation for time spent travelling on days he was not scheduled to work, but for travel time on days he did work, Judge Wiegand explains. As the Court in Smith made clear, such time may be compensable under the PMWA. In sum, preemption is an affirmative defense which must be clear on the face of the complaint for a 12(b)(6) motion to succeed, Judge Wiegand holds. The compensability of the travel time at issue under either the PMWA or FLSA is a fact-specific inquiry, and the Defendant has not shown that the travel time protections under the PMWA are less generous than those found under the FLSA. She, therefore, determines that the Defendant has failed to carry its burden with respect to preemption at this early stage of the case. For these reasons, the Defendant's, Motion to Dismiss is denied without prejudice, and may be renewed at the summary judgment stage. A full-text copy of the Court's Memorandum Opinion and Order dated Jan. 14, 2021, is available at https://tinyurl.com/y5c34q7b from Leagle.com. GROWERSHOUSE LLC: Website Inaccessible to the Blind, Williams Says ------------------------------------------------------------------ MILTON WILLIAMS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED v. GROWERSHOUSE, L.L.C., Case No. 1:21-cv-00431-JGK (S.D.N.Y., Jan. 18, 2021) arises from the Defendant's failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people in violation of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. According to the complaint, during Plaintiff's visits to the website, https://growershouse.com/, the last occurring in December 2020, in an attempt to purchase a product from the Defendant, he encountered multiple access barriers that denied him a shopping experience similar to that of a sighted person and full and equal access to the goods and services offered to the public and made available to the public. The Plaintiff alleges that Defendant has engaged in acts of intentional discrimination and seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that its website will become and remain accessible to blind and visually-impaired consumers. GrowersHouse, L.L.C., operates the GrowersHouse online retail store across the United States. The Company's website provides consumers with access to an array of goods including information about purchasing gardening items such as houseplants, nutrients, test kits, pest control, growing kits, pumps, plant accessories and other products available online for purchase.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Michael@Gottlieb.legal Jeffrey@gottlieb.legal Dana@Gottlieb.legal HEALTH INSURANCE: March 23 Settlement Fairness Hearing Set ---------------------------------------------------------- UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CASE NO. 8:19-CV-00421-WFJ-CPT CLASS ACTION JULIAN KEIPPEL, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. HEALTH INSURANCE INNOVATIONS, INC. n/k/a BENEFYTT TECHNOLOGIES, INC., GAVIN SOUTHWELL, and MICHAEL D. HERSHBERGER, Defendants. SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT OF CLASS ACTION; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who, during the period from September 25, 2017 through April 11, 2019, inclusive, purchased or otherwise acquired Health Insurance Innovations, Inc. ("HIIQ") common stock, and were allegedly damaged thereby: Please read this notice carefully, your rights will be affected by a class action lawsuit pending in this court. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Middle District of Florida, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Class and Settlement Class, except for certain persons and entities who are excluded from the Class and Settlement Class as set forth in the full printed Notice Of (I) Pendency Of Class Action And Proposed Settlement of Class Action; (II) Settlement Hearing; And (III) Motion For An Award Of Attorneys' Fees And Reimbursement Of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $11,000,000.00 in cash (the "Settlement") that, if approved, will resolve all claims in the Action. A hearing will be held on March 23, 2021 at 9:30 a.m., by telephonic means by calling the reserved conference toll-free number at 1-888-557-8511, then entering the access code 4744914 followed by the # (pound) key, then entering the security code: 0421 followed by the # (pound) key, as posted on the website of the Claims Administrator. The hearing will determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation And Agreement Of Settlement (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel's application for an award of attorneys' fees and reimbursement of Litigation Expenses should be approved. If you file a written objection and notice of appearance before the hearing, you may ask to be heard orally at the hearing or you may appear at the hearing through an attorney you retain. This Summary Notice relates to a proposed Settlement of claims in a pending securities class action lawsuit brought by investors alleging, among other things, that Defendants HIIQ, Michael D. Hershberger, and Gavin Southwell (collectively, the "Defendants") violated the federal securities laws by making alleged misrepresentations or omissions regarding compliance and customer complaints, which Defendants deny. If you purchased HIIQ common stock from September 25, 2017 through April 11, 2019 and were damaged thereby, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Health Insurance Innovations Securities Settlement c/o Epiq, P.O. Box 5657, Portland, OR 97228-5657. Copies of the Notice and Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.HealthInsuranceInnovationsSecuritiesSettlement.com. In order to be potentially eligible to receive a payment under the proposed Settlement, you must submit a Claim Form online at the Settlement website or by mail. The Claim Form must be submitted or postmarked no later than May 11, 2021. If you do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you wish to exclude yourself, you must submit a request for exclusion such that it is received no later than March 2, 2021, in accordance with the instructions set forth in the Notice. If you properly exclude yourself, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to representatives of Lead Counsel and Defendants' Counsel such that they are received no later than March 2, 2021, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, HIIQ, or Defendants' Counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Requests for the Notice and Claim Form should be made to: Health Insurance Innovations Securities Settlement c/o Epiq P.O. Box 5657 Portland, OR 97228-5657 Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: SAXENA WHITE P.A. Brandon T. Grzandziel 7777 Glades Road, Suite 300 Boca Raton, FL 33434 bgrzandziel@saxenawhite.com Dated: December 3, 2020 By Order of the Court United States District Court Middle District of Florida URL: www.HealthInsuranceInnovationsSecuritiesSettlement.com [GN] HIGGINS BENJAMIN: Jan. 29 Extension to File Class Status Bid Sought ------------------------------------------------------------------- In the class action lawsuit captioned as MARK GOLDEN and GENEVA GOLDEN, on behalf of themselves and all others similarly situated, v. HIGGINS BENJAMIN, PLLC, Case No. 1:20-cv-00627-TDS-LPA (M.D.N.C.), the Parties ask the Court to enter an order extending the deadline for class certification until January 29, 2021 and for the Defendant's answer until February 12, 2021. On July 8, 2020, the Plaintiffs filed their class action complaint against the Defendant. On September 4, 2020, the Defendant filed its motion to dismiss. On October 7, 2020, the Plaintiffs moved to extend the class certification deadline until 14 days after the Court issues its order on the Defendant's motion to dismiss, and the Court granted the same in a text order on October 13. On January 4, 2021, the Court issued its order denying Defendant’s motion to dismiss. While Defendant's motion to dismiss remained pending before the Court, the Parties began informal discovery related to Plaintiffs' class allegation. The Parties ultimately came to a preliminary agreement as to a class settlement, and are in the process of preparing settlement documents and obtaining estimates from class action administrators. The Parties request an eleven-day extension of time to file their joint motion for class certification and preliminary approval of class settlement -- until January 29, 2020. Similarly, the Parties request the Court extend the Defendant's answer deadline until February 12, 2021 -- in the unlikely event the class settlement is not finalized. Higgins Benjamin is a law firm in Greensboro, North Carolina. A copy of joint motion for extension dated Jan. 18, 2020 is available from PacerMonitor.com at https://bit.ly/3sMgKNN at no extra charge.[CC] The Plaintiffs are represented by: Chris Brown, Esq. THOMPSON CONSUMER LAW GROUP, PC 121 Kendlewick Dr. Cary, NC 27511 Telephone: (888) 332-7252 Facsimile: (866) 317-2674 E-mail: cbrown@ThompsonConsumerLaw.com The Defendants are represented by: Joshua B. Durham, Esq. BELL, DAVIS & PITT 227 W. Trade St., Ste. 1800 Charlotte, NC 28202 Telephone: (704) 502-6275 E-mail: jdurham@belldavispitt.com HYDRO GENERATION: Williams Seeks Website Access for Blind Users --------------------------------------------------------------- MILTON WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff v. HYDRO GENERATION INC., Defendant, Case No. 1:21-cv-00433 (S.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its Website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's Website, https://atlantishydroponics.com/, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the website. These access barriers include, but not limited to: (1) lack of alternative text (alt-text), or a text equivalent, which prevents screen readers from accurately vocalizing a description of the graphics; (2) empty links that contain no text causing the function or purpose of the link to not be presented to the user; (3) redundant links where adjacent links go to the same Uniform Resource Locator (URL) address, which results in additional navigation and repetition for keyboard and screen-reader users; and (4) linked images missing alt-text, which causes problems if an image within a link contains no text and that image does not provide alt-text. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired individuals. Hydro Generation Inc. is a company that operates the Atlantis Hydroponics online retail store across the United States, with its principal executive office located at 4051 Southmeadow Parkway, Suite C, East Point, Georgia. [BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Michael@Gottlieb.legal Jeffrey@gottlieb.legal Dana@Gottlieb.legal IKEA US: Pennsylvania Court Refuses to Dismiss Dukich Suit Claims ----------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania refuses to dismiss the Plaintiffs' claims in the lawsuit entitled DIANA and JOHN DUKICH v. IKEA US RETAIL LLC, et al., Case No. 20-2182 (E.D. Pa.). Plaintiffs Diana and John Dukich have sued Defendants IKEA US Retail LLC and IKEA North America Services LLC ("IKEA") in the putative class action brought under the Class Action Fairness Act, 28 U.S.C. Section 1332(d), for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") and for negligence. These counts arise from the Plaintiffs' purchase of two IKEA dressers that were later recalled by IKEA and for which they allege they have never received the refund IKEA promised. Before the Court is the motion of IKEA to dismiss the Plaintiffs' amended complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and because of the primary jurisdiction of the United States Consumer Product Safety Commission ("CPSC"). In the alternative, it moves to strike the class allegations of any claim that is not dismissed. IKEA is a major retail chain, which designs and sells furniture. The Plaintiffs are a husband and wife couple with two young children, who purchased two four-drawer dressers of the MALM model from IKEA for approximately $100 each in or around 2012. By June 28, 2016, IKEA knew of two deaths and 13 injuries from tip-over accidents involving the MALM line of dressers, as well as deaths and injuries from other chests and dressers. That day IKEA issued a voluntary recall ("2016 recall") with the CPSC for 29 million chests and dressers, including the MALM series which the Plaintiffs had purchased. By November 21, 2017, IKEA had become aware of another death of a child from a MALM dresser tip-over and 91 more injuries, as well as deaths and injuries from other models of dressers. IKEA re-announced the recall on November 21, 2017 ("2017 recall") which subjected 17.3 million dressers to recall. In the 2017 recall, IKEA provided the same two options for either refund or a free wall-anchoring kit and specified that it will "pick up the recalled dressers free of charge or provide a one-time, free in-home wall-anchoring service" upon request. In August 2018, the Plaintiffs visited the return section of an IKEA retail store near their home in Minnesota to return their dressers, which were subject to both the 2016 and 2017 recalls, for a cash refund in the amount of the purchase price of approximately $200. The Plaintiffs allege that IKEA refused to accept the dressers, give the Plaintiffs $200 in cash as a refund, or provide any alternative refund. The Plaintiffs have stored the dressers in their garage since then due to the recalls. The Plaintiffs bring the action seeking certification of the proposed class, a full cash refund, damages for returning or disposing of the recalled products, and direct notification by IKEA to all class members of the defective nature of the chests and dressers. They do not seek damages for personal injuries or diminution in the value of the dressers. The basis for the action relates to IKEA's failure to issue a refund to the Plaintiffs and comply with the terms of the 2016 and 2017 recalls. Specifically, the Plaintiffs claim that IKEA violated the UTPCPL by engaging in unfair or deceptive acts or practices in promising refunds and failing to issue such refunds. In addition, they aver that IKEA acted negligently in voluntarily undertaking a recall and then failing to abide by its terms. At oral argument, the parties agreed that the action solely relates to the 2016 and 2017 recalls and the Plaintiffs' attempt to secure a refund for their recalled dressers. IKEA now concedes that the Plaintiffs' amended complaint states claims for relief under the UTPCPL and for negligence as relates to the refund and recalls. District Judge Harvey Bartle, III, states that it is important to note that the Plaintiffs' claims may proceed under the UTPCPL and a theory of negligence even though the Plaintiffs only plead economic injury. The Court of Appeals (Third Circuit) previously held in Werwinski v. Ford Motor Co. that the economic loss doctrine prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract. The Court of Appeals in Werwinski upheld the district court's decision that the economic loss doctrine applies to statutory fraud claims, in that case UTPCPL claims, as well as common law fraud claims. Judge Bartle opines that the economic loss doctrine does not bar the Plaintiffs' suit in this instance since this is not a matter based on contractual duties between the parties. The Plaintiffs' claims only focus on the recalls IKEA issued and the refund that the Plaintiffs allege IKEA failed to provide. Neither the recall nor refund is based on any contractual obligations between the parties. According to the amended complaint, Defendant IKEA US Retail LLC sold the Plaintiffs the dressers while IKEA North American Services LLC issued the 2016 and 2017 recalls, which offered the refund. As the Plaintiffs have pleaded common law and statutory duties independent from any contractual obligations between the parties, the economic loss doctrine does not bar these claims, Judge Bartle holds. Accordingly, the Plaintiffs' claims under the UTPCPL and for negligence may proceed as pleaded at this stage. IKEA also seeks dismissal of the action on the ground that the doctrine of primary jurisdiction favors deferring to the CPSC since the CPSC is overseeing IKEA's recalls and this suit is within the specific expertise of the CPSC. The Plaintiffs counter that it is not one of the special or unusual cases in which deferring to an agency is appropriate, especially since the relief they seek does not conflict with the CPSC's actions. Judge Bartle notes that the Court of Appeals has cautioned that federal courts should only abstain from exercising their jurisdiction in exceptional cases. He insists that it is not one of those exceptional cases. The Court is well-suited for determining whether IKEA has violated the UTPCPL or acted negligently. The case does not involve overly technical or policy considerations that demand the expertise of the CPSC. Furthermore, Judge Bartle finds, IKEA has not pointed the court to any law or regulation that the CPSC is even capable of providing a remedy for the Plaintiffs in the instance other than revoking the recall plan if IKEA is found to be non-compliant with the terms of the recall. The CPSC cannot offer the Plaintiffs the refund that they seek in the suit or award damages. Thus, the issue is not within the CPSC's particular jurisdiction nor is there a risk of inconsistent rulings between the CPSC and the Court as it has vastly different tools available to it to address the claims asserted. There is nothing before the Court to support abstention in favor of granting primary jurisdiction to the CPSC. IKEA also moves to strike the class allegations set forth in the Plaintiffs' amended complaint. The Plaintiffs seek to represent a class of all United States residents, who purchased or owned any chest or dresser included in the 2016 and 2017 recalls, regardless of whether those consumers sought a refund or repair kit under the terms of the recall and were denied like the Plaintiffs. IKEA argues that the amended complaint indicates that even with discovery the Plaintiffs will be unable to establish claims of the other members of the class without individual investigations into the circumstances of each class member. Judge Bartle holds that the dismissal of the Plaintiffs' class allegations is premature at this early stage. He avers that the Court is mindful of the analysis of the Court of Appeals in Landsman & Funk PC v. Skinder-Strauss Associates where the district court's dismissal of class certification at the motion to dismiss stage was reversed. In this matter discovery would help determine the contours and nature of the class and whether the Plaintiffs have met the requirements of Rule 23 of the Federal Rules of Civil Procedure. At oral argument, the Court raised the concern about the difficulty of maintaining a nationwide class action for a state law negligence claims because of the necessary choice of law analysis for each member of the class. It also raised questions as to the exact definition of the purported class and whether the proposed class members will have sufficient factual similarities with the named plaintiffs so as to satisfy all requirements for certification under Rule 23. There is also a question of the ascertainability of the class and whether IKEA possesses sufficient records or the Plaintiffs have other means of readily identifying members of the class. These are just some of the issues with which the Plaintiffs will have to deal at the class certification stage. Judge Bartle says the Court does not reach any conclusions on these issues at this time. The Court will be in a better position to determine whether the requirements of the Class Action Fairness Act and Rule 23 have been met once the Plaintiffs file a motion for class certification and appropriate discovery has been conducted. The Court will deny IKEA's alternative motion to strike the Plaintiffs' class allegations without prejudice. The Plaintiffs must promptly file a motion for class certification at which point the Court will schedule a conference with counsel to discuss the scope of discovery. A full-text copy of the Court's Memorandum dated Jan. 14, 2021, is available at https://tinyurl.com/y69avbwy from Leagle.com. IML LABELS: Collects Biometrics Without Consent, Opperman Claims ---------------------------------------------------------------- CHARLES OPPERMAN, individually and on behalf of all others similarly situated, Plaintiff v. IML LABELS CHICAGO, INC., Defendant, Case No. 2021L000065 (Ill. 18th Jud. Cir. Ct., Dupage Cty., January 19, 2021) is a class action against the Defendant for violations of the Illinois Biometric Information Privacy Act. The case arises from the Defendant's alleged collection, storage and use of the Plaintiff's and other similarly situated individuals' biometric identifiers and biometric information without obtaining the requisite prior informed written consent or providing the requisite data retention and destruction policies. IML Labels Chicago, Inc. is a label printing company based in Chicago, Illinois. [BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 1700 Chicago, IL 60604 Telephone: (312) 391-5059 Facsimile: (212) 686-0114 E-mail: malmstrom@whafh.com - and – Frank S. Hedin, Esq. David W. Hall, Esq. HEDIN HALL LLP 1395 Brickell Avenue, Ste. 1140 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com dhall@hedinhall.com INPHI CORP: Rosenfeld Challenges Proposed Merger With Marvell ------------------------------------------------------------- BEREL ROSENFELD v. INPHI CORPORATION, DIOSDADO P. BANATAO, NICHOLAS E. BRATHWAITE, CHENMING C. HU, DAVID E. LIDDLE, BRUCE M. MCWILLIAMS, ELISSA MURPHY, WILLIAM J. RUEHLE, SAM S. SRINIVASAN, and FORD TAMER, Case No. 5:21-cv-00486 (N.D. Cal., Jan. 20, 2021) is brought on behalf of the Plaintiff and on behalf of all others similarly situated, seeking to enjoin a vote on a proposed transaction, pursuant to which Inphi will be acquired by Marvell Technology Group Ltd. through its wholly owned subsidiaries Marvell Technology, Inc. ("HoldCo"), Maui Acquisition Company Ltd., and Indigo Acquisition Corp in violation of the Securities Exchange Act of 1934. On October 29, 2020, Inphi and Marvell issued a joint press release announcing that they had entered into an Agreement and Plan of Merger dated October 29, 2020 to sell Inphi to Marvell. Under the terms of the Merger Agreement, each holder of Inphi common stock will receive (i) $66.00 in cash, and (ii) 2.323 shares of HoldCo common stock for each share of Inphi common stock they own (the "Merger Consideration"). Upon closing of the merger, Marvell and Inphi will become wholly owned subsidiaries of HoldCo, and Holdco's shares will be listed on the Nasdaq under the symbol "MRVL." Inphi stockholders are expected to own approximately 17% of the outstanding shares of the combined company, and Marvell stockholders immediately prior to the merger are expected to own approximately 83% of the outstanding shares of the combined company. The Proposed Transaction is valued at approximately $40 billion. On December 22, 2020, Marvell filed a Form S-4 Registration Statement with the Securities and Exchange Commission (SEC). The Registration Statement, which recommends that Inphi stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning the financial projections and the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by the Company's financial advisor, Qatalyst Partners LP, the suit says. In short, unless remedied, Inphi's public stockholders will be irreparably harmed because the Registration Statement's alleged material misrepresentations and omissions prevent them from making a sufficiently informed voting or appraisal decision on the Proposed Transaction. The Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured. The Plaintiff is, and has been a continuous stockholder of Inphi. Inphi is a Delaware corporation, with its principal executive offices located at 2953 Bunker Hill Lane, Suite 300, Santa Clara, California. The Individual Defendants are officers and directors of the company.[BN] The Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 9100 Wilshire Blvd., No. 725 E. Beverly Hills, CA 90210 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 E-mail: jelkins@weisslawllp.com INTEL CORP: Continues to Defend Class Suit Over 7nm Product Delays ------------------------------------------------------------------ Intel Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on January 22, 2021, for the fiscal year ended December 26, 2020, that the company continues to defend a consolidated class action suit related to its July 2020 announcement of 7nm product delays. Starting in July 2020, five securities class action lawsuits were filed in the United States District Court for the Northern District of California against Intel and certain current and former officers based on Intel's July 2020 announcement of 7nm product delays. The plaintiffs, who purport to represent classes of acquirers of Intel stock between October 2019 and July 2020, generally allege that the defendants violated securities laws by making false and misleading statements about the timeline for 7nm products in light of subsequently announced delays. In October 2020, the court consolidated the lawsuits and appointed lead plaintiffs, and in January 2021 the lead plaintiffs filed a consolidated complaint. Intel said, "We dispute the claims described above and intend to defend the lawsuits vigorously. Given the procedural posture and the nature of these cases, including that the proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from these matters." Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTEL CORP: Spectre and Meltdown Virus-Related Suits Underway ------------------------------------------------------------- Intel Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on January 22, 2021, for the fiscal year ended December 26, 2020, that the company continues to defend suits, including class action suits related to Spectre and Meltdown virus. In June 2017, a Google research team notified the company and other companies that it had identified security vulnerabilities (commonly referred to as "Spectre" and "Meltdown") that affect many types of microprocessors, including our products. As is standard when findings like these are presented, the company worked together with other companies in the industry to verify the research and develop and validate software and firmware updates for impacted technologies. On January 3, 2018, information on the security vulnerabilities was publicly reported, before software and firmware updates to address the vulnerabilities were made widely available. Numerous lawsuits have been filed against Intel and, in certain cases, the company's current and former executives and directors, in U.S. federal and state courts and in certain courts in other countries relating to the Spectre and Meltdown security vulnerabilities, as well as other variants of these vulnerabilities that have since been identified. As of January 20, 2021, consumer class action lawsuits relating to the above class of security vulnerabilities publicly disclosed since 2018 were pending in the U.S., Canada, and Israel. The plaintiffs, who purport to represent various classes of purchasers of our products, generally claim to have been harmed by Intel's actions and/or omissions in connection with the security vulnerabilities and assert a variety of common law and statutory claims seeking monetary damages and equitable relief. In the U.S., numerous individual class action suits filed in various jurisdictions were consolidated in April 2018 for all pretrial proceedings in the U.S. District Court for the District of Oregon. In March 2020, the court granted Intel's motion to dismiss the complaint in that consolidated action but granted plaintiffs leave to amend. Plaintiffs filed an amended complaint in May 2020, which Intel moved to dismiss in July 2020; argument on the motion was heard in December 2020. In Canada, in one case pending in the Superior Court of Justice of Ontario, an initial status conference has not yet been scheduled. In a second case pending in the Superior Court of Justice of Quebec, the court has stayed the case until January 2021. In Israel, two consumer class action lawsuits were filed in the District Court of Haifa. In the first case, the District Court denied the parties' joint motion to stay filed in January 2019, but to date has deferred Intel's deadline to respond to the complaint. Intel filed a motion to stay the second case pending resolution of the consolidated proceeding in the U.S., and a hearing on that motion has been scheduled for November 2020. Additional lawsuits and claims may be asserted seeking monetary damages or other related relief. Intel said, "We dispute the pending claims described above and intend to defend those lawsuits vigorously. Given the procedural posture and the nature of those cases, including that the pending proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from those matters." Intel Corporation offers computing, networking, data storage, and communication solutions worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTELSAT CORP: Chairman Faces New Shareholder Suit Amid Class Suits ------------------------------------------------------------------- Josh Kosman, writing for New York Post, reports that the chairman of satellite operator Intelsat is being sued for insider trading in an explosive new shareholder lawsuit that also dings private-equity giants BC Partners and Silver Lake Partners, a New York Knicks shareholder. The Oakland, Calif., federal court lawsuit claims that David McGlade, Intelsat's chairman and former CEO, sold stock in the satellite operator on Nov. 5, 2019 -- mere hours after the company's CEO learned that the Federal Communications Commission was leaning against a proposal that would have earned the company billions. McGlade made the trade -- together with fellow Intelsat insiders Silver Lake and BC Partners -- via a $246 million block sale of 10 million shares, the lawsuit says. Weeks later, on Nov. 18, the FCC rejected Intelsat's proposal to run the sale of government-owned airwaves it had been using for TV and radio communications -- squashing its dreams of a $7 billion-plus windfall. By May, the company had filed for bankruptcy protection. The stock, which had been trading at around $23 a share ahead of the insider selling, closed on Jan. 15 at 72 cents a share. "This is the quintessential insider trading case," read the lawsuit filed by law firm Labaton Sucharow on behalf of Intelsat shareholder Walleye Group. "Intelsat, a satellite operator, was successfully pursuing a bet-the-company-deal with the FCC. Its board chairman, defendant David McGlade, and its two largest shareholders, defendants BC Partners and Silver Lake, sold $246 million in stock the very same day they learned the FCC was turning against the deal." As The Post first reported in March, Intelsat shareholders have been fuming over the $246 million block sale since first learning that it took place the same day Intelsat's chief executive, Stephen Spengler, met with the FCC's senior counsel, Nicholas Degani, to discuss Intelsat's ill-fated plans to profit off a government-owned telecom asset. But shareholders had previously believed that only BC Partners and Silver Lake were behind the trades -- claims that resulted in a couple of class-action lawsuits filed against the firms last year. The Jan. 15 lawsuit, which joins the earlier cases, cites an anonymous ex-Intelsat executive who says Spengler told him that the FCC was going in a different direction from the one proposed by Intelsat "just after" the Nov. 5 meeting. The exec "surmised it must have been one of the top three worst meetings Spengler ever had," the lawsuit said. Leading up to the meeting, Intelsat and a band of satellite operators had been proposing to help the government repurpose spectrum they had been using for a nationwide 5G wireless network by selling it via a private auction. The FCC under Ajit Pai seemed amenable to the plan until it started to receive pushback from Sen. John Kennedy (R-La.), who advocated for a public auction that would enrich government coffers instead of private industry. "Shelling out billions for airwaves we already own is no way to handle taxpayer money," Kennedy said publicly at the time. "These foreign satellite firms want all four feet and their snout in the taxpayer trough." Kennedy reportedly made his concerns known to Trump days before the Nov. 5 meeting. "Just hours after that meeting, defendants began selling $246 million in stock in an overnight fire sale, avoiding over $185 million in losses that investors suffered as Intelsat promptly collapsed," the lawsuit claimed. The suit cites e-mails from Morgan Stanley, which brokered the trade, and an interview with the anonymous ex-Intelsat exec, who says he learned about the Nov. 5 block sale after noticing the high volume of trades on a New York Stock Exchange internal system, which he later discussed with CFO David Tolley, who only learned about them from the staffer. The former executive recalled feeling that the trading was "outrageous" and that it was "obvious" that the insiders had been updated about the meeting, according to the suit. The lawsuit doesn't say how many shares McGlade might have sold, and he didn't return requests for comment. McGlade, who was responsible for government outreach and advising the CEO on business and policy issues, owned 4.5 million Intelsat shares in 2018. BC Partners also didn't return requests for comment but previously told The Post that the trades were "based solely on available public information." BC's two Intelsat directors -- Raymond Svider and Justin Bateman -- either didn't return comment or couldn't be reached. Bateman last month left BC Partners after 20 years, sources told The Post. Silver Lake, which owns a 7.5 percent stake in Madison Square Garden, declined to comment. The firm didn't have Intelsat board seats but had a contract that gave it special rights to information, including board meeting materials, the suit says. Silver Lake has also come under fire for its well-timed sale of $158 million shares of software provider SolarWinds six days before it emerged that the company was subject of a massive hack, sending the shares down 40 percent. "Silver Lake is a large shareholder of SolarWinds, just as in this case, and once again they are entitled to board level information about the company," the Intelsat suit says. SolarWinds has said it was not made aware of the hack at the time of the Silver Lake sale. Silver Lake pointed to a statement from private-equity firm Thoma Bravo, which sold SolarWinds shares in the same Dec. 7 transaction. "We were not aware of this potential cyberattack at SolarWinds prior to entering into a private placement to a single institutional investor on Dec. 7," Thoma Bravo said. "Silver Lake is a large shareholder of SolarWinds, just as in this case, and once again they are entitled to board level information about the company," the Intelsat suit says. A hedge fund manager who was a large Intelsat shareholder in Nov. 2019 told The Post he was astonished by the SolarWinds news and does believe it represents a pattern. He is not part of the suit against Silver Lake, though he believes its trading in Intelsat was highly suspicious. Silver Lake declined comment on the Intelsat allegations. The firm pointed to a statement on the SolarWinds allegation from fellow PE firm Thoma Bravo that also sold SolarWinds shares in the same Dec. 7 transaction. "We were not aware of this potential cyberattack at SolarWinds prior to entering into a private placement to a single institutional investor on Dec. 7," Thoma Bravo said. [GN] JABU CO: Blind Users Can't Access Website, Williams Suit Claims --------------------------------------------------------------- MILTON WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff v. JABU CO., Defendant, Case No. 1:21-cv-00429-ER (S.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its Website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's Website, https://www.horizenhydroponics.com/, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the Website. These access barriers include, but not limited to: (1) lack of alternative text (alt-text), or a text equivalent, which prevents screen readers from accurately vocalizing a description of the graphics; (2) empty links that contain no text causing the function or purpose of the link to not be presented to the user; (3) redundant links where adjacent links go to the same Uniform Resource Locator (URL) address, which results in additional navigation and repetition for keyboard and screen-reader users; and (4) linked images missing alt-text, which causes problems if an image within a link contains no text and that image does not provide alt-text. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired individuals. Jabu Co. is a company that operates the Horizen Hydroponics online retail store across the United States, with its principal executive office located at 2200 Alpine Ave. NW, Walker, Michigan. [BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Michael@Gottlieb.legal Jeffrey@gottlieb.legal Dana@Gottlieb.legal JACOBO FARM: Class Cert. Schedule Conference Continued to Feb. 10 ----------------------------------------------------------------- In the class action lawsuit captioned as Gomez v. J. Jacobo Farm Labor Contractor, Inc. et al., Case No. 1:15-cv-01489 (E.D. Cal.), the Hon. Judge Anthony W. Ishii entered an order continuing scheduling conference to February 10, 2021. -- The parties shall meet and confer in advance of the conference regarding proposed scheduling dates, including any dates for merits discovery, expert discovery, dispositive motions, a pretrial conference and trial. -- At least seven days prior to the conference, the parties shall file a Joint Scheduling Report with proposed dates for the Courts consideration. -- The parties shall appear at the conference with each party connecting remotely either via Zoom video conference or Zoom telephone number. The nature of suit states Labor - Other Labor Litigation involving Farmworker Rights. The Defendant is a licensed and bonded freight shipping and trucking company running freight hauling business from Selma, California.[CC] JELD-WEN HOLDING: Mississippi PERS, et al., Seek to Certify Class ----------------------------------------------------------------- In the class action lawsuit re JELD-WEN HOLDING, INC. SECURITIES LITIGATION, Case No. 3:20-cv-00112-JAG (E.D. Va.), the Lead Plaintiffs Public Employees' Retirement System of Mississippi ("Mississippi PERS") and Plumbers & Pipefitters National Pension Fund ("PPNPF"), along with Additional Plaintiff Wisconsin Laborers' Pension Fund ("WLPF") ask the Court to enter an order: 1. certifying a class under Federal Rules of Civil Procedure 23(a) and (b)(3), on behalf of: "all persons and entities who or which, during the period from January 26, 2017 through October 15, 2018, inclusive purchased the publicly traded common stock of Jeld-Wen Holding, Inc.;" 2. appointing the Plaintiffs Mississippi PERS, PPNPF, and WLPF as Class Representatives, 3. appointing Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP as Class Counsel pursuant to Federal Rule of Civil Procedure 23(g); and 4. appointing Cohen Milstein Sellers & Toll PLLC as Liaison Counsel. The Plaintiffs contend that during the proposed Class Period, over 100 million shares of Jeld-Wen common stock were outstanding and were actively traded on the New York Stock Exchange (NYSE). There are likely thousands of Class members who were harmed by the conduct of Jeld-Wen and certain of its officers and directors and controlling shareholder Onex. Jeld-Wen, one of the world's largest door and window manufacturers, makes and sells interior molded doors, the most popular type of interior door in North America. A copy of the plaintiffs' motion for class certification dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/2Y5tEsj at no extra charge.[CC] Liaison Counsel for Lead Plaintiffs, are: Steven J. Toll, Esq. Joshua Handelsman, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: stoll@cohenmilstein.com jhandelsman@cohenmilstein.com Counsel for Co-Lead Plaintiff Plumbers and Pipefitters National Pension Fund, Additional Plaintiff Wisconsin Laborers’ Pension Fund, and the Class, are: Robert M. Rothman, Esq. Debra Wyman, Esq. Mark T. Millkey, Esq. Francis P. Karam, Esq. William J. Geddish, 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: rrothman@rgrdlaw.com debraw@rgrdlaw.com mmillkey@rgrdlaw.com fkaram@rgrdlaw.com wgeddish@rgrdlaw.com Counsel for Co-Lead Plaintiff Public Employees' Retirement System of Mississippi and the Class, are: James W. Johnson, Esq. Michael H. Rogers, Esq. James T. Christie, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907 0700 Facsimile: (212) 818 0477 E-mail: jjohnson@labaton.com mrogers@labaton.com jchristie@labaton.com K12 INC: Gross Law Firm Announces Securities Class Action Filing ---------------------------------------------------------------- The securities litigation law firm of The Gross Law Firm issues the following notice on behalf of shareholders in the following publicly traded companies. Shareholders who purchased shares in the following companies during the dates listed are encouraged to contact the firm regarding possible Lead Plaintiff appointment. Appointment as Lead Plaintiff is not required to partake in any recovery. K12 Inc. (NYSE:LRN) Investors Affected: April 27, 2020 - September 18, 2020 A class action has commenced on behalf of certain shareholders in K12 Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (i) K12 lacked the technological capabilities, infrastructures, and expertise to support the increased demand for virtual and blended education necessitated by the global pandemic; (ii) K12 lacked adequate cyberattack protocols and protections to prevent the disabling of its computer system; (iii) K12 was unable provide the necessary levels of administrative support and training to teachers, students, and parents; and (iv) based on the foregoing, Defendants lacked a reasonable basis for their positive statements about the Company's business, operations, and prospects and/or lacked a reasonable basis and omitted facts. Shareholders may find more information at https://securitiesclasslaw.com/securities/k12inc-loss-submission-form/?id=12216&from=1 Northern Dynasty Minerals Ltd. (NYSE:NAK) Investors Affected: December 21, 2017 - November 25, 2020 A class action has commenced on behalf of certain shareholders in Northern Dynasty Minerals Ltd. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) the Company's Pebble Project was contrary to Clean Water Act guidelines and to the public interest; (2) the Company planned that the Pebble Project would be larger in duration and scope than conveyed to the public; (3) as a result, the Company's permit applications for the Pebble Project would be denied by the U.S. Army Corps of Engineers; and (4) as a result, Defendants' public statements were materially false and/or misleading at all relevant times. Shareholders may find more information at https://securitiesclasslaw.com/securities/northern-dynasty-minerals-ltd-loss-submission-form/?id=12216&from=1 CD Projekt S.A. (OTC PINK:OTGLY) Investors Affected: January 16, 2020 - December 17, 2020 A class action has commenced on behalf of certain shareholders in CD Projekt SA. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: Throughout the class period, defendants were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Cyberpunk 2077 was virtually unplayable on the current-generation Xbox or Playstation systems due to an enormous number of bugs; (2) as a result, Sony would remove Cyberpunk 2077 from the Playstation store, and Sony, Microsoft and the Company would be forced to offer full refunds for the game; (3) consequently, the Company would suffer reputational and pecuniary harm; and (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. Shareholders may find more information at https://securitiesclasslaw.com/securities/cd-projekt-s-a-loss-submission-form/?id=12216&from=1 The Gross Law Firm is committed to ensuring that companies adhere to responsible business practices and engage in good corporate citizenship. The firm seeks recovery on behalf of investors who incurred losses when false and/or misleading statements or the omission of material information by a Company lead to artificial inflation of the Company's stock. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: The Gross Law Firm 15 West 38th Street, 12th floor New York, NY, 10018 Email: dg@securitiesclasslaw.com Phone: (212) 537-9430 Fax: (833) 862-7770 [GN] KANEX INC: Rakhmanin Labor Suit Moved From N.D.N.Y. to E.D.N.Y. --------------------------------------------------------------- The case captioned as SERGEI RAKHMANIN, NATALIA STEPANOVA and SVETLANA LARINA, individually and on behalf of all others similarly situated v. KANEX INC. d/b/a GRAND MOUNTAIN HOTEL, ALEX SMUSHKOVICH and TATYANA RUGANOVICH, jointly and severally, Case No. 1:20-cv-01287, was transferred from the U.S. District Court for the Northern District of New York to the U.S. District Court for the Eastern District of New York on January 19, 2021. The Clerk of Court for the Eastern District of New York assigned Case No. 1:21-cv-00275-WFK-SJB to the proceeding. The case arises from the Defendants' alleged violations of the New York Labor Law and the Fair Labor Standards Act by failing to pay the minimum wage, failing to pay overtime premium pay, failing to pay spread-of-hours pay, unlawfully retaining gratuities, failing to provide payrate and payday notice, and failing to provide an accurate wage statement. Kanex Inc., doing business as Grand Mountain Hotel, is a hotel owner and operator, with its principal place of business located at 22 Mountaindale Road, Greenfield Park, Ulster County, New York. [BN] The Plaintiffs are represented by: Douglas B. Lipsky, Esq. Milana Dostanitch, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Telephone: (212) 392-4772 E-mail: doug@lipskylowe.com milana@lipskylowe.com KIMBERLY-CLARK: March 16 Deadline for Filing of Second Amended Suit ------------------------------------------------------------------- In the class action lawsuit captioned as MELISSA ARMSTRONG, ROLAND NADEAU, KARYN RAY, LINDA GORDAN, ERIK HEINRICH, SANDRA GREEN, and RUTH BOGUE, individually and on behalf of other similarly situated persons, v. KIMBERLY-CLARK CORPORATION, Case No. 3:20-cv-03150-M (N.D. Tex.), the Hon. Judge Barbara M. G. Lynn entered an order granting the parties' "Joint Motion to Set Briefing Schedule, to Permit the Parties to File Briefs in Excess of the Page Limitations, and to Extend Plaintiffs' Deadline to Move for Class Certification," as follows: 1. The January 19, 2021 due date for Kimberly-Clark's responsive pleading to the First Amended Complaint is vacated. 2. The Plaintiff shall file a second amended complaint on or before March 16, 2021. 3. Kimberly-Clark shall file a responsive pleading to the second amended complaint on or before April 15, 2021. Kimberly-Clark's page limit for its opening brief is extended to 35 pages in total. 4. The Plaintiffs shall file an opposition brief on or before May 14, 2021. The Plaintiffs' page limit for their opposition brief is extended to 35 pages in total. 5. Kimberly-Clark shall file a reply brief, if any, on or before May 28, 2021. Kimberly-Clark's page limit for its reply brief is extended to 15 pages in total. 6. The Court vacates the deadline for class certification motions pursuant to Local Rule 23.2 and orders that the parties propose deadline(s) for class certification motions as part of their Report for Contents of Scheduling Order, due March 8, 2021. Kimberly-Clark is an American multinational personal care corporation that produces mostly paper-based consumer products. The company manufactures sanitary paper products and surgical & medical instruments. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3iGr318 at no extra charge.[CC] L'OREAL USA: Young Consumer Suit Moved From N.D. Cal. to S.D.N.Y. ----------------------------------------------------------------- The case captioned as RENEE YOUNG and ROXANE TIERNEY, individually and on behalf of all others similarly situated v. L'OREAL USA, INC., Case No. 4:20-cv-00944, was transferred from the U.S. District Court for the Northern District of California to the U.S. District Court for the Southern District of New York on January 19, 2021. The Clerk of Court for the Southern District of New York assigned Case No. 1:21-cv-00446-GHW to the proceeding. The case arises from the Defendant's alleged violations of the California's Consumer Legal Remedies Act, the California's Unfair Competition Law, the California's Song-Beverly Consumer Warranty Act, breach of implied warranty of merchantability and unjust enrichment by marketing and selling liquid cosmetic products in defective manual pumping bottles. L'Oreal USA, Inc. is a manufacturer of cosmetics products headquartered in New York, New York. [BN] The Plaintiffs are represented by: Laurence D. King, Esq. Matthew B. George, Esq. Mario M. Choi, Esq. KAPLAN FOX & KILSHEIMER LLP 1999 Harrison Street, Suite 1560 Oakland, CA 94612 Telephone: (415) -772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com mgeorge@kaplanfox.com mchoi@kaplanfox.com - and – Karen E. Snyder, Esq. Paul D. Snyder, Esq. SNYDER LAW FIRM LLC 10955 Lowell Ave., Suite 710 Overland Park, KS 66210 Telephone: (913) 685-3900 Facsimile: (913) 440-0724 E-mail: ksnyder@snyderlawfirmllc.com psnyder@snyderlawfirmllc.com - and – Matt Dameron, Esq. Amy R. Jackson, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 E-mail: matt@williamsdirks.com LAKESIDE MEDICAL: Sends Unsolicited Text Messages, Moore Suit Says ------------------------------------------------------------------ DREW MOORE, individually and on behalf of all others similarly situated, Plaintiff v. LAKESIDE MEDICAL GROUP, INC., and DOES 1 through 10, inclusive, Defendants, Case No. 2:21-cv-00462 (C.D. Cal., January 18, 2021) is a class action against the Defendants for violations of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff and Class members received unsolicited marketing text messages from the Defendant on their cellular telephone numbers using an automatic telephone dialing system without their prior express consent. As a result of the Defendant's illegal conduct, the privacy of the Plaintiff and Class members was invaded and they incurred certain cellular telephone charges or reduced telephone time. Lakeside Medical Group, Inc. is a healthcare provider based in California. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com LASIK VISION: Extension of Class Cert. Related Deadlines Sought --------------------------------------------------------------- In the class action lawsuit captioned as TAMARA WILLIAMS, an individual, on behalf of herself and all similarly situated persons, v. THE LASIK VISION INSTITUTE, LLC, et al., Case No. 2:20-cv-02402-JPM-tmp (W.D. Tenn.), the Parties ask the Court to enter an order extending the deadlines presently in place related to class certification, as set forth in the Amended Scheduling Order, which was entered on September 2, 2020. The parties request that the Court enter an order modifying the Amended Scheduling Order and setting the following deadlines: 1. Completing All Discovery Relating May 12, 2021 to Class Action Issues: 2. Motion for Class Certification: June 11, 2021 3. Response to Motion for July 9, 2021 Class Certification: 4. Reply in Support of Class: July 23, 2021 Certification: Specifically, because of delays associated with class-related discovery, the parties request that the Court enter an order moving the current deadlines of February 12, 2021, for completing all discovery relating to class action issues, and of March 12, 2021, for the filing of Plaintiff's motion for class certification, as well as corresponding deadlines to respond to and file a reply in support of that forthcoming motion. The parties state that, despite the diligent and ongoing work of the the Defendants and the collective cooperation of the parties, there have been numerous delays and issues related to the Defendants' obtaining documents and information relevant to class certification issues for production to the Plaintiff's counsel. These delays have been caused almost exclusively by difficulties and logistical issues relating to the bankruptcy and subsequent Asset Purchase Agreement through which Kismet New Vision Holdings, LLC, purchased the records and other documents relevant to the Tennessee centers at issue in this lawsuit. The Defendants have been unable to gain access to the medical records and billing or payment information of a portion of the putative class members. The parties have scheduled one deposition for January 29, 2021; however, they anticipate taking several additional depositions in order to have the information necessary to file and defend against, respectively, a class certification motion. These additional depositions cannot reasonably go forward until further written discovery is completed, the Parties contend. A copy of the joint motion to modify the amended scheduling order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3odu1f1 at no extra charge.[CC] The Plaintiffs are represented by: Frank L. Watson, III, Esq. William F. Burns, Esq. William E. Routt, Esq. WATSON BURNS, PLLC 253 Adams Avenue Memphis, TN 38103 Telephone: (901) 529-7996 Facsimile: (901) 529-7998 E-mail: fwatson@watsonburns.com bbums@watsonburns.com wroutt@watsonburns.com - and - John Timothy Edwards, Esq. BALLIN BALLIN & FISHMAN, P.C. Suite 1250 200 Jefferson Ave. Memphis, TN 38103 Telephone: (901) 525-6278 Facsimile: (901) 525-6294 E-mail: tedwards@bbfpc.com Attorneys for the Defendants The Lasik Vision Institute, LLC, LVI Intermediate Holdings, Inc., d/b/a Vision Group Holdings, LLC, LVI Super Intermediate Holdings, Inc., Mark Jamie Cohen, Avi Wallerstein, Lisa Ann Melamed, Raymond R. Monteleone, Ben L. Cook, Mark A. Hockenson, William Wolz, Chris Folsom, and Erika Jackson, are: Wells Trompeter, Esq. W. David Bridgers, Esq. WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, TN 37219 Telephone (615) 244-6380 Facsimile (615) 244-6804 E-mail: David.Bridgers@wallerlaw.com Wells.Trompeter@wallerlaw.com Attorneys for the Defendants James M. Rynerson, M.D. and James M. Rynerson, M.D., PSC, are: Craig C. Conley, Esq. Robert F. Tom, Esq. Zachary A. Kisber, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 577-2290 Facsimile: (901) 577-0830 E-mail: CConley@bakerdonelson.com RTom@bakerdonelson.com ZKisber@bakerdonelson.com LIBERTY MUTUAL: California Court Refuses to Remand Marano Suit -------------------------------------------------------------- The U.S. District Court for the Central District of California denies the Plaintiff's motion to remand to state court his lawsuit titled STEPHEN MARANO, individually and on behalf of all others similarly situated v. LIBERTY MUTUAL GROUP, INC. and DOES 1 to 50, Case No. SACV 20-02215-CJC (ADSx) (C.D. Cal.). Plaintiff Marano filed the putative wage-and-hour class action against Defendant Liberty Mutual and unnamed Does in the Superior Court of the State of California for the County of Orange. The Defendant removed the action to the Court pursuant to the Class Action Fairness Act of 2005. The Plaintiff, a non-exempt Sales Representative employed by the Defendant, alleges that it failed to pay him for all hours worked, including overtime and missed meal periods or rest breaks. In the case, he asserts eight claims under California's Labor Code, including failure to pay all wages due and failure to pay overtime wages. He asserts these claims on behalf of a proposed class of "all individuals who are or were employed by Defendant in California as Sales Representatives and equivalent positions from four years prior to the filing of this Complaint through the date of trial." The Defendant removed the case to the Court, contending that the Court has CAFA jurisdiction because minimum diversity is met, there are over 100 class members, and the amount in controversy exceeds $5 million. The Court now considers the Plaintiff's motion to remand to state court, in which he argues that the Defendant has failed to meet its burden to show the amount in controversy. The Plaintiff contends that the case must be remanded because the Defendant has not properly established that the amount in controversy exceeds $5 million. The Defendant contends the amount in controversy exceeds $7 million. Based on the Plaintiff's allegations, the Defendant assumes a violation rate of four hours of uncompensated overtime per workweek and three missed meal breaks and three missed rest breaks per week. The Defendant also assumes that 100% of pay periods resulted in a wage statement penalty or penalties for failure to pay wages timely and $70 in unreimbursed expenses per month. In support of its calculations, the Defendant submits declarations from Serena Wannemacher, a business analyst for the Defendant, and Shannon Labadie, a payroll project manager for the Defendant. Wannemacher offers the following facts based on her review of Company records: (1) as of September 30, 2020, 175 individuals were within the scope of the class definition in the complaint, (2) all of these employees were full-time employees, (3) these employees had an average pay rate of $15.35 an hour, (4) based on her calculation, these employees worked a total of 16,666.17 workweeks. After her review of company records, Labadie estimates that if the putative class members worked an additional four hours a week, they would have earned an average of $89.11 in overtime on commissions and bonuses per workweek, in addition to overtime earned on their base salary. Based on Wannemacher's analysis, the Defendant estimates an alleged $1,535,287.58 in unpaid overtime on base hour wages, an alleged $1,485,122.41 in unpaid overtime on commissions and bonuses, and an alleged $1,534,954.26 in unpaid meal and rest period premiums. It also estimates an alleged $314,370 in unreimbursed expenses, an alleged $225,950.00 in Section 266 penalties, and an alleged $451,900.00 in Section 210 penalties. Taken together, this suggests an amount in controversy of over $5 million before considering potential attorneys' fees. The Court finds the Defendant's calculations are based on reasonable assumptions grounded in the allegations of the Complaint. The amount in controversy considers the amount in dispute, not the amount that a plaintiff is likely to recover, citing Lewis v. Verizon Commc'ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010). District Judge Cormac J. Carney opines that the Defendant's assumed violation rates are grounded in the broad allegation that these violations as part of its "consistent policy" and the specific allegations involving its various schemes to underpay employees. Furthermore, the Defendant's assumption of a wage statement penalty on 100% of pay periods is supported by the Plaintiff's allegation that the Defendant failed to ever pay him and the Class Members all wages due. The Defendant's showing is sufficient to satisfy CAFA's amount-in-controversy requirement, the Judge holds.s The Plaintiff also argues that the Notice of Removal must fail because it "relies entirely on a patchwork of guesses and generalizations" and the Defendant's calculations are based on self-serving assumptions lacking adequate evidentiary support. The Court disagrees. As Judge Carney explained, the Defendant has provided evidence: declarations from knowledgeable employees based on their analysis of regularly kept and created business records, and the Defendant properly estimated violation rates based on reasonable assumptions grounded in the Complaint. As such, the declarations submitted and the Defendant's reasonable assumptions are sufficient to show by a preponderance of the evidence that the amount in controversy exceeds $5 million. For these reasons, the Defendant has carried its burden to show that the Court has subject matter jurisdiction over the action under CAFA. Accordingly, the Plaintiff's motion to remand is denied. A full-text copy of the Court's Order dated Jan. 14, 2021, is available at https://tinyurl.com/y4ycqtn5 from Leagle.com. LLOYD'S LONDON: E.D. Pennsylvania Dismisses IRG Insurance Suit -------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania grants the Defendant's motion to dismiss the lawsuit titled INDEPENDENCE RESTAURANT GROUP D/B/A/INDEPENDENCE BEER GARDEN on behalf of itself and All others similarly situated v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, Case No. 20-2365 (E.D. Pa.). Aside from its devastating impact on the health and lives of people across the globe, the COVID-19 pandemic has also wreaked havoc on the livelihoods of business owners and employees. Plaintiff Independence Restaurant Group brings the putative class action suit, on behalf of itself and others similarly situated, seeking a declaratory judgment that its continuing business losses caused by COVID-19 and related government orders are covered under its insurance policy with Certain Underwriters at Lloyd's, London. Plaintiff IRG owns and operates Independence Beer Garden, a restaurant/beer garden on Independence Mall in Philadelphia, Pennsylvania. IRG alleges that it has been unable to operate its business as a result of governmental orders and/or the COVID-19 pandemic. Because of the virus and related government orders, its business has remained closed for an extended period of time and, since reopening, IRG has been required to comply with income-losing restrictions and capacity limitations. IRG had an insurance policy with Lloyd's from August 14, 2019, until August 14, 2020, and has faithfully paid its premiums. IRG's insurance policy is an "all risk" policy, which provides coverage for all covered causes of loss unless a cause of loss is specifically excluded or limited in the policy. The general insuring clause of the policy provides that Lloyd's "will pay for direct physical loss of or damage to Covered Property at the Premises described in the Declarations caused by or resulting from any Covered Cause of Loss." "Covered Cause of Loss," in turn, is defined as "Risks of Direct Physical Loss unless the Loss is" otherwise excluded or limited. The Policy also provides for business income coverage. Separately, the Policy provides for "Civil Authority Coverage." As potentially relevant here, the Policy also contains a microorganism exclusion and two pollution exclusions that exclude coverage for otherwise covered losses. IRG timely submitted a claim for business income and related losses under its insurance policy on March 31, alleging losses arising from the COVID-19 pandemic and government orders. Six weeks later, IRG filed the instant action. The complaint alleges that Lloyd's has failed to provide coverage under the Policy and has told the Plaintiff's counsel that coverage does not exist. IRG seeks declaratory relief on behalf of itself and other businesses in Pennsylvania that are insured by Lloyd's under similar policies and that have also suffered business losses from the COVID-19 pandemic or the government orders. It sks the Court to declare that the COVID-19 pandemic and the government orders trigger coverage under the Policy and that the Policy provides coverage to IRG and the class members for any current, future and continued business interruptions stemming from the COVID-19 pandemic. In its motion to dismiss, Lloyd's argues that IRG has not and cannot show its claim falls within the Policy's grant of coverage. IRG responds that it has sufficiently alleged facts that, under its reasonable interpretation of the Policy, trigger coverage or at minimum allow it to proceed past the motion to dismiss stage. IRG alleges that it suffered "a complete deprivation of use, access, presence and operation" of its property, that it was "physically restrained and prohibited from operating the property," and that it has been limited in its use of its property and unable to use it for its intended purpose. Its losses are allegedly caused by the government orders and the COVID-19 pandemic. District Judge Chad F. Kenney opines that these are not covered losses within the meaning of the Policy. With respect to the government orders, even assuming they had rendered IRG's property uninhabitable or nearly eliminated or destroyed its function, loss of use caused by government orders cannot constitute "direct physical loss of property." IRG also alleges that its property is at imminent threat of being contaminated by the virus. But those allegations also do not meet the requisite threshold, Judge Kenney holds. While IRG alleges that it has suffered a complete loss of its property's functionality and use, other allegations show that neither the virus itself nor any imminent threat of its presence has "nearly eliminated or destroyed" its functionality or rendered it "useless or uninhabitable." Rather, IRG's business reopened (albeit with restrictions and limited capacity) once the government orders lifted showing that the government orders addressing the virus rather than the virus itself was the source seriously affecting the property's functionality. IRG also argues that its losses are covered because the Policy does not include a virus exclusion present in some other property insurance policies. But "a loss which does not properly fall within the coverage clause cannot be regarded as covered thereby merely because it is not within any of the specific exceptions." And it is at least plausible that the physical manifestation of some type of virus could cause covered losses. That situation is just not present in the case, Judge Kenney points out. The Court recognizes that some courts in other jurisdictions over the last few months have either found coverage under similar policies or allowed cases to survive motions to dismiss. But upon review of those non-binding cases, the Policy itself, and relevant Third Circuit caselaw, the Court believes the course it adopts today is the correct one. Accordingly, IRG has not met its burden to show prima facie coverage under the Business Income Coverage provision. IRG also alleges that its business losses are covered under the Policy's Civil Authority Coverage provision. Lloyd's argues that IRG's complaint does not allege such loss or damage and that access to its property was not prohibited because of such loss or damage. IRG argues the government prohibited the public from the premises of its restaurant, that the primary purpose of the government orders was to "mitigate and ultimately stop the spread of property loss already caused by COVID-19," and that it sufficiently alleged damage to property in and around IRG's property. The Court agrees with Lloyd's that there is no coverage under the Civil Authority Coverage provision. Judge Kenney holds that the government orders did not prohibit access to the described premises. IRG alleges that it meets this requirement because the public was barred from its premises. But neither IRG, its employees, nor the public was barred from the premises. For these reasons, IRG has failed to meet its burden to show prima facie coverage under its insurance policy. Therefore, the Court will not shift the burden to Lloyd's to determine whether an exclusion precludes coverage where it otherwise exists. The Court will not grant IRG leave to amend its complaint because IRG can allege no facts related to its Policy, its losses, or the reasons for its losses that could bring its claim within the coverage of its insurance policy. Hence, IRG is not entitled to coverage for the losses it suffered. Its claim for declaratory relief will, accordingly, be dismissed with prejudice as to IRG and without prejudice as to the putative class. A full-text copy of the Court's Memorandum dated Jan. 14, 2021, is available at https://tinyurl.com/y3tkfj68 from Leagle.com. LOANCARE LLC: Alvarez FCCPA & FDUTPA Class Status Bid Nixed ----------------------------------------------------------- In the class action lawsuit captioned as DONNA ALVAREZ v. LOANCARE LLC, Case No. 1:20-cv-21837-CMA (S.D. Fla.), the Hon. Judge Cecilia M. Altonaga entered an order denying the Plaintiff's Motion for Class Certification: -- Florida Consumer Collection Practices Act (FCCPA) Class: "all persons who are borrowers or co-borrowers on a residential mortgage loan owned or serviced by LoanCare on property located in Florida who, since May 1, 2018, LoanCare charged, collected, or attempted to collect a processing fee for making a mortgage payment over the phone or online"; and -- Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Class: "all persons who are borrowers or co-borrowers on a residential mortgage loan owned or serviced by LoanCare on property located in Florida who, since May 1, 2016, LoanCare charged, collected, or attempted to collect a processing fee for making a mortgage payment over the phone or online." The Court says that Plaintiff fails to satisfy the commonality requirement of Federal Rule of Civil Procedure 23(a)(3) and does not show certification is appropriate under either Rule 23(b)(2) or (b)(3). The Plaintiff brought this putative class action challenging the collection of processing fees for making mortgage payments by phone or online, as practiced by the Defendant, a mortgage sub-servicer. Previously, the Court partially granted a Motion to Dismiss, narrowing the Plaintiff’s claims to two: violations of the FCCPA; and violations of the FDUTPA). The Defendant is a Virginia limited liability company with a principal place of business in Virginia Beach, Virginia. The Defendant is a mortgage sub-servicer, performing loan servicing for a master servicer under a sub-servicer agreement. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3oaPa9E at no extra charge.[CC] LOS PRADOS: Meza FLSA Suit Seeks Unpaid Overtime Premium for Bakers ------------------------------------------------------------------- RUBEN MEZA, individually and on behalf of all others similarly situated, Plaintiff v. LOS PRADOS, INC. d/b/a CARNICERIA LOS PRADOS and RODOLFO PRADO, Defendants, Case No. 1:21-cv-00278-CAP (N.D. Ga., January 19, 2021) is a class action against the Defendant for violations of the Fair Labor Standards Act including failing to compensate the Plaintiff and Class members overtime pay for all hours worked in excess of 40 hours in a workweek. The Plaintiff was employed by the Defendants as a baker at Carniceria Los Prados in Mableton, Georgia from December 1, 2018 to October 15, 2020. Los Prados, Inc. is an owner and operator of a grocery store called Carniceria Los Prados located at 7017 Mableton Parkway, S.E., Mableton, Georgia. [BN] The Plaintiff is represented by: Brandon A. Thomas, Esq. THE LAW OFFICES OF BRANDON A. THOMAS, PC 1 Glenlake Parkway, Suite 650 Atlanta, GA 30328 Telephone: (678) 330-2909 Facsimile: (678) 638-6201 E-mail: brandon@overtimeclaimslawyer.com LOUISVILLE, KY: Faces Inmates' Class Suit Over Release System ------------------------------------------------------------- WLKY reports that an attorney expects "thousands" will join a lawsuit aimed at Louisville Metro Corrections after a federal judge cleared the way for a class action on Jan. 15. The lawsuit alleges one plaintiff was kept in jail for six days after charges against her were dismissed. Another plaintiff says he was not set free until three days after a judge ordered him released on his own recognizance. "They want the system changed," said attorney Jim Ballinger, who first filed the lawsuit on behalf of his clients in 2017. "They want it changed to where people get out of jail when they're supposed to." Ballinger expects "thousands" to join the class action lawsuit because his review of just four months of LMDC records, including 8,437 releases, found 3,435 late releases. A spokesperson for Louisville Metro Corrections said they cannot comment on pending lawsuits. [GN] MARATHON OIL: Objection to Magistrate's Order in Kunneman Overruled ------------------------------------------------------------------- In the lawsuit captioned as KUNNEMAN PROPERTIES LLC, DJM FAMILY, LLC, ROYSE FAMILY, L.L.C., and JAMES CANON, on behalf of themselves and all others similarly situated v. MARATHON OIL COMPANY, Case No. 17-CV-00456-GKF-JFJ (N.D. Okla.), the U.S. District Court for the Northern District of Oklahoma issued an Opinion and Order: -- overruling the Defendant's Objection to Magistrate Judge's Order; -- denying Marathon's request that the Court overturn the Magistrate Judge's ruling on the Second Motion to Compel as to the "Mittelstaedt Reviews." The matter is a dispute regarding the alleged underpayment or non-payment of royalties and oil-and-gas production proceeds from gas-producing wells operated by Defendant Marathon Oil Company. The Plaintiffs own royalty interests in Marathon-operated wells and purport to bring this action on behalf of themselves and others similarly situated. The Plaintiffs' First Amended Class Action Complaint, the operative pleading in this matter, includes allegations with respect to a single class, defined to include all persons, who own or owned minerals in Oklahoma subject to an oil and gas lease from September 1, 2011, to present wherein Marathon improperly reduced royalty payments by charging the owners for the cost of marketing, gathering, compressing, dehydrating, treating, processing, or transporting hydrocarbons produced. The Plaintiffs assert a single claim for breach of lease. On November 10, 2020, the Plaintiffs filed a Second Motion to Compel seeking three categories of documents and information: (1) complete class pay detail, including pay detail from PayRock Energy Holdings, LLC; (2) Marathon's "Mittelstaedt Reviews"; and (3) Marathon's categorization of the oil-and-gas leases by royalty clause. Pursuant to 28 U.S.C. Section 636, the Court referred the Plaintiffs' motion to U.S. Magistrate Judge Jodi F. Jayne, who held a telephonic hearing on December 9, 2020. During the hearing, Magistrate Judge Jayne issued an order from the bench granting the motion as to the PayRock pay detail and "Mittelstaedt Reviews," but denying the motion as to the categorization of the oil-and-gas leases by royalty clause. Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, Marathon now seeks review of Magistrate Judge Jayne's Order, but only as to the portion of the ruling relating to its "Mittelstaedt Review" documents. Marathon objects to the portion of the Magistrate Judge's ruling related to the "Mittelstaedt Review" documents because it contends those documents are subject to attorney-client privilege. In her December 9 bench ruling, Magistrate Judge Jayne concluded that Marathon had failed to meet its burden of showing the "Mittelstaedt Review" documents were protected by the attorney-client privilege for two reasons: (1) the "Mittelstaedt Reviews" do not qualify for the privilege because it was not shown that the documents were for the purpose of securing legal advice, and (2) the reviews are factual documents that Marathon contractually agreed to produce to royalty owners in Paragraph 2.8(B)(ii) of the Settlement Agreement executed in another class action, Hill v. Marathon Oil Company, No-CIV-08-37-R (W.D. Okla. Sept. 1, 2011). Marathon raises objections to both conclusions. Marathon argues that the Magistrate Judge "erred as a matter of law in relying on a legal presumption that communications to or from in-house counsel are not privileged." Marathon has submitted the Declaration of James Robert Bowden, Manager -- Commercial Services, Natural Gas Marketing for Marathon. Mr. Bowden states that, in 2012, Karen Lukin, one of Marathon's former in-house counsel, requested that he compile information about certain of Marathon's gas-producing Oklahoma wells into a form spreadsheet. Marathon's legal department supplied the form spreadsheet, and the spreadsheets included the words "Mittelstaedt Review" in the title. He declares it was his understanding Marathon's in-house legal department would then access those spreadsheets to use for legal analyses. Additionally, in its privilege log, Marathon identifies the documents as being prepared at the direction of counsel for legal analysis. Based on this evidence, Marathon asserts it has satisfied its burden to demonstrate that the "Mittelstaedt Review" documents are privileged. Assuming that the "Mittelstaedt Reviews" qualify as "communications," the Bowden Declaration and privilege log offer no facts upon which the Court can conclude that the "Mittelstaedt Reviews" were made for the purpose of providing legal advice or services, rather than for any other business purpose, District Judge Gregory K. Frizzell opines. He notes that it is well-established that merely providing a business document to an attorney does not impart privileged status to that document, citing Hayes v. SmithKlineBeecham Corp., No. 07-CV-682-CVE-SAJ, 2008 WL 11381397 (N.D. Okla. Dec. 19, 2008). Although Mr. Bowden states it was "his understanding" that Marathon's in-house counsel used the spreadsheets for legal analysis and "the sole purpose of the Mittelstaedt Review spreadsheets was to compile information for legal analysis," these conclusory assertions of a legal purpose are insufficient. As recognized by Magistrate Judge Jayne, Marathon offers no affidavits or evidence of what legal analysis took place or what the purpose of the analysis would be. Thus, Judge Frizzell holds, Marathon fails to offer facts or evidence to satisfy its burden to demonstrate the "Mittelstaedt Review" documents fall within the scope of Oklahoma's statutory attorney-client privilege. Regardless of whether the Magistrate Judge relied on a presumption not recognized by Oklahoma law, it is clear to the Court that Marathon failed to satisfy its burden to establish the privileged nature of the "Mittelstaedt Review" documents. For this reason, based on the Court's independent review, the "Mittelstaedt Reviews" are not privileged, and must be produced. Marathon also asserts that the Magistrate Judge erred in the analysis of Paragraph 2.8(B) of the Hill settlement agreement. Paragraph 2.8(B) of that Settlement Agreement states that beginning on January 1, 2012, and for a period of 10 years from and after that date (subject to certain provision), Marathon will do the certain determinations with regard to new Marathon-operated wells in Oklahoma that are completed after January 1, 2012. These determinations relate to royalty payments and deductions for costs of gathering, transportation and/or compression. As previously stated, the Magistrate Judge found that the "Mittelstaedt Reviews" are factual documents that Marathon contractually agreed to produce to royalty owners in Paragraph 2.8(B)(ii). Having independently interpreted the Settlement Agreement and conducted a de novo review of the Magistrate Judge's interpretation of it, the Court concurs with Magistrate Judge Jayne's conclusions. As recognized by Magistrate Judge Jayne, the provision creates contractual obligations related to new Marathon-operated wells in Oklahoma for the ten-year period from January 1, 2012, to January 1, 2022. Applying the clear language of the Settlement Agreement to the facts, no clear error exists, Judge Frizzell finds. Moreover, it is clear from the evidence that the "Mittelstaedt Review" forms themselves do not qualify as "legal analysis by attorneys." First, there is no evidence that Mr. Bowden is an attorney. Further, Mr. Bowden indicates that Marathon's in-house legal department the spreadsheets for subsequent legal analysis. The Court finds no error in the Magistrate Judge's conclusion that "the dots connect themselves" and the "Mittelstaedt Reviews" are, therefore, the non-privileged documents created to comply with Hill Settlement Agreement to be produced upon request. For this additional reason, the "Mittelstaedt Review" documents must be produced, Judge Frizzell holds. Wherefore, the Defendant's Objection to Magistrate Judge's Order is overruled and Marathon's request that the Court overturns the Magistrate Judge's ruling on the Second Motion to Compel as to the "Mittelstaedt Reviews" is denied. A full-text copy of the Court's Opinion and Order dated Jan. 14, 2021, is available at https://tinyurl.com/y5m2ka9x from Leagle.com. MCKENNA & DUPONT: Phillips Seeks Final OK of Class Settlement Deal ------------------------------------------------------------------ In the class action lawsuit captioned as Trecia Phillips, on behalf of herself and all others similarly situated, v. McKenna,DuPont, Higgins & Stone, PC, Case No. 2:19-cv-12429-JBC (D.N.J.), the Plaintiff asks the Court to enter an order granting final approval to the parties Class Action Settlement Agreement: -- The Defendant will create a fund of $30 per class member for a total of $3,660. As a result, each participating Settlement Class member will receive $30 -- an amount well in line with analogous class settlements under the Fair Debt Collection Practices Act (FDCPA). -- No Settlement Class member has objected to the Plaintiff's requested $500 Incentive Award. -- This $500 requested Incentive Award for the Plaintiff along with her $1,000 statutory damage award is not being paid from the Settlement Fund. -- MDH&S will pay this $1,500 amount separate and apart from the Settlement Fund so as to not dilute the recovery for any members of the Settlement Class. -- All Class Counsel's attorneys' fees and costs are to be paid by MDH&S to Class Counsel separate from the Settlement Fund. -- In the November 4, 2020 Order, the Court certified the following class: "(a) all individuals (b) with a New Jersey address (c) who were sent a letter from Defendant (d) which was not returned as undeliverable (e) between May 10, 2018 through and including May 30, 2019 (f) where the letter stated: "Our client advises that your account is presently outstanding in the amount of $[BALANCE INSERTED HERE], plus reasonably attorney fees" and/or "However, if you fail to contact this office, [NAME OF CREDITOR] may consider the debt to be valid and may pursue remedies to recover the balance due"." The Plaintiff and Defendant entered into and finalized the Settlement Agreement on October 7, 2020. On November 4, 2020, this Court preliminarily approved the Settlement Agreement and directed that notice of the settlement of this Action be served upon the members of the Settlement Class. The Court is advised that on November 24, 2020, notice of the settlement of this Action was mailed to 122 Settlement Class members by the Class Administrator, First Class Inc. The Plaintiff filed the action alleging that MDH&S violated the FDCPA. The Plaintiff alleged in the Action that MDH&S violated the FDCPA by sending initial debt collection letters that did not comply with Sections 1692g(a)(1) and (a)(3) of the FDCPA in that they failed to include the proper disclosures required by those sections. The Defendant denies any liability or that its practices violated the FDCPA. MDH&S filed an answer to the Plaintiff's complaint in which they denied all material allegations of wrongdoing set forth in the complaint and set forth several affirmative defenses. A copy of the Plaintiff's motion granting final approval to the parties Class Action Settlement Agreement dated Jan. 18, 2020 is available from PacerMonitor.com at https://bit.ly/2LXh0c6 at no extra charge.[CC] Attorneys for the Plaintiff, Trecia Phillips and the Class, are: Ryan Gentile, Esq. LAW OFFICES OF GUS MICHAEL FARINELLA, PC HELP@LAWGMF.COM 110 Jericho Turnpike, Suite 100 Floral Park, NY 11001 Telephone: (212) 675-6161 E-Mail: rlg@lawgmf.com MDL 2323: Atty. Lien Dispute in NFL Concussion Injury Suit Resolved ------------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania resolves the disputes on attorney fees and costs between Locks Law Firm and Langfitt Garner PLLC in the multidistrict litigation captioned as IN RE NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION. Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO Locks Law Firm v. Billy Ray Smith, Jr. Attorney Lien Dispute (Doc. No. 10704). Presently before the Court in the Litigation is the assertion of Attorney Lien by Locks Law against the Award granted to their former client, Settlement Class Member ("SCM") Billy Ray Smith, Jr., in the litigation that became part of the class action, In re: National Football League Players' Concussion Injury Litigation, No. 12-md-2323 (E.D. Pa.). By its lien, Locks Law seeks reimbursement of its costs and payment of attorneys' fees of up to as much as 22% of the Award that has been authorized for Mr. Smith, although it has modified its demand in the course of the lien dispute process. Locks Law also seeks reimbursement of the $12,475.75 it incurred in costs for the neuropsychological testing performed in 2016, the examination and report in 2016, and postage and delivery costs between 2016 and 2019. It advanced costs for Mr. Smith to undergo neuropsychological testing with Dr. Marc Norman in 2016 and for him to be examined on June 18, 2016, by Shauna H. Yuan, M.D., who was then affiliated with the Neurology Department at the University of California, San Diego. She identified a condition that would qualify Mr. Smith under the Monetary Award Fund. On October 31, 2018, the Claims Administrator issued a Notice of Monetary Award of $1,449,395 based upon Dr. Yuan's diagnosis of Mr. Smith's condition as of June 18, 2016. The Court has determined that an Individually Retained Plaintiff's Attorney ("IRPA") is presumptively due no more than 22% of a Monetary Award in fees ("Fee Cap") given the benefits received by the SCMs from the work of counsel engaged for the common benefit of all SCMs. That presumptive cap has not been challenged in the case. By his current counsel, Langfitt Garner, Mr. Smith challenges the Lien given that Langfitt Garner also seeks a contingent fee for its work in representing him. That work, which Mr. Smith agreed would be compensated with a contingent fee of 20% of any monetary award he received, ultimately involved Langfitt Garner's filing an appeal of a partially favorable monetary award such that Mr. Smith received a larger award after he terminated Locks Law and proceeded with former Locks Law personnel working at Langfitt Garner. The parties consented to the Court's resolution of this lien dispute. As it set out in past opinions, the Court's evaluation of these positions involves a consideration of the conditional fee agreements, or CFAs, between Mr. Smith and his counsel and an assessment of the reasonableness of the requested fees of both law firms in light of the analysis set out by the Third Circuit's decision in McKenzie Constr., Inc. v. Maynard, 758 F.2d 97, 100 (3d Cir. 1985) and McKenzie Constr., Inc. v. Maynard, 823 F.2d 43, 45 (3d Cir. 1987). The approach obligates the Court to scrutinize the reasonableness of the CFA at the time of the signing and then determine whether the circumstances compel a different evaluation of the agreement at the time the lienholder seeks enforcement. The Court will then examine the results Mr. Smith obtained, the quality of the representation provided by each firm, and most importantly the extent to which the efforts of the lienholder firm substantially contributed to the result obtained while the client was represented by current counsel. Ultimately, the Court concludes that both firms are entitled to recoup attorney's fees, with the much larger portion allocated to Locks Law for its work securing the diagnosis of the qualifying condition and obtaining the evidence from which Langfitt Garner was later able to procure a more favorable date of diagnosis for that condition. In accordance with the agreement of the parties, Locks Law is entitled to all of the fee attributable to the initial award approved for Mr. Smith in 2018, which was based upon the diagnosis of his qualifying condition as of June 18, 2016. The discussion, thus, focuses on the relative contribution of each firm to the enhanced award approved in 2020, which increased the gross award authorized for Mr. Smith by an additional $401,993 based upon the earlier diagnosis date of February 6, 2013, for that same condition. Magistrate Judge David R. Strawbridge finds that during the period in which Locks Law represented Mr. Smith, the risk inherent in the litigation decreased significantly. The reduction in risk was ultimately accomplished through the efforts of Class Counsel and those other firms, including Locks Law, whose attorneys served on various MDL committees and performed work for the common benefit of the class, for which many firms including theirs were awarded compensation. This does not alter the fact, however, that Locks Law undertook the representation at a time of significant risk. When Mr. Smith switched to Langfitt Garner in June 2019, it can reasonably be assumed that something more was expected to be done; otherwise, there would have been no reason to delay the finalization of his award and its payment. Thus, when Langfitt Garner assumed representation of Mr. Smith, it could anticipate work to appeal as to the diagnosis date. Judge Strawbridge notes that it would also have known that any enhanced award it might achieve could be subject to appeal by the NFL or to audit. The fact that it would have had to engage in significant efforts and advance costs to achieve any additional award for Mr. Smith was a clear and present risk. There were no changes in the circumstances as to risk factors during the time between when Langfitt Garner agreed to represent Mr. Smith and when it sought to enforce its contingent fee agreement upon the approval of his enhanced award. The work performed by Locks Law during the claim development and filing stages played the most significant part in ensuring that Mr. Smith would qualify for an award that recognized his neurocognitive disorder, according to the Memorandum Opinion. Through its appeal, Langfitt Garner could present both further information from existing sources and information from a new expert. This benefitted Mr. Smith in that, while it delayed receipt of his award by almost two years, it achieved for him an award that was 28% larger than the original award, based on the earlier diagnosis date. The Court concludes that a fair resolution of the dispute is to award IRPA fees to be apportioned between Locks Law and Langfitt Garner such that all of the fees attributable to the initial 2018 award go to Locks Law and that the two firms equally share in the fees attributable to the additional incremental award secured in 2020. The remaining funds withheld for counsel fee, based on the Claims Administrator having withheld counsel fee based upon the 22% presumptive cap, and which have not been authorized for either firm, may be refunded to Mr. Smith. The Claims Administrator will reduce the disbursements in light of the 5% holdback and will apportion the holdback funds between Locks Law, Langfitt Garner, and Mr. Smith in the proportions set forth. Finally, Locks Law may be reimbursed for the expenses it sought. Langfitt Garner may be reimbursed $12,500 for costs. A full-text copy of the Court's Memorandum Opinion dated Jan. 14, 2021, is available at https://tinyurl.com/yxue24hy from Leagle.com. MDL 2873: AFFF Products Contaminate Groundwater, Jackson Claims --------------------------------------------------------------- MIKE JACKSON, individually and on behalf of all others similarly situated v. THE 3M COMPANY, f/k/a Minnesota Mining and Manufacturing Co., AGC, INC., f/k/a Asahi Glass Co. Ltd., AGC CHEMICALS AMERICAS INC., AMEREX CORPORATION, ANGUS FIRE ARMOUR CORPORATION, ANGUS INTERNATIONAL SAFETY GROUP, LTD., ARKEMA FRANCE, S.A., ARKEMA INC., ARCHROMA U.S., INC., BASF CORPORATION, individually and as successor in interest to Ciba Inc., BUCKEYE FIRE EQUIPMENT COMPANY, CARRIER GLOBAL CORPORATION, individually and as successor in interest to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS INC., CHEMGUARD INC. CHEMICALS, INC., CHUBB FIRE LTD., CLARIANT CORPORATION, individually and as successor in interest to Sandoz Chemical Corporation, CORTEVA, INC., individually and as successor in interest to DuPont Chemical Solutions Enterprise, DAIKIN AMERICA, INC., DAIKIN INDUSTRIES LTD., DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS INC., individually and as successor in interest to DuPont Chemical Solutions Enterprise, DYNAX CORPORATION, DYNEON, LLC, E. I. DUPONT DE NEMOURS AND COMPANY, individually and as successor in interest to DuPont Chemical Solutions Enterprise, FIRE SERVICES PLUS, INC., KIDDE, P.L.C., KIDDE-FENWAL, INC., individually and as successor in interest to Kidde Fire Fighting, Inc., NARCHEM CORPORATION, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., RAYTHEON TECHONOLOGIES CORPORATION, individually and as successor in interest to United Technologies Corporation, SOLVAY SPECIALTY POLYMERS, USA, LLC., THE CHEMOURS COMPANY, individually and as successor in interest to DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC, individually and as successor in interest to DuPont Chemical Solutions Enterprise, THE ELE CORPORATION, TYCO FIRE PRODUCTS, LP, individually and as successor in interest to The Ansul Company, and UTC FIRE & SECURITY AMERICAS CORPORATION, INC., Case No. 2:21-cv-00162-RMG (D.S.C., Jan. 15, 2021) arises from the foreseeable contamination of groundwater by the use of aqueous film-forming foam (AFFF) products that contained per- and poly-fluoroalkyl substances (PFAS), including but not limited to perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). According to the complaint, Defendants designed, manufactured, marketed, distributed, and/or sold AFFF/Component Products with the knowledge that these toxic compounds would be released into the environment during fire protection, training, and response activities, even when used as directed and intended by Defendants. Due to this contamination, the Plaintiff and the Class have allegedly suffered real personal injuries, bioaccumulation of PFOA in their bodies, property damage and the diminution in value of their properties as a result of the release of PFOA to their private wells and water supplies. The Plaintiff and the Class seek recovery from Defendants for injuries, damages, and losses suffered as a result of exposure to the introduction of PFOA and other toxic substance into their private wells in the Lubbock area, and then into their properties and bodies, in an amount to be determined at trial, exclusive of interest, costs, and attorneys' fees, the suit says. The Jackson case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The 3M Company is an American multinational conglomerate corporation operating in the fields of industry, worker safety, US health care, and consumer goods.[BN] The Plaintiff is represented by: Paul J. Napoli, Esq. NAPOLI SHKOLNIK, PLLC 270 Munoz Rivera Avenue, Suite 201 Hato Rey, PR 00918 Telephone: (212) 397-1000 E-mail: pnapoli@nsprlaw.com - and - Andrew W. Croner, Esq. Patrick J. Lanciotti,Esq. NAPOLI SHKOLNIK, PLLC 360 Lexington Avenue, 11th Fl. New York, NY 10017 Telephone: (212) 397-1000 E-mail: acroner@napolilaw.com planciotti@napolilaw.com MDL 2873: Fenner Sues Over Injury From Exposure to Toxic AFFF ------------------------------------------------------------- KENNETH FENNER v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S., INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No. 2:21-cv-00161-RMG (D.S.C., Jan. 15, 2021) is a class action brought on behalf of the Plaintiff and others similarly situated seeking damages for personal injury resulting from exposure to aqueous film-forming foams (AFFF) containing the toxic chemicals collectively known as per and polyfluoroalkyl substances (PFAS). AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. According to the complaint, the Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF with knowledge that it contained highly toxic and bio persistent PFASs, which would expose end users of the product to the risks associated with PFAS. These PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. The Defendants' PFAS-containing AFFF products were used by the Plaintiff in their intended manner, without significant change in the products' condition. The Plaintiff was unaware of the dangerous properties of the Defendants' AFFF products and relied on the Defendants' instructions as to the proper handling of the products. The Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF products caused the Plaintiff to develop the serious medical conditions and complications, the suit says. The Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to the Defendants' AFFF products at various locations during the course of the Plaintiff's training and firefighting activities. The Fenner case has been consolidated in MDL No. 2873, In Re: Aqueous Film-Forming Foams Products Liability Litigation. The case is assigned to the Hon. Judge Richard Gergel. The 3M Company is an American multinational conglomerate corporation operating in the fields of industry, worker safety, US health care, and consumer goods.[BN] The Plaintiff is represented by: Richard Zgoda, Jr., Esq. Steven D. Gacovino, Esq. GACOVINO, LAKE & ASSOCIATES, P.C. 270 West Main Street Sayville, NY 11782 Telephone: (631) 600-0000 Facsimile: (631) 543-5450 - and - Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Telephone: (205) 328-9200 Facsimile: (205) 328-9456 MENARD INC: Earls, et al. Seek to Certify Five Classes ------------------------------------------------------ In the class action lawsuit captioned as BARRY EARLS, THOMAS FETSCH, DAVID KIEL, TRENT SHORES, STEVE SCHUSSLER, CASSIE LIETAERT, and CHRIS JESSE individually and, on behalf of a class of similarly situated individuals, v. MENARD, INC., a Wisconsin corporation, and JOHN DOES 1-10, Case No. 3:20-cv-00107-jdp (W.D. Wisc.), the Plaintiffs ask the Court to enter an order: 1. certifying the following classes: -- Nationwide Mail-In Rebate Class (Represented by All Representative Plaintiffs): "all customers nationwide who purchased a product from Menards during one of its 11% Off Everything promotions and submitted a claim in accordance with the 11% Off Everything Rebate Program's stated terms and conditions that was received by Menards as reflected in Menards' Rebate Databases, but did not receive the full 11% rebate which was promised under Menards' 11% Off Everything promotion during the Relevant Time Period;" -- Wisconsin Mail-In Rebate Class (Represented by the Plaintiff Chris Jesse): "all Wisconsin residents who purchased a product from Menards during one of its 11% Off Everything promotions and submitted a claim in accordance with the 11% Off Everything Rebate Program's stated terms and conditions that was received by Menards as reflected by Menards' Rebate Databases, but did not receive the full 11% rebate which was promised under Menards' 11% Off Everything promotion during the Relevant Time Period;" -- Illinois Mail-In Rebate Class (Represented by the Plaintiffs Steve Schussler and Trent Shores): "all Illinois residents who purchased a product from Menards during one of its 11% Off Everything promotions and submitted a claim in accordance with the 11% Off Everything Rebate Program's stated terms and conditions that was received by Menards as reflected by Menards' Rebate Databases, but did not receive the full 11% rebate which was promised under Menards' 11% Off Everything promotion during the Relevant Time Period;" -- Michigan Mail-In Rebate Class (Represented by the Plaintiffs Barry Earls and Cassie Lietaert): "all Michigan residents who purchased a product from Menards during one of its 11% Off Everything promotions and submitted a claim in accordance with the 11% Off Everything Rebate Program's stated terms and conditions that was received by Menards as reflected by Menards' Rebate Databases, but did not receive the full 11% rebate which was promised under Menards' 11% Off Everything promotion during the Relevant Time Period;" and -- North Dakota Mail-In Rebate Class (Represented by the Plaintiff Tom Fetsch): "all North Dakota residents who purchased a product from Menards during one of its 11% Off Everything promotions and submitted a claim in accordance with the 11% Off Everything Rebate Program's stated terms and conditions that was received by Menards as reflected by Menards' Rebate Databases, but did not receive the full 11% rebate which was promised under Menards' 11% Off Everything promotion during the Relevant Time Period;" 2. appointing themselves as the class representatives; and 3. appointing the law firm Tycko & Zavareei LLP as class counsel. Menards is a chain of home improvement stores located in the Midwestern United States, owned by founder John Menard Jr. A copy of the plaintiffs' motion for class certification dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/2Yal4rW at no extra charge.[CC] Attorneys for the Plaintiffs and the Proposed Classes, are: Sabita J. Soneji, Esq. TYCKO & ZAVAREEI LLP 1970 Broadway, Suite 1070 Oakland, CA 94612 Telephone: (510) 254-6808 Facsimile: (202) 973-0950 E-mail: ssoneji@tzlegal.com - and - Eric J. Haag, Esq. ATTERBURY, KAMMER & HAAG, S.C. 8500 Greenway Blvd., Suite 103 Middleton, WI 53562 Telephone: (608) 821-4600 Facsimile: (608) 821-4610 E-mail: ehaag@wiscinjurylawyers.com MEWBOURNE OIL: Underpays Gas Royalties, Buckles Estate Suit Claims ------------------------------------------------------------------ BUCKLES ESTATE PROPERTIES, L.L.C.; MIKE R. RICHARDS, as Trustee of the Mike R. Richards Oklahoma Trust; and MARY ANN WILLIAMSON, as Trustee of the Mary Ann Williamson 1988 Trust, on behalf of themselves and all others similarly situated, Plaintiffs v. MEWBOURNE OIL COMPANY; MEWBOURNE HOLDINGS, INC.; AND MEWBOURNE DEVELOPMENT CORPORATION, Defendants, Case No. 5:21-cv-00040-PRW (W.D. Okla., January 19, 2021) is a class action against the Defendants for breach of lease and for fraud, deceit, and constructive fraud. The case arises from the Defendants' willful underpayment or non-payment of royalties on gas produced from Oklahoma wells to royalty owners, including the Plaintiffs, through improper accounting methods. These methods include, but not limited to, paying royalty based on a net price after deducting processing fees and expenses; failing to pay royalty based on starting price paid for residue gas or the gross competitive price; and failing to pay royalty for drip condensate and helium products. As a result of Mewbourne's breaches, the Plaintiffs and the members of the Class have been damaged through underpayment of the actual amounts due, the suit alleges. Buckles Estate Properties, L.L.C. is a limited liability company organized under the laws of Oklahoma and has its principal place of business at 64 Myers Drive, Alva, Oklahoma. Mewbourne Oil Company is a wholly-owned subsidiary of Mewbourne Holdings, Inc., with its principal place of business in Texas. Mewbourne Holdings, Inc. is a company that produces oil and natural gas based in Texas. Mewbourne Development Corporation is an oil and natural gas company, with its principal place of business in Texas. [BN] The Plaintiff is represented by: Rex A. Sharp, Esq. SHARP LAW, LLP 5301 W. 75th Street Prairie Village, KS 66208 Telephone: (913)901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com - and – Barbara C. Frankland, Esq. SHARP LAW, LLP 11990 Grant Street, Suite 550 Northglenn, CO 80233 Telephone: (720) 932-0700 E-mail: bfrankland@midwest-law.com - and – Cody J. McPherson, Esq. Arthur W. Schmidt, Esq. MAHAFFEY & GORE, P.C. 300 N.E. 1st Street Oklahoma City, OK 73104-4004 Telephone: (405) 236-0478 Facsimile: (405) 236-1840 E-mail: cmcpherson@mahaffeygore.com MIDLAND CREDIT: Sandel Sues Over Misleading Debt Collection Letters ------------------------------------------------------------------- The case, SIMCHE SANDEL, individually and on behalf of all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC., and John Does 1-25, Defendant, Case No. 7:21-cv-00343 (S.D.N.Y., January 14, 2021) challenges the Defendant's alleged abusive, deceptive, and unfair debt collection practices in violation of the Fair Debt Collection Practices Act. According to the complaint, the Plaintiff has an obligation that was allegedly incurred to creditor Comenity Capital Bank, who purportedly sold the alleged debt to the Defendant. Subsequently on or about September 23, 2020, the Defendant sent the Plaintiff a collection letter in an attempt to collect the alleged debt. In its collection letter, the Defendant provided 3 payment options, but the 3rd option confused the Plaintiff whether it is a settlement option or a full pay option because the Defendant allegedly failed to provide explanation, thereby damaging the Plaintiff. The complaint asserts that the Defendants violated Section 1692e as the letter is open to more than one reasonable interpretation, and by making false and misleading representation. On behalf of himself and all other similarly situated, the Plaintiff seeks statutory and actual damages, reasonable attorneys' fees and expenses, pre- and post-judgment interest, and other relief that the Court may deem just and proper, the suit says. Midland Credit Management, Inc. is a debt collector. [BN] The Plaintiff is represented by: Raphael Deutsch, Esq. STEIIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext. 107 Fax: (201) 282-6501 E-mail: rdeutsch@steinsakslegal.com MIDWESTERN PET: Dog Foods Contain Mold & Toxins, Simmons Suit Says ------------------------------------------------------------------ Jeremy and Britany Simmons Individually and on behalf of a class Of similarly situated individuals v. Midwestern Pet Foods, Inc., Case No. 6:21-cv-03012-MDH (W.D. Mo., Jan. 20, 2021) alleges that the Defendant inappropriately manufactured, sold, and distributed pet food with mold, toxins, and/or aflatoxins that caused injury and harm to their animals and pets. Defendant Midwestern manufactures, markets, advertises, labels, distributes, and sells Pet and Dog Food under the brand names Sportmix (Sportmix Energy Plus, Sportmix Premium High Energy, Sportmix Original Cat, Sportmix Maintenance, Sportmix High Protein, Sportmix Stamina, Sportmix Bite Size, Sportmix High Energy, Sportmix Premium Puppy), Pro Pac Adult Mini Chunk, Pro Pac Performance Puppy, Splash Fat Cat, and Nunn Better Maintenance (collectively "Dog Foods"). The Defendant sells these products throughout the United States (Missouri, Oklahoma, Arkansas, Kansas, Kentucky, Louisiana, New Mexico, Oregon, Texas, Washington). The Plaintiffs seek both injunctive and monetary relief individually and on behalf of the proposed Class including: (i) requiring full disclosure of all such substances and ingredients in Defendant's pet foods, including marketing, advertising, and labeling; (ii) requiring testing of all ingredients and pet foods for such substances; (iii) prohibiting the sale of any adulterated pet food in the future and (iv) compensating all damages experienced by the members of the proposed Class. As a result of the Defendant's negligent, reckless, and/or knowingly deceptive conduct and representations, the Plaintiffs suffered injury, harm, damages, veterinary care/expenses, consequential damages, incidental damages, and loss of business income, among other costs and expenses, the suit says. Plaintiffs Jeremy and Britany Simmons reside in Falcon, Missouri. The Plaintiffs are pet owners and licensed dog breeders and own and operate Gladerock Farms.[BN] The Plaintiffs are represented by: Mark Schloegel, Esq. Bert Braud, Esq. THE POPHAM LAW FIRM, P.C. 712 Broadway, Suite 100 Kansas City, MO 64105 Telephone: (816) 512-2626 Facsimile: (816) 221-3999 E-mail: mschloegel@pophamlaw.com bbraud@pophamlaw.com NACHURS ALPINE: Gray Sues Over Race Discrimination, FCRA Violations ------------------------------------------------------------------- CURTIS GRAY v. NACHURS ALPINE SOLUTIONS, LLC, Case No. 3:21-cv-00125 (N.D. Ohio, Jan. 15, 2021) is an employment discrimination case brought by the Plaintiff and all other similarly situated persons with a class action component for systemic violations of the Fair Credit Reporting Act resulting in invasions of privacy. Mr. Gray started working for Defendant Nachurs Alpine Solutions, LLC as a materials handler in March of 2019. This was a temporary worker position he obtained through a staffing agency named Arbet Staffing. By September of 2019, Mr. Gray's job performance was so strong that his supervisor recommended he be hired on as a full-time employee. According to the complaint, after Mr. Gray's application for full-time employment, the Defendant snuck in an authorization to conduct a background check along with a prospective release of liability. Both the authorization and release were allegedly invalid because they violated, among other things, the FCRA. Additionally, the complaint asserts that Mr. Gray is an African American man with a prior criminal history, but who, by all accounts, was an exceptional worker for Defendant. If he were assessed on the merits, rather than stereotyped based upon his skin color, he should have been hired, the suit says. Nachurs Alpine Solutions, LLC is a specialty liquids chemical manufacturer operating in the United States and Canada.[BN] The Plaintiff is represented by: Jason E. Starling, Esq. Kevin R. Kelleher, Esq. WILLIS SPANGLER STARLING 4635 Trueman Boulevard, Suite 100 Hilliard, OH 43026 Telephone: (614) 586-7915 Facsimile: (614) 586-7901 E-mail: jstarling@willisattorneys.com kkelleher@willisattorneys.com - and - John C. Camillus, Esq. LAW OFFICES OF JOHN C. CAMILLUS, LLC P.O. Box 141410 Columbus, OH 43214 Telephone: (614) 558-7254 Facsimile: (614) 559-6731 E-mail: jcamillus@camilluslaw.com NEW MOOSEJAW: Class Certification Hearing Rescheduled to Feb. 25 ---------------------------------------------------------------- In the class action lawsuit captioned as JEREMIAH REVITCH, individually and on behalf of all others similarly situated, v. NEW MOOSEJAW, LLC and NAVISTONE, INC., Case No. 3:18-cv-06827-VC (N.D. Cal.), the Hon. Judge Vince Chhabria entered an order: 1. rescheduling the class certification hearing currently schedule for January 28, 2021 to February 25, 2021 at 2:00 p.m.; and 2. setting a case management conference for Wednesday, February 3 at 2:00 p.m. New Moosejaw LLC designs, manufactures, and distributes apparels. The Company offers jackets, jeans, sweaters, shoes, backpacks, first aid kits, and snowboards. NaviStone helps advertisers turn their website visitors into direct mail customers. A copy of the Court's order granting joint administrative motion regarding scheduling extension dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3iIo9Jt at no extra charge.[CC] NEW YORK CITY: EMS Officers Union Seeks to Certify 3 Classes ------------------------------------------------------------ In the class action lawsuit captioned as LOCAL 3621, EMS OFFICERS UNION, DC-37, AFSCME, AFL-CIO, Individually and on behalf of its members, RENAE MASCOL, and LUIS RODRIGUEZ, on behalf of themselves and on behalf of all other similarly-situated individuals, v. CITY OF NEW YORK; NEW YORK CITY FIRE DEPARTMENT; DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; and John and Jane Does 1-20, the identity of such persons being unknown to Plaintiffs but intended to describe those persons responsible for the promotional policies of the City of New York, Case No. e 1:18-cv-04476-LJL-SLC (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. certifying the classes pursuant to FRCP 23(b)(2) and FRCP 23(b)(3): -- the Equitable Class: "all Emergency Medical Service (EMS) Officers in the Supervising Emergency Medical Service Specialist (SEMSS) title from 1996 to present who are non-white, female, have received a reasonable accommodation and/or taken a leave of absence because of a disability, as defined in the New York State Human Rights Law (NYSHRL), the New York City Human Rights Law (NYSHRL), and/or have taken a leave of absence pursuant to FDNY time and leave policies including for Family and Medical Leave Act of 1993 (FMLA), LODI, military service, pregnancy, child care and/or caregiver time;" -- the Race/Sex/Gender Class: "all non-white and/or female EMS Officers in the SEMSS title from 1996 to present" -- the Non-Full Duty Status Class: "all EMS Officers in the SEMSS title from 1996 to present who (1) have received a reasonable accommodation and/or taken a leave of absence because of a disability, as defined in NYSHRL and/or NYCHRL, and/or (2) have taken a leave of absence pursuant to New York City Fire Department (FDNY) time and leave policies including FMLA, LODI, military service, pregnancy, child care and/or caregiver time;" 2. appointing Representative Plaintiffs Renae Mascol and Luis Rodriguez as Class Representatives, and 3. appointing The Kurland Group as Class Counsel. The Plaintiffs allege violations of Title VII of the Civil Rights Act of 1964, the NYSHRL, the NYCHRL related to the Defendants' promotional policies and practices in the EMS Bureau of the FDNY for EMS officers in the SEMSS civil service title (EMS Officers). New York City comprises 5 boroughs sitting where the Hudson River meets the Atlantic Ocean. A copy of the Plaintiffs' notice of motion to certify classes dated Jan. 18, 2020 is available from PacerMonitor.com at http://bit.ly/3bY0KSYat no extra charge.[CC] The Plaintiffs are represented by: Yetta G. Kurland, Esq. THE KURLAND GROUP 85 Broad Street, 28th Floor New York, NY 10004 Telephone: (212) 253-6911 E-mail: kurland@kurlandgroup.com The Defendants are represented by: Donna A. Canfield, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 E-mail: dcanfiel@law.nyc.gov NIELSEN HOLDINGS: Gallo Sues Over Misleading Proxy Statement ------------------------------------------------------------ FRANK GALLO v. NIELSEN HOLDINGS PLC, JAMES A. ATTWOOD, JR., DAVID KENNY, THOMAS H. CASTRO, GUERRINO DE LUCA, KAREN M. HOGUET, HARISH MANWANI, JANICE MARINELLI MAZZA, JONATHAN MILLER, ROBERT C. POZEN, DAVID RAWLINSON, NANCY TELLEM, JAVIER G. TERUEL, and LAUREN ZALAZNICK, Case No. 2:21-cv-00433 (C.D. Cal., Jan. 15, 2021) is an action brought on behalf of the Plaintiff and all others similarly situated against Nielsen Holdings and the members of Nielsen's Board of Directors for their violations of the Securities Exchange Act of 1934 in connection with the proposed acquisition of Nielsen's Global Connect business by newly formed entities which are controlled by investment funds advised by affiliates of Advent International Corporation. According to the complaint, on November 1, 2020, Nielsen issued a press release announcing that it had entered into a Stock Purchase Agreement dated October 31, 2020 to sell Connect business to newly formed entities. Under the terms of the Stock Purchase Agreement, Nielsen will sell the equity interests of certain subsidiaries which contain Connect to newly formed entities in exchange for: (i) $2,700,000,000 in cash, and (ii) a warrant to purchase equity interests in the company that will own Connect following the closing of the proposed transaction, exercisable in certain circumstances. The complaint further states that the Proxy Statement, filed by Nielsen on December 23, 2020 with the Securities and Exchange Commission which recommends that Nielsen stockholders vote in favor of the proposed transaction, omits or misrepresents material information concerning, among other things: (i) the background of the proposed transaction; (ii) the financial projections and the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by the Company's financial advisor, J.P. Morgan Securities LLC; and (iii) Company insiders' potential conflicts of interest. The Defendants allegedly authorized the issuance of the false and misleading Proxy Statement in violation of Sections 14(a) and 20(a) of the Exchange Act. Nielsen Holdings PLC is an American information, data and market measurement firm.[BN] The Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 9100 Wilshire Blvd. #725 E. Beverly Hills, CA 90210 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 - and - Richard A. Acocelli, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 NYC MEDICAL: Lawrence Suit Seeks Collective Status -------------------------------------------------- In the class action lawsuit captioned as KEYLEE LAWRENCE, COURTNEY BRACCIA, BRIA WARNER, and WENDY ROSADO Individually and On Behalf of All Others Similarly Situated, v. NYC MEDICAL PRACTICE, P.C. d/b/a Goals Aesthetics and Plastic Surgery and SERGEY VOSKIN, M.D, Case No. 1:18-cv-08649-GHW (S.D.N.Y.), the Plaintiffs ask the Court to enter an order: 1. certifying their proposed class pursuant to Rule 23 of the Federal Rules of Civil Procedure with respect to their New York Labor Law (NYLL) claims; 2. certifying a Fair Labor Standards Act (FLSA) collective consisting of: "all current and former receptionists and patient coordinators employed by GOALS during the period of September 2015 to present, were not paid overtime compensation for all hours in a workweek in excess of 40"; 3. authorizing themselves to provide judicial notice to all collective and class members; and 4. requiring GOALS to produce an electronic list of all class and collective members and their contact information in order to facilitate service of the collective notice. The Plaintiffs contend that GOALS did pay them and putative collective/class members some overtime compensation, it never paid overtime compensation at a rate of 1.5 times their regular rate of pay, for all hours worked each week, in excess of 40 hours. Goals is an industry-leader in aesthetic medicine and cosmetic surgery. A copy of the Plaintiffs' motion to certify class dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3oel7xA at no extra charge.[CC] The Plaintiffs are represented by: Steven Bennett Blau, Esq. Shelly A. Leonard, Esq. BLAU LEONARD LAW GROUP, LLC 23 Green Street, Suite 105 Huntington, NY 11743 Telephone: (631) 458-1010 E-mail: sblau@blauleonardlaw.com sleonard@blauleonardlaw.com O.J. SMITH: Notice Content & Distribution Method in Gonzalez Okayed ------------------------------------------------------------------- In the case, MARCOS BENITEZ GONZALEZ, ISAAC GONZALEZ HERNANDEZ, VICTORINO FELIX ANTONIO, JUAN JAVIER VARELA CUELLAR, RUBEN DOMINGUEZ ANTONIO, RIGOBERTO CARTERAS JARDON, JORGE BAUTISTA SABINO, EMMANUEL CRUZ RIVERA, CELSO GONZALEZ TREJO, ERIC JACINTO WENCES VASQUEZ, MARTIN NELSON WENCES VASQUEZ, PORFIRIO BAUTISTA CRUZ, ALEJANDRO DE LA CRUZ MEDINA, JOSE ESTEBAN HERNANDEZ CRUZ, SIXTO HERNANDEZ BUENO, VIRGINIO ANGELES GONZALEZ, TIBURCIO ANTONIO MANUEL, and HUMBERTO ANTONIO HERNANDEZ, on behalf of themselves and all other similarly situated persons, Plaintiffs v. O.J. SMITH FARMS, INC., BOSEMAN FARMS, INC., GREENLEAF NURSERY CO., SBHLP, INC., JOEL M. BOSEMAN, JEAN J. BOSEMAN, PEYTON G. McDANIEL, SANDRA W. McDANIEL, and SALVADOR BARAJAS, Defendants, Case No. 5:20-cv-00086-FL (E.D.N.C.), Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of the North Carolina, Western Division, grants the Joint Motion by the named Plaintiffs and Defendants O. J. Smith, Peyton G. McDaniel, and Sandra W. McDaniel to Approve Notice to Class Action Members and to Approve Method for Distributing Notice. In support of their Joint Motion, the Plaintiffs and Smith Farms have filed a stipulated Notice to Class Action Members of Proposed Settlement with Smith Farms, Deadline for Objections, and Opportunity to Withdraw, and method of distribution. Judge Flanagan finds that the proposed content and method of distribution for that notice are consistent with that previously approved for use in other similar wage actions before the federal courts of the state and other states. They also appear to be reasonably calculated to provide the best notice practicable under the circumstances of the case. The Judge, therefore, formally approves the content of the Notice attached to the Joint Motion, as well as the method of distribution for the Notices to class action members set out in the Joint Motion. Consistent with the safety and health of those involved in giving notice to the members of the Smith Farms FLSA/NCWHA class the Court has certified, by separate Order, a copy of the Court-approved Notice which will be distributed to the members of that class in the following manner within the following time deadlines: The parties stipulate and agree that based on currently available records there may be up to an estimated 117 additional members of the proposed class (other than the named Plaintiffs minus Plaintiff Humberto Antonio Hernandez who is not a member of the class). Within 30 days after the Court gives its final approval of the terms of the Settlement Agreement, Smith Farms agrees to pay to the Plaintiffs' counsel for the costs of administering the class fund portion of the settlement by remitting the sum of a maximum of $130 per person in the class upon the delivery of reasonably detailed written invoice(s) by the Plaintiffs' counsel to Smith Farms' counsel of record in the action. These costs are not to be included in the Settlement Fund and any unused monies will be returned to Smith Farms subject to the billing procedure whereby the Plaintiffs' counsel will provide Smith Farms with an invoice from a third party entity or entities for the amount of any monies used by the Plaintiffs' counsel to pay for class notice. The Law Offices of Robert J. Willis, P.A. will give the best notice that is practicable under the circumstances to the members of the class certified by the Court under Rule 23(b)(3). It is the parties' expectation that the respective amount spent on giving notice to each member of the class will vary but in no event will the cost exceed $130 per person in the class. The following methods will be utilized in the attempt to successfully provide individual notice pursuant to Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure in accordance with the interests of the class pursuant to Rule 23(g)(4) of the Federal Rules of Civil Procedure: A. One mailing by USPS (with undeliverable re-processing by the USPS for an anticipated 40% of the class members) to the last known mailing address in Mexico of each NCHWA class member with Smith Farms to provide the Class Counsel with a copy of any I-9 forms or other document(s) it received from SBHLP, Inc./Salvador Barajas containing that last known address for each NCWHA class member; B. A DHL mailing (with undeliverable re-processing by DHL for an anticipated 40% of the class members). The parties understand that depending upon the postal code in Mexico, each mailing would cost $50 to $60 (assuming mailings are mostly in central Mexico); C. Text and WhatsApp delivery of an agreed upon summary of that Notice to the last known text and/or WhatsApp number of all class members at the last known, if any, cellphone or WhatsApp number for each NCHWA class member provided by or through Smith Farms and/or Pablo Arriaga Zacarias; D. Ten trips by contracted representative(s) of the Class Counsel to labor camp(s) in Edgecombe or Nash County identified by the Class Counsel and/or Smith Farms as the present or likely NC domicile of any significant number of NCWHA class member(s) to distribute the Class Notice packets and the claim forms; and E. The printing costs for the class notice packets. The parties agree that the methods described to be used to complete reasonable notice to individual class members may vary as, for example, no mailing is possible without a complete mailing address, and, because of the effect of the COVID-19 pandemic in the Republic of Mexico, DHL may not be delivering mail to the addresses of certain class members even if such addresses are complete. They also agree that it is in the interests of the Class under Rule 23(g)(4) for the Class Counsel to undertake reasonable best efforts to both deliver notice to each potential class member and to distribute relief to the class in the most efficient and cost-effective manner that is reasonably possible. Complete Notice to the class will be provided within 180 days after the Court's preliminary approval of the Settlement Agreement. No claim for compensation from the Class Fund will be considered to be timely if the class member making it does not do so within 240 days of the date on which the Court grants its preliminary approval of the Settlement Agreement, and support that claim with a legible copy of that class member's Mexican passport or other government-issued photo identification card. The Class Counsel will also provide Smith Farms with a reasonably detailed invoice(s) showing how funds were spent delivering notice. A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y5fot6xl from Leagle.com. OHIO BUREAU: Unlawfully Collects Premium Payments, Parma Alleges ---------------------------------------------------------------- CITY OF PARMA, OHIO, individually and on behalf of all other similarly situated public employers v. ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION, Case No. CV-21-943131 (Ohio Com. Pleas, Cohayoga Cty., Jan. 20, 2021), is a class action lawsuit arising from the Bureau's unlawful collection and retention of premiums payments, in violation of the Ohio Workers' Compensation Act and potentially other Ohio constitutional restrictions, laws, and regulations. Parma's claims are typical of the claims of the Class because, like all class members, the municipality has been over-billed by the Bureau's systematic and mandatory excess premium assessment practices and resulting premium charges made to and paid by non-group-rated public employers under circumstances involving common facts and issues, says the complaint. City of Pharma is a municipal corporation organized and existing under the laws of the State of Ohio and pursuant to a municipal charter. Ohio Bureau is an instrumentality of the State of Ohio that is charged with administering the Ohio Workers' Compensation system in accordance with law. The funds that the Bureau is responsible for managing presently exceed 28 billion dollars.[BN] The Plaintiff is represented by: W. Craig Bashein, Esq. John P. Hurst, Esq. BASHEIN & BASHEIN CO , L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113 Telephone: (216) 771-3239 E-mail: cbashein@basheinlaw.com jhurst@basheinlaw.com - and - Paul W. Flowers, Esq. Louis E. Grube, Esq. PAUL W. FLOWERS, C O ., L.P.A. Terminal Tower, 40th Floor 50 Public Square Cleveland, OH 44113 Telephone: (216) 344-9393 E-mail: pwf@pwfco.com leg@pwfco.com - and - Frank Gallucci, Esq. PLEVIN & GALLUCCI 55 Public Square, Suite 2222 Cleveland, OH 44113 Telephone: (216) 861-0804 E-mail: fgallucci@pglawyer.com - and - Daniel P. Goetz, Esq. WEISMAN, KENNEDY & BERRIS CO., L.P.A. 1600 Midland Building 101 Prospect Avenue West Cleveland, OH 44115 Telephone: (216) 781-1111 E-mail: dgoetz@weismanlaw.com OLD DOMINION: Seeks Mediation in Rizk Class Suit ------------------------------------------------ In the class action lawsuit captioned as EILEEN RIZK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SITUATED, v. OLD DOMINION FREIGHT LINE, INC., Case No. 1:20-cv-01865-JPC (N.D. Ohio), the Defendant asks the Court to enter an order: 1. allowing for an additional 14 days, through and including February 15, 2021, to submit its Brief in Opposition to the Plaintiff's Motion to Certify the Collective Action Class; and 2. referring this matter to mediation before Magistrate Judge Thomas M. Parker. The Defendant requests the two-week extension in order to permit it time to consider including deposition testimony in its motion. Counsel for Plaintiff has advised that she will not stipulate to this motion. However, the Plaintiff has not cited any prejudice that she would suffer due to a two-week delay. The Plaintiff would not be prejudiced by the brief extension that the Defendant requests. The Plaintiff's deposition is scheduled for January 22, 2021. The parties have stipulated that the deposition will address issues relative to the Plaintiff's pending motion for conditional certification, with the Defendant reserving the right to continue the remainder of the Plaintiff's deposition at a later date, if necessary. The Defendant believes that Plaintiff's deposition testimony, which the Defendant anticipates will be fully transcribed up to two-weeks thereafter, will bear on the merits of Plaintiff's motion. In connection with her FLSA and related state claim, the Plaintiff alleges that in her position of OS&D Supervisor with freight carrier Old Dominion, she was misclassified as an exempt employee, and is therefore due overtime compensation for hours worked in excess of 40 per week during the period she held that position. The Plaintiff seeks to represent a nationwide class of OS&D Supervisors who worked for Old Dominion during the three-year period preceding the filing of the Complaint. The Plaintiff, a current employee of Old Dominion, filed her Complaint alleging violation of the Fair Labor Standards Act (FLSA) and Ohio state wage and hour law, and violations of the Americans with Disabilities Act, on August 21, 2020. Old Dominion is an American less than truckload shipping company. It offers regional, inter-regional and national LTL service. A copy of the Defendant's motion dated Jan. 19, 2020 is available from PacerMonitor.com at http://bit.ly/36oRpjFat no extra charge.[CC] OPA-LOCKA, FL: Cert. of Water Deposit Class in Suarez Suit Flipped ------------------------------------------------------------------ In the case, City of Opa-Locka, Florida, etc., Appellant v. George Suarez, et al., Appellees, Case No. 3D19-1323 (Fla. Dist. App.), the District Court of Appeal of Florida for the Third District affirms in part and reverses in part the trial court's non-final order granting the Plaintiffs' motion for class certification and denying the City's motion to strike class allegations. The appeal from a class action certification arises out of the City's decade-long policy and practice of estimating customer water usage and its decision to use customer water deposits to satisfy budget shortfalls during the City's ongoing financial crisis. At issue is whether the trial court properly granted class certification on two counts of the complaint. The Plaintiffs are residential and commercial consumers of the City's water services. They alleged that the City breached its obligation to provide water for a reasonable cost to them and all other water customers under the terms of the water utility agreement by failing to provide working water meters, overcharging for water use, and unlawfully using customer water deposits to pay for the City's general operational expenses. The Plaintiffs sought specific performance, compensatory damages, customer refunds, and injunctive relief. The City responded with a motion to dismiss the second amended complaint based on sovereign immunity and arguing that the Plaintiffs failed to properly state a claim for breach of contract or conversion, and that the counts are barred by the statute of limitations. At the conclusion of a three-day hearing, and after reviewing documents and memoranda from both parties, the court determined that the class met the criteria for class certification pursuant to Florida Rule of Civil Procedure 1.220(a). In a lengthy order, the court certified two classes--a water deposit class and an overbilled class--as follows: a. Class I: All City of Opa-Locka residents and businesses, commencing as of the period of the statutes of limitations, required to place water deposits with the City, who are entitled to have those deposits safeguarded in segregated accounts, who are entitled to the return of those deposits, and who have not received the return of deposits from the City; and b. Class II: All City of Opa-Locka water utility customers, commencing as of the period of the applicable statutes of limitations, who paid for water utility services in excess of the amounts they were liable to pay as calculated based on reasonable rates and functioning and accurate water meters and readings. In addition, that order denied the City's motion to strike the class allegations. The City has appealed. Before the Appellate Court can reach the class certification issue, it must first determine whether the Plaintiffs have standing to maintain the proposed classes. As to Class I, the City argues that the water deposit class should not be certified because the evidence establishes that the Plaintiffs have no standing, no cause of action, and have not suffered any injury by the City's use of the water deposits. The Appellate Court agrees holding that the language of the deposit slip agreement clearly indicates that the City may use the deposit funds as if the City "were the absolute owner thereof," until a customer discontinues City water services. Only upon the customer's discontinuance of water services is the City obligated to refund the deposit minus any amounts still owed by the customer. The Court finds that none of the Plaintiffs have discontinued their water service, none are yet entitled to receive a return of their deposits, and as a result have not suffered any injury. By the explicit terms of the deposit slip, the City can use deposit funds toward its general budget. The uncontroverted evidence demonstrated that the Plaintiffs seeking to represent a water deposit class have suffered no damages and, therefore, have no standing to proceed in the case. The Appellate Court, therefore, reverses the determination of class certification of the water deposit class, and does not reach the remaining arguments as to the water deposit class. As to Class II, the Appellate Court opines that the Plaintiffs seeking to represent the overbilled class have--in contrast to the proposed water deposit class--demonstrated their standing to maintain class certification by showing that a case or controversy exists between the Plaintiffs and the City regarding alleged overbilling for water services. It concludes that the Plaintiffs have demonstrated sufficient interest in the outcome of the litigation to proceed. The City next challenges the trial court's typicality and commonality finding as to the class of customers overcharged for water. The City argues that it will be logistically and analytically difficult to calculate each individual class member's putative overcharges over the last several years, thus overwhelming the required typicality and commonality elements of class certification. The Court is unpersuaded by the argument. It explains that the focus of a class certification hearing is on "whether a litigant's claim is suited for class certification" and whether the proposed class provides "a superior method for the fair and efficient adjudication of the controversy." With that in mind, it turns to the primary concern in the consideration of the commonality element, which is whether the representative's claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory. The commonality element only requires that resolution of a class action affect all or a substantial number of the class members, and that the subject of the class action presents a question of common or general interest. The Appellate Court holds that the record facts are sufficient to support finding no abuse of discretion in the trial court's commonality determination. Further, the test for typicality is not demanding and focuses generally on the similarities between the class representative and the putative class members. Mere factual differences between the class representative's claims and the claims of the class members will not defeat typicality. The Appellate Court concludes that the Plaintiffs seeking to represent the overbilled class carried their burden of pleading and proving the elements required by Rule 1.220, and the trial court did not abuse its discretion in certifying the overbilled class pursuant to Florida Rule of Civil Procedure 1.220. The City suggests that the Court should independently assess class certification, but the Court cannot do that, or reach the merits. It accordingly affirms certification of the overbilled class, and reverses certification of the water deposit class. The Opinion is not final until disposition of timely filed motion for rehearing. A full-text copy of the Court's Jan. 13, 2021 Opinion is available at https://tinyurl.com/y37j7n9x from Leagle.com. Kozyak Tropin & Throckmorton LLP, and Detra Shaw-Wilder -- dps@kttlaw.com -- Dwayne A. Robinson -- drobinson@kttlaw.com -- and Mindy Y. Kubs -- myk@kttlaw.com -- for Appellant. Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis ; Michael A. Pizzi, Jr., P.A., and Michael A. Pizzi, Jr. -- mpizzi@pizzilaw.com; Reiner & Reiner, P.A., and David P. Reiner II -- dpr@reinerslaw.com -- for Appellees. ORTHOPEDIATRICS CORP: Rosen Law Investigates Securities Claims -------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, continues to investigate potential securities claims on behalf of shareholders of OrthoPediatrics Corp. (NASDAQ: KIDS) resulting from allegations that OrthoPediatrics may have issued materially misleading business information to the investing public. On December 2, 2020, Culper Research published a report entitled "OrthoPediatrics Corp. (KIDS): Even Channel Stuffing Can't Save This Company[.]" The report alleged that OrthoPediatrics has "engaged in a channel stuffing scheme that has systematically and significantly overstated revenues." On this news, the Company's stock price fell $5.40 per share, or 12%, to close at $39.35 per share on December 3, 2020. Then on December 14, 2020, Culper Research published a second report entitled "OrthoPediatrics Corp. (KIDS): Pleading the Fifth" in which it concluded that the Company "is a structurally broken business which has relied on nefarious tactics to inflate its reported revenues." Rosen Law Firm is preparing a securities lawsuit on behalf of OrthoPediatrics shareholders. If you purchased securities of OrthoPediatrics please visit the firm's website at http://www.rosenlegal.com/cases-register-2015.htmlto join the securities action. You may also contact Phillip Kim of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40thFloor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] PARADISE AWNINGS: Underpays Construction Workers, Martinez Alleges ------------------------------------------------------------------ The case, JUAN U. MISA MARTINEZ and all others similarly situated under 29 U.S.C. 216(b), Plaintiff v. PARADISE AWNINGS CORPORATION, a Florida Corporation, and MANUEL ALCIBAR, individually, Defendants, Case No. 1:21-cv-20181-XXXX (S.D. Fla., January 15, 2021) arises from the Defendants' alleged willful violation of the Fair Labor Standards Act. The Plaintiff has worked for the Defendants as a non-exempt construction worker from on or about April 4, 2020 through on or about September 23, 2020. The Plaintiff alleges that the Defendant has a practice of modifying his time records to reflect that he worked fewer hours than he actually worked and paid him based on those underreported time records. As a result, although he worked an average approximation of 47.5 hours per week, the Defendant did not accurately pay his overtime wages at a rate of one and one-half times his regular rat of pay for all hours he worked over 40 in a workweek., the suit says. Paradise Awnings Corporation provides construction services. Manuel Alcibar had operational control over the company and is directly involved in decisions affecting employee compensation and hours worked by employees. [BN] The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Tel: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com - and – Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 650 Miami, FL 33161 Tel: (305) 773-6661 E-mail: mamane@gmail.com PARTY CITY: McInnis BIPA Class Suit Removed to N.D. Illinois ------------------------------------------------------------ The case styled WILLEY MCINNIS, individually and on behalf of all others similarly situated v. PARTY CITY CORPORATION, Case No. 2020L001103, was removed from the Illinois Circuit Court of DuPage County to the U.S. District Court for the Northern District of Illinois on January 19, 2021. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:21-cv-00309 to the proceeding. The case arises from the Defendant's alleged violations of the Illinois Biometric Information Privacy Act by collecting the fingerprints of the Plaintiff and Class members without first: (a) obtaining their consent to use their biometrics; (b) providing written notice of the Defendant's use of biometrics; and (c) making a written biometrics policy establishing a retention schedule and guidelines for permanent deletion of biometric data available to the Plaintiff and Class members, and actually adhering to that retention schedule with respect to the deletion of their biometric data. Party City Corporation is an operator of chain of discount stores based in Rockaway, New Jersey. [BN] The Defendant is represented by: Andrew Schrag, Esq. BLANK ROME LLP 444 W. Lake Street, Suite 1650 Chicago, IL 60606 Telephone: (312) 776-2521 Facsimile: (312) 264-2461 E-mail: ASchrag@BlankRome.com - and – Jeffrey N. Rosenthal, Esq. BLANK ROME LLP One Logan Square 130 North 18th Street Philadelphia, PA 19103 Telephone: (215) 569-5553 Facsimile: (215) 832-5533 E-mail: Rosenthal-J@BlankRome.com - and – David J. Oberly, Esq. BLANK ROME LLP 1700 PNC Center 201 E. Fifth Street Cincinnati, OH 45202 Telephone: (513) 362-8711 Facsimile: (513) 362-8702 E-mail: DOberly@BlankRome.com PERRIGO COMPANY: March 22 Class Action Opt-Out Deadline Set ----------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE PERRIGO COMPANY PLC SECURITIES LITIGATION 19-cv-70 (DLC) SUMMARY NOTICE OF PENDENCY OF CLASS ACTION To: All persons or entities who purchased or otherwise acquired publicly traded common stock of Perrigo Company plc ("Perrigo") in the United States, from November 8, 2018, to December 20, 2018, inclusive, and who were damaged thereby. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that the lawsuit that is now pending in that court under the caption In re Perrigo Company PLC Securities Litigation, Case No. 19-cv-0070-DLC (S.D.N.Y.) (the "Action") has been certified as a class action on behalf of the Class, except for certain persons and entities that are excluded from the Class by definition as set forth in the full printed Notice of Pendency of Class Action ("Notice"). IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY THIS ACTION. The full printed Notice is currently being mailed to known Class Members. If you have not yet received the Notice, you may obtain a copy of the Notice by contacting the Notice Administrator at: Perrigo Securities Litigation c/o A.B. Data, Ltd. P.O. Box 173013 Milwaukee, WI 53217 877-884-4197 www.perrigosecuritiesclassaction.com Inquiries, other than requests for the Notice, may be made to Class Counsel: Joseph E. White, III SAXENA WHITE P.A. 7777 Glades Road, Ste. 300 Boca Raton, FL 33434 (561) 394-3399 If you are a Class Member, you have the right to decide whether to remain a member of the Class. If you choose to remain a member of the Class, you do not need to do anything at this time other than retain your documentation reflecting your transactions and holdings in Perrigo common stock. You will automatically be included in the Class. If you are a Class Member and do not exclude yourself from the Class, you will be bound by the proceedings in this Action, including all past, present, and future orders and judgments of the Court, whether favorable or unfavorable. If you ask to be excluded from the Class, you will not be bound by any order or judgment of this Court, and you will not be eligible to receive a share of any money which might be recovered for the benefit of the Class. To exclude yourself from the Class, you must submit a written request for exclusion postmarked no later than Monday, March 22, 2021, in accordance with the instructions set forth in the full printed Notice. Please note, if you decide to exclude yourself from the Class, you may be time-barred from asserting the claims covered by the Action by a statute of repose. Pursuant to Rule 23(e)(4) of the Federal Rules of Civil Procedure, it is within the Court's discretion as to whether a second opportunity to request exclusion from the Class will be allowed if there is a settlement or judgment in the Action. Further information may be obtained by directing your inquiry in writing to the Notice Administrator. BY ORDER OF THE COURT: United States District Court for the Southern District of New York http://www.perrigosecuritiesclassaction.com[GN] PK MANAGEMENT: Bid to Reconsider Court Order Tossed in Riley Suit ----------------------------------------------------------------- In the class action lawsuit captioned as LEORA RILEY, et al., Individually and on behalf of all others similarly situated, v. PK MANAGEMENT, LLC, et al., Case No. 2:18-cv-02337-KHV-TJJ (D. Kan.), the Hon. Judge Teresa J. James entered an order: 1. denying the Defendants Aspen Companies Management, LLC and Central Park Holdings, LLC's Motion to Reconsider the Court's Memorandum and Order; and 2. denying the Plaintiffs' and Intervenor-Plaintiffs' Motion to Strike or, in the Alternative, for Hearing or Leave to File Surreply. The Court said, "Aspen and Holdings ask the Court to reconsider its order allowing other tenants to intervene on the ground that they did not establish a right to intervene by showing common issues of fact or law between the claims asserted by the original the Plaintiffs and the Intervenor- Plaintiffs. The Plaintiffs sought and were granted permissive intervention. It cannot reasonably be disputed that Intervenor-Plaintiffs' claims concerning the habitability of Central Park Towers, the only building ever at issue in this case, do not have issues of fact in common with the claims Plaintiffs have long asserted. Finally, Aspen and Holdings ask the Court to issue an additional order that includes specific findings of fact and conclusions of law. The basis of the request is Kansas Supreme Court Rule 165, which requires Kansas state courts to make findings of fact and conclusions of law in orders ruling on contested matters heard without a jury and summary judgment motions. The Kansas rule does not apply to this Court's ruling on a motion to intervene. The Court denies the motion insofar as it seeks reconsideration of the order allowing permissive intervention." Founded in 2008, PK Management, LLC, is a nationwide property management company based in Cleveland, Ohio. Aspen Companies are part of the Real Estate Industry. Central Park Holdings is located in Kansas City, and is part of the Residential Real Estate Brokerage & Management Industry. A copy of the Court's memorandum and order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/36a18Kt at no extra charge.[CC] PRIME FUNDING: Faces Fabricant Suit Over Unsolicited Phone Calls ---------------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. PRIME FUNDING GROUP INC. and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:21-cv-00406 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 a call on the Plaintiff's cellular 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 its calls without obtaining the Plaintiff's "prior express consent" to receive such calls using ATDS. The Plaintiff and other similarly situated persons were harmed due to the Defendant's alleged unsolicited calls which caused them to incur certain charges or reduced telephone time for which they had previously paid, and invaded their privacy. Thus, the Plaintiff seeks injunctive relief prohibiting the Defendant's unlawful conduct in the future, statutory damages, and any relief that the Court deems just and proper, the suit added. Prime Funding Group Inc. is a business financing 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 PROGRESSIVE DIRECT: Class Certification Opposition Due on Feb. 26 ----------------------------------------------------------------- In the class action lawsuit captioned as AMEENJOHN STANIKZY v. PROGRESSIVE DIRECT INSURANCE COMPANY, Case No. 2:20-cv-00118-BJR (W.D. Wash.), the Hon. Judge Barbara Jacobs Rothstein entered an order that the briefing schedule on Plaintiff's Motion for Class Certification is amended as follows: 1. Progressive's class certification opposition and any expert disclosures/Rule 26 reports and/or declarations relating to any class certification opposition and related motions are due on February 26, 2021. 2. The Plaintiff's rebuttal expert disclosures/Rule 26 reports and/or declarations relating to any class certification reply and/or opposition to any defense motions are due on May 19, 2021. 3. Reply on any Motion filed by Progressive shall be due June 28, 2021. Progressive Direct operates as an insurance company. A copy of the Court's order granting stipulated motion to amend briefing schedule dated Jan. 19, 2020 is available from PacerMonitor.com at http://bit.ly/2YbzKY5at no extra charge.[CC] Attorneys for the Defendant Progressive Direct Insurance Company, are: Robert L. Christie, Esq. CHRISTIE LAW GROUP, PLLC 2100 Westlake Avenue N., Suite 206 Seattle, WA 98109 Telephone: 206-957-9669 Facsimile: 206-352-7875 E-mail: bob@christielawgroup.com - and - Jeffrey S. Cashdan, Esq. Zachary A. McEntyre, Esq. James Matthew Brigman, Esq. Allison Hill White, Esq. KING & SPALDING LLP 1180 Peachtree Street Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 E-mail: jcashdan@kslaw.com zmcentyre@kslaw.com mbrigman@kslaw.com awhite@kslaw.com - and - Stephen M. Hansen, Esq. LAW OFFICE OF STEPHEN M. HANSEN, P.S. 1821 Dock Street, Suite 103 Tacoma Washington 98402 Telephone: (253) 302-5955 Facsimile: (253) 301-1147 E-mail: steve@stephenmhansenlaw.com - and - Scott P. Nealey, Esq. LAW OFFICE OF SCOTT P. NEALEY 71 Stevenson Street, Suite 400, San Francisco, CA 94105 Telephone: (415) 231-5311 Facsimile: (415) 231-5313 E-mail: snealey@nealeylaw.com RNMG INC: Fails to Pay Proper Overtime Wages, Baugh Suit Claims --------------------------------------------------------------- MARINA BAUGH, for herself and on behalf of those similarly situated, Plaintiff v. RNMG, INC. d/b/a SUBWAY, a Florida Corporation, RAMZY GIRGIS, individually, Defendants, Case No. 8:21-cv-00125-TPB-CPT (M.D. Fla., January 15, 2021) brings this complaint against the Defendant for their alleged failure to properly pay overtime wages in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants from on or about October 2006 until May 23, 2020 as a non-exempt sandwich maker at the Defendant's restaurant in Sarasota, Florida. The Plaintiff claims that although she routinely worked 55 hours or more in a workweek, the Defendant did not compensate her at one and one-half times her regular rates of pay for all hours she worked over 40 in a workweek. In addition, the Defendants allegedly failed to maintain and keep accurate time records. On behalf of herself and all others similarly situated, the Plaintiff seeks all unpaid overtime compensation, an additional and equal amount of liquidated damages, pre- and post-judgment interest at the highest allowable rate, reasonable attorneys' fees and costs, and any relief that the Court determines to be just and appropriate, the suit says. RNMG, Inc. d/b/a Subway operates a restaurant owned by Ramzy Girgis. [BN] The Plaintiff is represented by: Jeffrey N. Del Rio, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin St., 7th Floor Tampa, FL 33602 Tel: (813) 983-2959 E-mail: JDelRio@forthepeople.com ROBINHOOD FINANCIAL: Luparello Balks at Misleading Trading Services ------------------------------------------------------------------- EDWARD LUPARELLO, on behalf of himself and all others similarly situated v. ROBINHOOD FINANCIAL LLC, a Delaware corporation; ROBINHOOD SECURITIES, LLC, a Delaware corporation; and ROBINHOOD MARKETS, INC., a Delaware corporation, Case No. 3:21-cv-00415 (N.D. Cal., Jan. 15, 2021) alleges Defendants' material omissions, misrepresentations, and concealment of its payment for order flow (PFOF) arrangements and inferior execution prices resulted to a breach of Robinhood's fiduciary duty to Plaintiff and the Class and violations of the Securities Exchange Act of 1934, the California's Corporations Code, the California's Consumer Legal Remedies Act and the California's Unfair Competition Law. Robinhood Financial LLC operates as an institutional brokerage company. According to the complaint, the Defendants target young adults, including the Plaintiff, who are new to investing through youth-forward marketing and a video game-like interface and misleads them into using Robinhood Website and mobile applications by promising "commission-free" and "discounted" trading services and assuring them in its Customer Agreements that all of Robinhood's transactions will be subject to federal and state securities laws. Unbeknownst to Robinhood's unsuspecting and largely unsophisticated customers, from September 1, 2016 to June 16, 2020, Robinhood breached its duty of best execution, accepted less price improvement for its customers' trades than what the principal trading firms were offering in exchange for a higher rate of payment for order flow (PFOF) for itself, misrepresented its receipt of such payments and the execution quality of its trades, omitted material revenue information from its Website and other communications with its customers, and covered up its order flow payments and poor execution quality, the suit says.[BN] The Plaintiff is represented by: Patricia N. Syverson, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 600 W. Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 798-4593 E-mail: psyverson@bffb.com - and - Elaine A. Ryan, Esq. Carrie A. Laliberte, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Rd. Suite 300 Phoenix, AR 85016 Telephone: (602) 274-1100 E-mail: eryan@bffb.com claliberte@bffb.com - and - Laurence D. Paskowitz, Esq. THE PASKOWITZ LAW FIRM P.C. 208 East 51st Street, Suite 380 New York, NY 10022 Telephone: (212) 685-0969 E-mail: lpaskowitz@pasklaw.com SAGINAW COUNTY, MI: Court Narrows Claims in Amended Fox GPTA Suit ----------------------------------------------------------------- In the case, THOMAS A. FOX, on behalf of himself and all others similarly situated, Plaintiff v. COUNTY OF SAGINAW, by its BOARD OF COMMISSIONERS, et al., Defendants, Case No. 19-CV-11887 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, granted in part and denied in part the Defendants' motions to dismiss the Amended Complaint. On June 25, 2019, Plaintiff Fox filed a complaint on behalf of himself and all others similarly situated against Defendants Gratiot County, Gratiot County Treasurer Michelle Thomas, and other Michigan counties ("County Defendants") and county officials ("Individual Defendants"). The Plaintiff seeks damages based on the Defendants' retention of surplus proceeds from tax foreclosure sales. The Plaintiff was the owner of real property in Gratiot County, Michigan. As of 2017, the Property had accrued a Tax Delinquency of approximately $3,091.23. He claims that in February 2017, Defendant Thomas seized ownership of the Property on behalf of Gratiot County as its duly elected treasurer. He represents that on the date of seizure, the Property had a State Equalized Value of $25,200. The Plaintiff reasons that because the fair market value of a property is at least twice the amount of its State Equalized Value, this means that the government would have known or should have known that said property had a fair market value of at least $50,400. Accordingly, he claims that he had $47,308.77 in equity in the Property (the difference between the fair market value of $50,400 and the tax delinquency of $3,091.23). The Plaintiff contends that by retaining the funds, Defendants Thomas and Gratiot County "took or destroyed" his equity in the Property. On June 25, 2019, the Plaintiff filed a complaint on behalf of himself and all others similarly situated against numerous Michigan counties and county treasurers in their individual and official capacities. He argues that the Defendants are unlawfully retaining the equity in foreclosed property sold pursuant to Michigan's General Property Tax Act ("GPTA"), M.C.L. Section 211.78m. The Complaint sought damages from the Defendants for a taking without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution (Counts I and II), inverse condemnation (Count III), violation of article X, section 2 of the Michigan Constitution (Count IV), and an excessive fine in violation of the Eighth Amendment of the United States Constitution (Count V). On Aug. 14, 2019, 25 Defendants filed a joint motion to dismiss the complaint. On Sept. 4, 2019, the Plaintiff filed an amended complaint naming additional counties and treasurers as Defendants. The Amended Complaint also added three additional counts: procedural due process (Count VI), substantive due process (Count VII), and unjust enrichment (Count VIII). Following the Amended Complaint, the County Defendants now include Counties Alcona, Alpena, Arenac, Bay, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Isabella, Jackson, Lapeer, Lenawee, Macomb, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Sanilac, St. Clair, Tuscola, and Washtenaw. The Individual Defendants include Cheryl Franks, Kimberly Ludlow, Dennis Stawowy, Richard F. Brzezinkski, Jenny Beemer-Fritzinger, Kate M. Wagner, Joseph V. Wakeley, Deborah Cherry, Christy Van Tiem, Michelle Thomas, Debra McCollum, Steven W. Pickens, Karen Coffman, Dana M. Miller, Marilyn J. Woods, Lawrence Rocca, Cathy Lunsford, Jean M. Klein, Dwight McIntyre, William Kendall, Diann Axford, Bridget Lalonde, Rebecca Ragan, Timothy M. Novak, Trudy Nicol, Kelly Roberts-Burnett, Patricia Donovan-Gray, Catherine McClary, and Shawna S. Walraven. On Sept. 25, 2020, Defendants Dwight McIntyre and the County of Ogemaw moved to dismiss the Amended Complaint. Forty-three more Defendants filed a joint motion to dismiss the following day. On Nov. 19, 2019, Defendants Lawrence Rocca and Macomb County also moved to dismiss the Amended Complaint. Each of the motions were fully briefed by the parties. The Defendants argued that the Tax Injunction Act and principles of comity precluded subject matter jurisdiction. On Jan. 10, 2020, the August 14 motion to dismiss was denied as moot and the case was stayed pending a decision in Freed v. Thomas, No. 18-2312 (6th Cir.), a case which presented nearly identical facts, substantive arguments, and jurisdictional questions. On Sept. 30, 2020, the Sixth Circuit decided Freed. On Oct. 16, 2020, the stay was lifted, the class was certified, and the class counsel was appointed. The certified class is as follows: All persons and entities that owned real property in the following counties, whose real property, during the relevant time period, was seized through a real property tax foreclosure, which was worth and/or which was sold at tax auction for more than the total tax delinquency and were not refunded the value of the property in excess of the delinquent taxes owed: Alcona, Alpena, Arenac, Bay, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Isabella, Jackson, Lapeer, Lenawee, Macomb, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Sanilac, St Clair, Tuscola, and Washtenaw. Several motions to dismiss remain pending. The Defendants raise many independent arguments for dismissing the Amended Complaint. Judge Ludington granted in part and denied in part the Defendants' motions to dismiss. He dismissed (i) the Individual Defendants; and (ii) Counts II, IV, V, and VII against the County Defendants. Accordingly, Defendants Cheryl Franks, Kimberly Ludlow, Dennis Stawowy, Richard F. Brzezinkski, Jenny Beemer-Fritzinger, Kate M. Wagner, Joseph V. Wakeley, Deborah Cherry, Christy Van Tiem, Michelle Thomas, Debra McCollum, Steven W. Pickens, Karen Coffman, Dana M. Miller, Marilyn J. Woods, Lawrence Rocca, Cathy Lunsford, Jean M. Klein, Dwight McIntyre, William Kendall, Diann Axford, Bridget Lalonde, Rebecca Ragan, Timothy M. Novak, Trudy Nicol, Kelly Roberts-Burnett, Patricia Donovan-Gray, Catherine McClary, and Shawna S. Walraven are dismissed. Counts I, III, VI, and VIII may proceed against the County Defendants. Count I alleges a taking without just compensation in violation of the Fifth and Fourteenth Amendments. The Defendants deny that the Plaintiff had a cognizable property interest in the foreclosed property at the time it was sold because, under the GPTA, "title to foreclosed property vests in the county treasurer when the redemption period expires -- i.e., 21 days after the judgment of foreclosure. Therefore, by the time of the sale, the Plaintiff no longer had any `property interest' in the foreclosed premises under state law. Judge Ludington holds that Count I plausibly alleges a taking without just compensation in violation of the Fifth Amendment. To hold otherwise would mean that the Takings Clause offers no remedy to a person whom the government has stripped of a vested interest in personal property. Absent binding authority to the contrary, the Judge declines to give the Takings Clause such a hollow reading. Count III is an inverse condemnation claim based on the Defendants' retention of the equity in the foreclosed properties. The Judge finds that the Plaintiff has clearly stated an inverse condemnation claim. The Plaintiff plausibly alleges the taking of a cognizable property interest without just compensation in violation of the Fifth Amendment and Michigan's Taking Clause. Accordingly, the Defendants' argument that the Plaintiff had no cognizable property interest and that the GPTA supersedes the need for condemnation procedures has no merit. Count VI alleges that the Defendants' failure to provide post-foreclosure procedures to refund the Plaintiff's equity violated his right to due process under the Fifth and Fourteenth Amendments. The Plaintiff challenges the post-foreclosure process; specifically, the Defendants' failure to furnish adequate procedures before retaining the surplus proceeds. The Defendants' response that the Plaintiff knew he would be denied any refund at best raises a question of fact that cannot be reached on a motion to dismiss. Insofar as the Defendants argue that an adequate process for certain property before foreclosure should enable them to seize different property after foreclosure, the Judge finds that they offer no authority in support. Finally, Count VIII states that the County Defendants were unjustly enriched by seizing the Plaintiff's equity and are therefore liable for restitution. The Defendants argue that the GPTA precludes an unjust enrichment claim because it vests the FGU with fee simple title in the foreclosed property prior to the foreclosure sale. It also contends that the Plaintiff's unjust enrichment claim is precluded by the doctrine of unclean hands. They allege that Plaintiff lacks clean hands because the Amended Complaint "only refers to the 2014 taxes," even though "by the time the foreclosed property was sold, the 2015 and 2016 taxes were owing. The Judge finds that the Defendants raise questions of fact that are not properly considered on a motion to dismiss under Rule 12(b)(6). A full-text copy of the Court's Jan. 13, 2021 Order is available at https://tinyurl.com/y4bgx8ef from Leagle.com. SAN FRANCISCO SHERIFFS: Initial OK of Class Settlement Bid Tossed ----------------------------------------------------------------- In the class action lawsuit captioned as CANDIDO ZAYAS, et al., v. SAN FRANCISCO SHERIFF'S DEPARTMENT, et al., Case No. 3:18-cv-06155-JCS (N.D. Cal.), the Hon. Judge Joseph C. Spero entered an order denying renewed joint motion for preliminary approval of class action settlement without prejudice. The Court said, "This is the parties' second request for preliminary approval of a class action settlement in this case. The Court denied the first such motion on the basis that the San Francisco Board of Supervisors had not approved the settlement agreement and therefore the motion was premature. At the May 29, 2020 motion hearing, the Court also identified a number of deficiencies in the settlement agreement, one of which was that its terms were not fully set forth in a single document. Instead, the parties pointed to the Full and Final Release that had been signed by the named Plaintiffs, agreeing to release their claims against the City and County of San Francisco in return for a payment to the class of $2.1 million, with other terms of the agreement contained only in the parties' motion papers. The Court is unable, however, to grant preliminary approval to the settlement agreement that has been presented with the Renewed Motion for Approval." The San Francisco Sheriff's Office, officially the City and County of San Francisco Sheriff's Office, is the sheriff's office for the City and County of San Francisco. The department has 850 deputized personnel, and support staff. A copy of the Court's order dated Jan. 18, 2020 is available from PacerMonitor.com at https://bit.ly/3bY9PLy at no extra charge.[CC] SANMEDICA INT'L: Pizana's Bid to Resume Deposition Partly Granted ----------------------------------------------------------------- In the lawsuit styled RAUL PIZANA, individually and on behalf of all others similarly situated v. SANMEDICA INTERNATIONAL, LLC, and DOES 1 through 10, inclusive, Case No. 1:18-cv-00644-DAD-SKO (E.D. Cal.), the U.S. District Court for the Eastern District of California granted in part the Plaintiff's Motion to Compel Resumption of the Deposition of SanMedica International 30(b)(6) (Gina Daines). The Plaintiff and Defendant SanMedica, filed their joint statement directed to the Motion to Compel, as required by the Court's Local Rule 251, on December 16, 2020. Plaintiff Pizana filed the putative class action on May 9, 2018, challenging the advertising and efficacy of SeroVital-hgh, a purported Human Growth Hormone ("HGH") supplement produced by the Defendant that was purchased by the Plaintiff in early 2017. The Second Amended Complaint, filed on November 13, 2019, asserts three causes of action: (1) a violation of California Civil Code Section 1750, et seq., the Consumer Legal Remedies Act ("CLRA"); (2) a violation of California Business & Professions Code Section 17500, et seq., the False Advertising Law ("FAL"); and (3) a violation of California Business & Professions Code Section 17200, et seq., the Unfair Competition Law ("UCL"). The crux of the Plaintiff's suit is that the Defendant's Product, despite being marketed as an HGH supplement that can make users look and feel decades -- not years, but decades -- younger," is "no more effective for its advertised purposes than a placebo and is therefore worthless to California consumers." The Plaintiff seeks to assert claims on behalf of a proposed class defined as: All persons residing in California who purchased the Product for personal use and not for resale during the time period May 9, 2014, through the present. Excluded from the Class are Defendant's officers, directors, and employees, and any individual who received remuneration from Defendant in connection with that individual's use or endorsement of the Product. On March 6, 2020, the Court entered a scheduling order that bifurcated merits from class certification discovery and set a deadline of December 18, 2020, for class discovery only. On November 19, 2020, the parties commenced a remote deposition by videoconference of Gina Daines, one of the Defendant's corporate designees pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Volume I of Deposition Transcript of Gina Daines at 6 was filed under seal. The deposition began at 10:17 a.m. and concluded at 5:50 p.m. after reported difficulties with the document sharing program the parties used to display exhibits. The parties agreed to resume the deposition of Daines on a later date. On November 30, 2020, the deposition of Daines recommenced at 8:12 a.m. Volume II of Deposition Transcript of Gina Daines at 218 was filed under seal. The questioning of Daines concluded at 9:43 a.m. after counsel for the Defendant stated that Daines had given seven hours of testimony on the record, as allotted by the Federal Rules of Civil Procedure. Counsel for the Plaintiff responded that at least an hour during the first deposition had been committed to dealing with technological difficulties "and/or argument against counsel," so additional time was warranted. The parties subsequently conferred telephonically and via email regarding more time for the Plaintiff to question Daines. The Defendant offered the Plaintiff an additional hour to depose Daines, which the Plaintiff refused. On December 2, 2020, the Plaintiff filed the instant motion. The Plaintiff moves to compel the resumption of the deposition of Daines, contending that he requires more time to question Daines regarding the advertising, labeling, and packing of the Product, due to technological difficulties and "Defendant's counsel's incessant argument and obstruction" during the first deposition. The Court has reviewed the transcript of the deposition and finds that defense counsel's objections were generally in accordance with Rule 30(c)(2)3, so no additional time is warranted on that basis. Both parties agree, however, that there were technological difficulties impeding the initial examination of Daines, and the Court finds this to be good cause to grant the Plaintiff additional time. The Plaintiff does not specify how much more time he needs to complete the deposition, but based on the cases to which the Plaintiff cites, he appears to suggest five additional hours, Magistrate Judge Sheila K. Oberto notes. The Court finds five additional hours to be excessive and will instead grant the Plaintiff an additional one-and-a-half hours to complete his deposition of Daines due to time lost to technical difficulties. In addition to the issue with displaying exhibits that ultimately led to the termination of the first deposition, the Court notes 10 instances where a party's video/audio either froze or cut out, thus, requiring questions and statements to be repeated. As the parties' window for class certification discovery closed on December 18, 2020, the Court will reopen discovery for the limited purpose of completing the deposition of Daines. Accordingly, the Court ruled as follows: 1. Plaintiff's Motion to Compel is granted in part; 2. Class certification discovery is reopened to February 12, 2021, for the limited purpose of allowing the Plaintiff one-and-a-half hours to resume and complete the deposition of Gina Daines; and 3. The parties are directed to meet and confer, and agree on a date for Daines' deposition, to be taken on or before February 12, 2021. A full-text copy of the Court's Order dated Jan. 14, 2021, is available at https://tinyurl.com/y244ngns from Leagle.com. SCIENCE OF LAB: Discards All Data, AI Algorithms Amid Criticism --------------------------------------------------------------- Express Computer reports that the South Korean developer of a controversial female chatbot said on Friday that it will discard all data and learning algorithms used in training the artificial intelligence (AI) platform amid mounting criticism over its data collection process and hate speech. Scatter Lab, a Seoul-based startup, said it has decided to pull the plug on its 20-year-old female chatbot persona called Lee Luda and dispose of its database and deep learning algorithms to address concerns among its users. The company on Jan. 18 temporarily suspended the Facebook-based chatbot, 20 days after beginning its service, in response to complaints over its discriminatory and offensive language against sexual minorities. Some male users were even able to manipulate the bot into engaging in sexual conversations. The company also came under fire for using personal information of its users without proper consent and not making enough efforts to protect it. Scatter Lab said it used data collected from 10 billion conversations on KakaoTalk, the nation's number one messenger app. They were retrieved from the firm's Science of Love app launched in 2016, which analyzes the degree of affection between partners based on actual messenger chats. Users of Science of Lab claimed the company used their personal information without prior consent, and some even warned of a class action suit against the company. Luda attracted more than 750,000 users after its debut on December 23. [GN] SCOTIABANK: Class Action Mulled Against Former Officer Over Fraud ----------------------------------------------------------------- Monte Sonnenberg, writing for Brantford Expositor, reports that Scotiabank in Simcoe has been ordered to hand over financial records related to an alleged investment fraud involving a retired member of the Norfolk OPP. On Sept. 8, Justice Richard Lococo ordered Scotiabank to produce all transaction records from three known accounts registered in the name of Lawrence Wayne Renton, a detective-sergeant who retired in 2016. Lococo was responding to a petition from Jim Millson, a retired staff sergeant with the Norfolk OPP, who was hired by Norfolk County last year as the municipality's supervisor of bylaw enforcement. "The applicant James Millson alleges he is one of at least 30 known victims of a fraudulent scheme operated by Lawrence Wayne Renton," says an application dated Aug. 14 from Toronto lawyer Norman Groot to the Superior Court of Justice in Simcoe. "The applicant is a proposed representative plaintiff for a class proceeding. If a class proceeding is not certified or otherwise viable, the proposed class members may proceed with group or individual actions." The application alleges the parties involved lost "approximately $3.5 million" in "the fraudulent scheme operated by Renton," which the application says "appears to be a typical Ponzi scheme." "A Ponzi scheme is defined as a scam carried out on the public whereby the rogue makes promises of high returns in a short period of time and uses funds obtained by early investors to pay off latter investors." Renton's activities are the subject of an OPP fraud investigation. Renton has not been charged and the allegations in the proceeding before Lococo have not been proven in court. The purpose of the Millson action is to preserve all relevant financial records in advance of further legal action. "Scotiabank is the only practicable source of information regarding what has happened to the applicant's and class members' funds provided to Renton. The orders sought will allow the applicant and class members to trace their funds, identify additional bank and/or brokerages and trading accounts, preserve assets, and to identify and prosecute the wrongdoings of Renton." The application says Renton presented himself to investors as an uncertified investment manager who had devised day-trading techniques and computer algorithms that produced extraordinary returns on the stock market. The application alleges Renton brought family members, friends, colleagues, associates and their family members into the scheme with promises of returns in the range of 20 per cent and more. The application suggests Millson was one of those "early investors." "Between 2013 and March 2020, the applicant transferred $310,000 to Renton," the application says. "The applicant's funds were sourced from a home-equity line of credit, which the applicant paid interest on. Between 2013 and March 2020, Renton transferred approximately $294,000 back to the applicant in what he characterized as a return of principal. "Over time, the applicant referred his stepmother, his stepbrother and his adult daughters to Renton. These are some of the individuals who form the class members." The application says Renton received investor cash as "loans" so that returns would not have to be declared to the Canada Revenue Agency as "income." Renton also insisted on loan terminology, the application says, in response to regulations under the Ontario Securities Act. "Renton represented that - since his agreement with those from whom he received funds was a loan, and since he specifically did not show his lenders his daily profit and loss trading records or any other records relating to how he operated his day-trading business - that he was not required to seek registration for trading in securities. "It was for such reasons that Renton represented to the applicant and his lenders that their agreement was based on a 'handshake' and 'trust.'" The application says the Ontario Securities Commission began making inquiries into Renton's activities last February. Soon after, the COVID-19 pandemic struck and Renton's relationship with his investors deteriorated amid global stock market turmoil, according to the application. The application says Renton asked all involved for a 30-day delay on monthly payments, following that on May 20 with a request for an additional extension. "Later in May 2020, however, the applicant learned that Renton had again been subject to OSC inquiries and that he had attempted suicide." The application alleges the 30 parties to the Millson filing transferred $4.75 million to Renton, while receiving $1.25 million in payments. "Other class members have contacted our firm but have not yet disclosed the quantums of their losses," the application says. Millson and parties to his application allege Renton has acquired considerable assets over the years. "Renton receives a pension from the OPP," the application says. "Renton has had various boats over the years. Renton is known to have invested in one or possibly more time-share agreements in Florida. "Renton has purchased luxury vehicles and is known to have an interest in expensive jewelry. "Renton's outward spending and registered assets are not commensurate with $3.5 million in missing class members' funds. Therefore, there is urgency to trace the class members' funds through this application." The court file at the Norfolk County court house in Simcoe does not include a response from Renton or his representatives. [GN] SETERUS INC: Morandi & Mercado Seek to Certify Class ----------------------------------------------------- In the class action lawsuit captioned as KEN MORANDI and BLANCA MERCADO, individually and on behalf of all others similarly situated, v. SETERUS, INC., Case No. 2:19-cv-06334-MCS-MAA (C.D. Cal.), the Plaintiffs will move the Court on April 5, 2021 to enter an order certifying the following class: "all individuals in the state of California, who, during the applicable limitations period, paid a convenience fee to Mr. Cooper for paying over the phone in connection with any residential mortgage loan owned or serviced by Mr. Cooper." All employees of the Court and the Plaintiff's counsel are excluded from this class. Seterus Inc. operates as a loan servicing company. It operates as a subsidiary of International Business Machines Incorporated. A copy of the Plaintiffs' motion to certify class dated Jan. 18, 2020 is available from PacerMonitor.com at http://bit.ly/3qIxbcgat no extra charge.[CC] The Plaintiffs are represented by: John E. Norris, Esq. Dargan M. Ware, Esq. Andrew Wheeler-Berliner, Esq. Robert B. Salgado, Esq. DAVIS & NORRIS, LLP 2154 Highland Ave. S. Birmingham, AL 35205 Telephone: (205) 930-9900 Facsimile: (205) 930-9989 E-mail: jnorris@davisnorris.com dware@davisnorris.com andrew@davisnorris.com rsalgado@davisnorris.com SHENANDOAH VALLEY: 4th Cir. Flips Summary Judgment in Doe 4 Suit ---------------------------------------------------------------- In the lawsuit entitled JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated, Plaintiff-Appellant v. SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Defendant-Appellee. CURRENT AND FORMER STATE ATTORNEYS GENERAL; ELECTED PROSECUTORS; CORRECTIONS LEADERS, CRIMINAL JUSTICE LEADERS; DISABILITY RIGHTS LEADERS, Amici Supporting Appellant, Case No. 19-1910 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit reverses the district court's grant of summary judgment. The matter was argued on October 28, 2020, and decided on January 12, 2021. The amended opinion was issued on January 14, 2021. Reversed and remanded by published opinion. Chief Judge Roger L. Gregory wrote the opinion, in which Judge Barbara Milano Keenan joined. Judge James Harvie Wilkinson III wrote a dissenting opinion. The Appellants are a class of unaccompanied immigrant children detained at Shenandoah Valley Juvenile Center, who challenge the adequacy of their medical care. They are immigrant children, who fled their native countries -- mainly Honduras, Guatemala, Mexico, and El Salvador -- after experiencing appalling horrors. After fleeing their native countries due to harrowing traumas, many of these children struggle with severe mental illnesses, resulting in frequent self-harm and attempted suicide. Under federal law, the Appellants are unaccompanied alien children: children under the age of 18, who have no lawful immigration status and no parent or legal guardian in the United States available to care for them (6 U.S.C. Section 279(g)(2). Upon arrival in the United States, they fall under the custody of the Department of Health and Human Service's Office of Refugee Resettlement ("ORR"). The Shenandoah Valley Juvenile Center ("SVJC") is a secure juvenile detention facility in Staunton, Virginia, and is run by the Shenandoah Valley Juvenile Center Commission, a governmental entity formed under Virginia law. It provides education, housing, and medical care to unaccompanied immigrant children who, in the discretion of ORR, require a secure placement due to safety concerns. SVJC also houses youth from surrounding jurisdictions, who have been charged with a crime but have not yet had their cases adjudicated. The Appellants filed a class action suit alleging, among other things, that the Commission fails to provide a constitutionally adequate level of mental health care due to its punitive practices and failure to implement trauma-informed care. The district court granted summary judgment to the Commission after finding that it provides adequate care by offering access to counseling and medication. But the district court incorrectly applied a standard of deliberate indifference when it should have determined whether the Commission substantially departed from accepted standards of professional judgment, Judge Gregory opines. Accordingly, the Appellate Court reversed and remanded for further proceedings so that the district court may apply the appropriate standard and consider all evidence relevant to it. Discussion On the issue of Article III standing, the Commission argues that the Appellants lack standing -- specifically, redressability -- because they did not name ORR as a defendant. According to the Commission, ORR retains ultimate responsibility for the Appellants' placement and mental health treatment, and the absence of ORR means that the suit cannot redress the Appellants' injuries. The Appellants answer that their injuries result from the actions of SVJC, not ORR, and that the Appellants seek relief that would require SVJC to modify how it cares for those within its facility. The Appellate Court finds that the Appellants meet the requirements for redressability. Judge Gregory opines that the Appellants' failure to name ORR as a Defendant does not deprive their claims of redressability because ORR would have to approve any changes SVJC proposes to ensure that its unaccompanied children are given a constitutionally adequate level of mental health care. The Commission also argues, among other things, that ORR's absence also means that SVJC could be subject to a court order that conflicts with its legal obligations under Flores and its Cooperative Agreement with ORR. But the Flores Settlement imposes a floor, not a ceiling, for the services required for children in the government's care, Judge Gregory holds, citing Flores v. Sessions, 862 F.3d 863, 877 (9th Cir. 2017). SVJC's cooperative agreement likewise exists to ensure that SVJC meets those minimum requirements. Thus, neither the Flores Settlement nor SVJC's cooperative agreement prevents the Appellants from redressing their alleged injuries through the relief they seek from SVJC. Accordingly, the Appellate Court holds that a facility caring for an unaccompanied child fails to provide a constitutionally adequate level of mental health care if it substantially departs from accepted professional standards. The Appellants also urge the Appellate Court to apply Youngberg's standard of professional judgment. In Youngberg v. Romeo, 457 U.S. 307, 320-23 (1982), the Supreme Court considered the Fourteenth Amendment protections guaranteed to a mentally disabled person involuntarily committed to a state institution. Judge Gregory opines that the Youngberg standard is particularly warranted here, given the unique psychological needs of children and the state's corresponding duty to care for them. He notes that to apply Youngberg to a claim of inadequate medical care, then, a court must do more than determine that some treatment has been provided -- it must determine whether the treatment provided is adequate to address a person's needs under a relevant standard of professional judgment. The Commission also claims that trauma-informed care represents an aspirational standard, not an accepted standard of professional judgment. The district court's order on the Commission's motions in limine suggests that it thought the same. According to the Brief of Criminal Justice and Disability Rights Amici at 12, for children, "trauma-informed care is already in widespread use in juvenile detention systems and is considered the accepted standard of professional care." The Appellate Court leaves it to the trial court to determine in the first instance to what extent, if any, the trauma-informed approach should be incorporated into the professional judgment standard in this particular case. It observes only that trauma-informed care is part of the landscape of relevant evidence to be considered by the trial court in making the determination. Because the Youngberg standard governs the Appellants' claim, the district court erred by applying the standard of deliberate indifference, Judge Gregory holds. In doing so, the district court also excluded evidence relevant under Youngberg, including Dr. Gregory Lewis' (the Appellants' expert) opinions concerning trauma-informed care and Dr. Weisman's opinions, which were not presented as part of the record on appeal. Moreover, the district court misread the record and failed to construe it in the light most favorable to the nonmoving party, the Appellate Court holds. Itt justified summary judgment in part because it did not consider Doe 4 to be at risk of serious harm. It reasoned that Doe 4 did not need additional psychiatric care because he admits that he never thought of committing suicide, that he had no thoughts of self-harm, and that the only incident where he harmed himself was when he punched a wall in anger. But SVJC's own records contradict it. They show that Doe 4 once attempted suicide when he tied a shirt around his neck, causing staff to intervene and place him in a suicide vest. The district court also did not construe the record in the light most favorable to Appellants when describing the adequacy of existing services at SVJC, Judge Gregory finds. The district court stated that Doe 4 "saw a psychiatrist at least every six weeks," and that more than 50% of each visit with Dr. Kane is supposed to be dedicated to one-on-one counseling." But the Commission's witnesses, including Dr. Kane, testified that he did not provide counseling or therapy and that he was charged solely with prescribing and managing medications. Dr. Timothy Kane is a psychiatrist, who visits the facility every three to six weeks. Dr. Joseph Gorin is a psychologist retained by SVJC. The district court did acknowledge that Dr. Gorin had diagnosed Doe 4 with PTSD and recommended that Doe 4 receive treatment in a residential treatment center. Doe 4's clinicians likewise advocated on his behalf for placement in such a center. But the district court satisfied itself with the fact that SVJC had attempted to transfer Doe 4 to such a facility, without assessing whether SVJC's services were adequate for Doe 4 once they were unable to do so, Judge Gregory avers. Consequently, the district court did not consider testimony by SVJC's staff recognizing that they lacked the capacity to treat children whom psychologists recommended for placement in residential treatment. In light of the Youngberg standard, the district court must consider this evidence and all other evidence relevant to the professional standards of care necessary to treat Appellants' serious mental health needs, Judge Gregory insists. For all of these reasons, the Appellate Court reverses the district court's grant of summary judgment and remands for further proceedings consistent with the opinion. Dissent Judge Wilkinson dissents stating that they -- judges -- should stick to what they are good at: applying precedent, interpreting statutes, and exercising traditional equitable powers. He notes that the case features an invitation to try their hand at institutional governance and to do something they are utterly unqualified to do -- determine what constitutes acceptable mental health care. He respects the majority's sincere and humane concerns. But it is staring at a host of unintended consequences. And under what rock is hidden its holding's relationship to law, he has no idea. By remanding in the face of the record, the majority urges courts to enter the business of second-guessing mental health treatment decisions. Because they are not remotely qualified to do that, he respectfully dissent, Judge Wilkinson states. A full-text copy of the Court's Opinion dated Jan. 14, 2021, is available at https://tinyurl.com/yxr8fkka from Leagle.com. ARGUED: Theodore A. Howard -- thoward@wileyrein.com -- WILEY REIN, LLP, in Washington, D.C., for Appellant. Jason A. Botkins -- jason.botkins@littensipe.com -- LITTEN & SIPE, LLP, in Harrisonburg, Virginia, for Appellee. ON BRIEF: Hannah E.M. Lieberman -- Hannah_Lieberman@washlaw.org -- Mirela Missova -- mirela_missova@washlaw.org -- WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, in Washington, D.C., for Appellant. Joshua S. Everard -- josh.everard@littensipe.com -- LITTEN & SIPE, LLP, in Harrisonburg, Virginia; Harold E. Johnson -- hjohnson@williamsmullen.com -- Meredith M. Haynes -- mhaynes@williamsmullen.com -- WILLIAMS MULLEN, in Richmond, Virginia, for Appellee. Neil R. Ellis -- nellis@sidley.com -- Mark E. Herzog -- mherzog@sidley.com -- David A. Miller -- dmiller@sidley.com -- SIDLEY AUSTIN LLP, in Washington, D.C., for Amici Current and Former State Attorneys General, Elected Prosecutors, Corrections Leaders, Criminal Justice Leaders, and Disability Rights Leaders SIMS GROUP: Court Conditionally Certifies Employee Collective -------------------------------------------------------------- In the class action lawsuit captioned as PAEA SANFT, v. SIMS GROUP USA CORPORATION, Case No. 4:19-cv-08154-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order granting the in part and denying in part the Plaintiff's motion for conditional certification of a collective and approval of court-supervised notice under the Fair Labor Standards Act (FLSA). The Court conditionally certifies the following collective: "all individuals who are or previously were employed by the Defendant on an hourly basis, and who worked over forty 40 in the same week that they earned shift differential pay, at any time during the period beginning January 19, 2018 to the date of this order." The Court agrees with Sims Group, however, that the production of the other information the Plaintiff seeks would violate collective members' privacy rights and is unnecessary for the giving of notice. The balance of the Plaintiff's requests for collective member information are therefore denied. The Plaintiff Paea Sanft, a former employee of the Defendant Sims Group, seeks to represent a collective class of Sims Group employees and former employees in this FLSA action. His first amended complaint, alleges five causes of action including an FLSA claim asserting that Sims Group required employees to work more than 40 hours per week and failed to pay the mandatory overtime rate for those overtime hours, in violation of 29 U.S.C. sections 206 et. Seq. Sanft worked for Sims Group, a global metal recycler, from June 1999 through September 2019, and held several different roles including Labor, Maintenance, Lead Shift, Heavy Equipment Operator, and Equipment Operator. Sanft filed his original complaint in San Mateo Superior Court on October 31, 2019, and Sims Group subsequently removed the action to federal court. Sanft filed the FAC on April 3, 2020, which Sims Group answered on April 17, 2020. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3p82g8N at no extra charge.[CC] SMART ENERGY: Xenes Sues Over Unsolicited Telemarketing Calls ------------------------------------------------------------- RAFAEL XENES, Plaintiff v. SMART ENERGY, INC., Defendant, Case No. 1:21-cv-20180-XXXX (S.D. Fla., January 15, 2021) brings this complaint on behalf of a proposed nationwide class of other persons who received illegal telemarketing calls from or on behalf of the Defendant pursuant to the Telephone Consumer Protection Act. The Plaintiff alleges that the Defendant placed telemarketing calls to his cellular telephone number 754-XXX-3773 beginning in February 2020 by using an "automatic telephone dialing system." The Defendant's telephone calls were for the purpose of encouraging the Plaintiff to avail its insurance policies. The Plaintiff also asserts that he never provided his "prior express written consent" to the Defendant to be contacted on his cellular telephone number that was listed on the National Do-Not-Call Registry for more than 31 days prior to the calls. According to the complaint, the Plaintiff and all members of the proposed classes have been harmed by the acts of the Defendant in the form of multiple involuntary telephone and electrical charges, the aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited and harassing telephone calls, and violations of their statutory rights. The Plaintiff seeks injunctive relief to prevent further violations of the TCPA, statutory damages, reasonable attorneys' fees and costs, and other relief that is just and equitable under the circumstances, the suit says. Smart Energy, Inc. sells insurance policies. [BN] The Plaintiff is represented by: Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Tel. (Direct): (813) 337-7992 Tel. (Main): (813) 224-0431 Fax: (813) 229-8712 E-mail: bhill@wfclaw.com SOLARWINDS INC: Stockholders File Class Action After Cyberattack ---------------------------------------------------------------- Sara E. Teller, writing for Legal Reader, reports that stockholders of SolarWinds have filed a class action lawsuit against the company, its CEO, Kevin Thompson, and its CFO, Barton Kalsu, after a cyberattack on its management software impacted its supply chain. The class contends, "SolarWinds lied and materially misled" them about how security was handled leading up to the breach of its Orion software that "has reverberated throughout the public and private sector." The class includes buyers who publicly traded SolarWinds securities last year from February 24 to December 15, 2020. The complaint alleges each defendant was directly involved in the company's day-to-day operations, "were privy to confidential information about business operations and oversight of internal controls and made false and misleading statements that violated securities law." Court documents indicate that Thompson and Kalsu, "because of their senior positions, knew the adverse non-public information about SolarWinds's corporate governance and business prospects." The plaintiffs believe they were negligent in providing sufficient oversight, and actively misled stockholders. "Defendant knew that the public documents and statements issued or disseminated in the name of SolarWinds were materially false and misleading; knew that such statements or documents would be issued or disseminated to the investing public; and knowingly and substantially participated in such statements or documents as primary violations of the securities laws," attorneys for the class wrote. "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," the stockholders would not have made their purchases. In a December filing to the Securities and Exchange Commission, SolarWinds said "an investigation concluded that malicious hackers - which U.S. government officials have attributed to a group with ties to the Russian government - inserted the corrupted code within Orion's build system between March and June 2020. The company's stock price took an immediate tumble, and subsequent news stories about poor security trickled out in the days after at the same time SolarWinds stock fell further." The company disclosed, "Despite our security measures, unauthorized access to, or security breaches of, our software or systems could result in the loss, compromise or corruption of data, loss of business, severe reputational damage adversely affecting customer or investor confidence, regulatory investigations and orders, litigation, indemnity obligations, damages for contract breach, penalties for violation of applicable laws or regulations, significant costs for remediation and other liabilities. We have incurred and expect to incur significant expenses to prevent security breaches, including deploying additional personnel and protection technologies, training employees, and engaging third-party experts and consultants. Our errors and omissions insurance coverage covering certain security and privacy damages and claim expenses may not be sufficient to compensate for all liabilities we incur." The class is requesting "a trial by jury" to determine the extent of Thomspon and Kalsu's involvement, and the plaintiffs are seeking damages from both the company and the named individuals, "reasonable" payment for their court costs, and any other further relief" allowed by the court. [GN] SPARKY BOY: Williams Sues Over Blind-Inaccessible Online Store -------------------------------------------------------------- MILTON WILLIAMS, on behalf of himself and all others similarly situated, Plaintiff v. SPARKY BOY ENTERPRISES, INC., Defendant, Case No. 1:21-cv-00430-PGG (S.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its Website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's Website, https://www.planetnatural.com/, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the Website. These access barriers include, but not limited to: (1) lack of alternative text (alt-text), or a text equivalent, which prevents screen readers from accurately vocalizing a description of the graphics; (2) empty links that contain no text causing the function or purpose of the link to not be presented to the user; (3) redundant links where adjacent links go to the same Uniform Resource Locator (URL) address, which results in additional navigation and repetition for keyboard and screen-reader users; and (4) linked images missing alt-text, which causes problems if an image within a link contains no text and that image does not provide alt-text. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired individuals. Sparky Boy Enterprises, Inc. is a company that operates the Planet Natural online retail store across the United States, with its principal executive office located at 1612 Gold Avenue, Bozeman, Montana. [BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: Michael@Gottlieb.legal Jeffrey@gottlieb.legal Dana@Gottlieb.legal SPY OPTIC: Angeles Suit Seeks Full Website Access for Blind Users ----------------------------------------------------------------- JENISA ANGELES, on behalf of herself and all others similarly situated, Plaintiff v. SPY OPTIC INC., Defendant, Case No. 1:21-cv-00412 (S.D.N.Y., January 18, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act and the New York City Human Rights Law. According to the complaint, the Defendant has failed to design, construct, maintain, and operate its Website to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired persons. The Defendant's Website, www.spyoptic.com, contains access barriers which hinder the Plaintiff and Class members to enjoy the benefits of its online goods, content, and services offered to the general public through the Website. These access barriers include, but not limited to: (1) features lack alternative text (alt-text), or a text equivalent, which prevents screen readers from accurately vocalizing a description of the graphics; (2) features fail to contain proper label elements or titles; (3) pages contain the same title elements; and (4) pages contain a host of broken links. The Plaintiff and Class members seek permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired individuals. Spy Optic Inc. is an eyewear manufacturing company based in Carlsbad, California. [BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: mrozenberg@steinsakslegal.com ST MARY AND ST MINA: Walden Seeks Unpaid Store Clerks' OT Wages --------------------------------------------------------------- DAMON WALDEN, on behalf of himself and others similarly situated, Plaintiff v. ST MARY AND ST MINA, INC., a Florida Corporation, and ST. PHILOMENA INC., d/b/a 7-Eleven Store, a Florida Corporation, and HANY K. MENIAS, an individual, Defendants, Case No. 8:21-cv-00129 (M.D. Fla., January 16, 2021) brings this complaint as a collective action against the Defendant seeking to recover unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as a store clerk from on or about March 2020 until his separation from employment in October 2020. The Plaintiff asserts that the Defendant did not pay him the federally mandated overtime wage despite he worked more than 40 hours per week during many weeks of his employment and instead, he was paid only straight time for all hours worked. The Defendants allegedly implemented a scheme to circumvent the overtime requirements of the FLSA by sharing employees between stores such that the employees work less than 40 hours at each store, but work more than 40 hours combined between the stores, and by paying them with separate paycheck from each store at the straight time rate. As a result, the Plaintiff and other similarly situated store clerks were not paid for all overtime hours worked in excess of 40 per week at the applicable one and one-half times their regular rates of pay, the suit says. The Corporate Defendants operate as a unified retail store under the name 7-Eleven retail store that was owned by Hany K. Menias. [BN] The Plaintiff is represented by: Robert S. Norell, Esq. ROBERT S. NORELL, P.A. 300 N.W. 70th Ave., Suite 305 Plantation, FL 33317 Tel: (954) 617-6017 Fax: (954) 617-6018 E-mail: rob@floridawagelaw.com SUBARU OF AMERICA: Anderson Suit Moved From N.D. Ala. to D.N.J. --------------------------------------------------------------- The case captioned as ROMAN ANDERSON, individually and on behalf of all others similarly situated v. SUBARU OF AMERICA, INC.; SUBARU CORP.; DENSO INTERNATIONAL AMERICA, INC.; and DENSO CORP., Case No. 2:20-cv-01587, was transferred from the Northern District of Alabama to the U.S. District Court for the District of New Jersey on January 19, 2021. The Clerk of Court for the District of New Jersey assigned Case No. 1:21-cv-00879-JHR-AMD to the proceeding. The case arises from the Defendants' alleged violations of the Hawaii's Unfair Deceptive Acts and Practices Statute, breach of implied warranty of merchantability, and breach of express warranty by failing to recall all vehicles that are equipped with defective Denso low-pressure fuel pumps. Subaru Of America, Inc. is a wholly-owned subsidiary of automobile manufacturer Subaru Corporation, with its principal place of business located at One, Subaru Drive, Camden, New Jersey. Subaru Corp. is an automobile manufacturer with a principal place of business in Shibuya-ku, Tokyo, Japan. Denso International America, Inc. is the North American division of Denso Corporation, with its principal place of business located at 24777 Denso Drive, Southfield, Michigan. Denso Corp. is a global supplier of advanced technology and components for automobiles, with its principal place of business in Kariya, Japan. [BN] The Plaintiff is represented by: Steven K. S. Chung, Esq. Timothy E. Ho, Esq. IMANAKA ASATO, LLLC 745 Fort Street Mall, 17th Floor Honolulu, HI 96813 Telephone: (808) 521-9500 Facsimile: (808) 541-9050 E-mail: schung@imanaka-asato.com tho@imanaka-asato.com - and – Timothy G. Blood, Esq. Paula R. Brown, Esq. Jennifer L. MacPherson, Esq. BLOOD HURST & O'REARDON, LLP 501 West Broadway, Suite 1490 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com pbrown@bholaw.com jmacpherson@bholaw.com - and – Courtney L. Davenport, Esq. THE DAVENPORT LAW FIRM LLC 18805 Porterfield Way Germantown, MD 20874 Telephone: (703) 901-1660 E-mail: courtney@thedavenportlawfirm.com - and – Michael T. Fraser, Esq. THE FRASER LAW FIRM, P.C. 4120 Douglas Blvd., Suite 306-262 Granite Bay, CA 95746 Telephone: (888) 557-5115 Facsimile: (866) 212-8434 E-mail: mfraser@thefraserlawfirm.net SUBARU OF AMERICA: Griffin Class Suit Transferred to D. New Jersey ------------------------------------------------------------------ The case captioned as KATHERINE GRIFFIN, JANET OAKLEY, and ADAM WHITLEY, individually and on behalf of all others similarly situated v. SUBARU OF AMERICA, INC., SUBARU CORPORATION, DENSO CORPORATION, and DENSO INTERNATIONAL AMERICA, INC., Case No. 2:20-cv-00563, was transferred from the Northern District of Alabama to the U.S. District Court for the District of New Jersey on January 19, 2021. The Clerk of Court for the District of New Jersey assigned Case No. 1:21-cv-00873 to the proceeding. The case arises from the Defendants' alleged violations of the Alabama's Deceptive Trade Practices Act and the Magnuson-Moss Warranty Act and for strict product liability, breach of express warranty, breach of implied warranty of merchantability, negligent recall, fraudulent omission, and unjust enrichment by designing, manufacturing and selling vehicles with defective Denso low-pressure fuel pumps and failing to recall all affected vehicles. Subaru Of America, Inc. is a wholly-owned subsidiary of automobile manufacturer Subaru Corporation, with its principal place of business located at One, Subaru Drive, Camden, New Jersey. Subaru Corp. is an automobile manufacturer with a principal place of business in Shibuya-ku, Tokyo, Japan. Denso Corp. is a global supplier of advanced technology and components for automobiles, with its principal place of business in Kariya, Japan. Denso International America, Inc. is the North American division of Denso Corporation, with its principal place of business located at 24777 Denso Drive, Southfield, Michigan. [BN] The Plaintiff is represented by: W. Daniel "Dee" Miles, III, Esq. Demet Basar, Esq. H. Clay Barnett, II, Esq. J. Mitch Williams, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 Commerce Street Montgomery, AL 36104 Telephone: (334) 269-2343 E-mail: Dee.Miles@Beasleyallen.com Demet.Basar@BeasleyAllen.com Clay.Barnett@BeasleyAllen.com Mitch.williams@Beasleyallen.com SUTTER VALLEY: Tinnin Allowed to File 1st Amended Class Complaint ----------------------------------------------------------------- The U.S. District Court for the Eastern District of California grants the Plaintiff's motion for leave to file a first amended class action complaint in the lawsuit titled KRISTEENA TINNIN v. SUTTER VALLEY MEDICAL FOUNDATION, Case No. 1:20-cv-00482-NONE-EPG (E.D. Cal.). The Court found the matter suitable for decision without the need for oral argument pursuant to Local Rule 230(g) and vacated the hearing on the motion set for January 8, 2021. Having considered the Plaintiff's motion, the Defendant's response, and the record in this case, the Court grants the motion for leave to amend. On October 1, 2020, the Court held a Scheduling Conference and set a deadline of November 6, 2020, for the Plaintiff to file a motion to amend the complaint. On November 25, 2020, the Plaintiff filed her motion to amend the complaint seeking to include a rest break claim and class claims. On December 23, 2020, the Defendant filed a response to the motion stating that it does not oppose amendment of the complaint but objected to a provision in the Plaintiff's proposed order granting the Defendant only 10 days to file a response to the proposed First Amended Complaint. The Defendant instead requests 21 days to file a response because it is contemplating a motion to stay, strike, or dismiss the class claims due to two earlier-filed class actions alleging the same set of claims. The Plaintiff did not file a reply. The Plaintiff's motion was supported by a declaration of counsel Juan Gamboa explaining that the motion was not filed before the November 6, 2020 deadline because the pleading amendment deadline was inadvertently calendared incorrectly, and counsel promptly filed the motion upon realizing the mistake. Further, the case is in the early stages and the Defendant has provided written consent to amendment. Accordingly, the Court finds good cause for amendment and will grant the motion. It will further grant the Defendant's request for 21 days to file a response to the First Amended Complaint. Accordingly, the Plaintiff's Motion for Leave to File First Amended Complaint is granted. Within seven days of the date of the Order, the Plaintiff will file her First Amended Complaint. The Defendant's response to the First Amended Complaint will be filed and served within 21 days of service of the First Amended Complaint. A full-text copy of the Court's Order dated Jan. 14, 2021, is available at https://tinyurl.com/y2wove6n from Leagle.com. TARGET CORP: Ninth Cir. Affirms Summary Judgment in Greenberg Suit ------------------------------------------------------------------ In the case, TODD GREENBERG, On Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant v. TARGET CORPORATION, a Minnesota Corporation; INTERNATIONAL VITAMIN CORPORATION, a New Jersey Corporation; PERRIGO COMPANY OF SOUTH CAROLINA, INC., Defendants-Appellees, Case No. 19-16699 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's grant of summary judgment to the Defendants. Millions of Americans buy dietary supplements each year. The U.S. Food and Drug Administration ("FDA") has limited authority under the Federal Food, Drug, and Cosmetic Act (FDCA) to regulate dietary supplements, which include vitamin, botanical, enzyme, and amino acid products. The FDA does not require pre-approval of labels on these products, but it insists that the statements be truthful and not misleading. The FDA also allows the product labels to feature so-called "structure/function" claims that describe the role of a nutrient or ingredient on the structure or function of the human body. So, for example, a vitamin product can tout that "calcium supports strong bones" because scientific evidence backs that claim, even if not everyone needs or benefits from more calcium. The case challenges a structure/function claim for a vitamin called biotin. The label for the biotin product at issue states that it "helps support healthy hair and skin." While the Plaintiff agrees that biotin can promote hair and skin health, he argues that the statement is still misleading because most people obtain enough biotin from their regular diets and thus the product provides no health benefit for them. He brought claims under California's Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200, et seq., and California's Consumers Legal Remedies Act, Cal. Civ. Code Sections 1750, et seq. The district court granted summary judgment to the Defendants, ruling that the Plaintiff's state law claims are preempted by federal law that allows the challenged structure/function claim. It held that the Defendants' biotin statement met the statutory requirements for a structure/function claim: There was substantiation for the truthful claim, the product label included the appropriate disclosures, and it did not suggest that the product could treat diseases. It ruled that Greenberg was seeking to impose an additional disclosure requirement by claiming that the product label was deceptive, even though it complied with the federal requirements for a structure/function claim. The Ninth Circuit concludes that because the structure/function claim about biotin meets the FDCA's requirements, Greenberg's state law claims amount to an imposition of different standards from the FDCA. Greenberg essentially seeks to impose an additional requirement that dietary supplement labels can make structure/function claims only if consumers are likely to benefit from the product. But that requirement "is not identical to the requirement of section 343(r)." It is, thus, preempted. To be sure, a structure/function claim may be misleading if it fails to disclose a harmful aspect of the nutrient. For example, in Dachauer v. NBTY, Inc., 913 F.3d 844, 848 (9th Cir. 2019), the Ninth Circuit held that the FDCA did not preempt the Plaintiff's claim that vitamin E increased the risk of all-cause mortality. There is no such allegation in the case, the Court finds. Likewise, if a structure/function claim is factually false or lacks substantiation, then state law claims will not be preempted. But that is not the case. The Court, thus, holds that the FDCA authorizes the Defendants' structure/function claim about biotin and preempts Greenberg's state law claims challenging them. The Ninth Circuit affirmed the district court's order because the plain language of the statute makes clear that a structure/function claim addresses only the nutrient's role in the human body, not the product's health impact on the general population. It opines that the Defendants have met all of the federal requirements for making a structure/function claim, including having substantiation showing that the biotin nutrient can promote healthy hair and skin. Federal law thus allows the Defendants to make this structure/function claim and preempts the the Plaintiff's state law causes-of-action. A full-text copy of the Court's Jan. 13, 2021 Opinion is available at https://tinyurl.com/y69fwvw7 from Leagle.com. Elaine A. Ryan -- eryan@bffb.com -- (argued) and Carrie A. Laliberte -- claliberte@bffb.com -- Bonnett Fairbourn Friedman & Balint P.C., Phoenix, Arizona; Patricia N. Syverson -- psyverson@bffb.com -- Bonnett Fairbourn Friedman & Balint P.C., in San Diego, California; for Plaintiff-Appellant. Matthew R. Orr -- morr@calljensen.com -- (argued), William P. Cole -- wcole@calljensen.com -- and Samuel G. Brooks -- sbrooks@calljensen.com -- Call & Jensen ACP, in Newport Beach, California, for Defendants-Appellees. J. Kathleen Bond, and Jennifer M.S. Adams -- jennifer@amintalati.com -- Amin Talati Wasserman LLP, in Chicago, Illinois, for Amicus Curiae Council for Responsible Nutrition. TASTEBUD MARKET: Candia Seeks Unpaid OT and Spread-of-Hours Wages ----------------------------------------------------------------- MIGUEL CANDIA, on behalf of himself and all others similarly situated, Plaintiff v. TASTEBUD MARKET LLC d/b/a MODERN BREAD AND BAGEL, d/b/a ARBA, JOSHUA BORENSTEIN, and ORLY GOTTESMAN, Defendants, Case No. 1:21-cv-00472 (S.D.N.Y., January 19, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law by failing to compensate the Plaintiff and all others similarly situated restaurant workers overtime pay for all hours worked in excess of 40 hours in a workweek and failing to pay them spread-of-hours premium. The Plaintiff was hired by the Defendants as a food preparer at Modern Bread and Bagel restaurant in New York, New York in January 2019 and was promoted as a cook in January 2020. His employment was terminated in October 2020. Tastebud Market LLC is an owner and operator of the restaurants called Modern Bread and Bagel and Arba located at 472 Columbus Avenue, New York, New York. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 TOYOTA MOTOR: Deadline to File Class Status Bid Set for April 9 --------------------------------------------------------------- In the class action lawsuit captioned as KATHLEEN RYAN-BLAUFUSS, CATHLEEN MILLS, and KHEK KUAN, on behalf of themselves and all others similarly situated, v. TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., and DOES 1-10, Case No. 8:18-cv-00201-JLS-KES (C.D. Cal.), the Hon. Judge Josephine L. Staton entered an order granting that the deadlines for the Court's current Scheduling Order are modified as follows: Event Current Deadline Proposed Schedule Last Day to File Motion Jan. 29, 2020 April 9, 2021 for Class Certification: Last Day to File March 29, 2021 June 8, 2021 Opposition to Motion for Class Certification: Last Day to File Reply April 30, 2021 August 6, 2021 ISO Motion for Class Certification: Hearing on Motion for May 14, 2021 August 20, 2021 Class Certification (10:30 a.m.): Fact Discovery Cut Off Oct. 20, 2021 Jan. 27, 2022 Last Day to File Dec. 13, 2021 March 29, 2022 Motions (excluding Daubert Motions and all other Motions in Limine) Last Day to Serve Dec. 13, 2021 March 29, 2022 Initial Expert Reports: Last Day to Serve Jan. 14, 2022 April 28, 2022 Rebuttal Expert Reports: Expert Discovery Feb. 25, 2022 June 15, 2022 Cut-Off: Last Day to Conduct March 11, 2022 July 15, 2022 Settlement Proceedings: Last Day to April 15, 2022 August 15, 2022 file Daubert Motions: Last Day to File May 5, 2022 Sept. 14, 2022 Motions in Limine (excluding Daubert motions) Final Pretrial June 6, 2022 Oct. 14, 2022 Conference (10:30 a.m.): The Court said, "Applications for ex parte relief are generally disfavored; however, having fully considered the arguments of the Application, as well as the evidence presented, the Court finds this to be the rare instance where the Plaintiffs are without fault and would be prejudiced if they are required to file their motion for class certification before the Magistrate Judge has had an opportunity to resolve discovery disputes regarding evidence that the Plaintiffs contend is essential to their class certification motion. Moreover, having reviewed the materials, and being aware of the stipulated discovery process giving rise to the instant dispute, the Court finds that the Plaintiffs are without fault in creating the circumstances requiring them to move ex parte rather than through a regularly noticed motion." Toyota Motor is a Japanese multinational automotive manufacturer headquartered in Toyota, Aichi, Japan. It was founded by Kiichiro Toyoda and incorporated on August 28, 1937. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/2LY3dSN at no extra charge.[CC] TRITERRAS INC: Howard G. Smith Reminds of Feb. 19 Deadline ---------------------------------------------------------- Law Offices of Howard G. Smith reminds investors of the upcoming February 19, 2021 deadline to file a lead plaintiff motion in the case filed on behalf of investors who purchased Triterras, Inc. f/k/a Netfin Acquisition Corp.securities between August 20, 2020 and December 16, 2020, inclusive (the "Class Period"). Investors suffering losses on their Triterras investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. Triterras is a fintech company focused on trade and trade finance. It operates Kratos, a commodity trading and trade finance platform that connects commodity traders to trade and source capital from lenders directly online. Triterras formed via merger of Netfin and Triterras Fintech Pte. Ltd. ("Triterras Fintech"), which closed on November 11, 2020 (the "Merger"). Rhodium Resources Pte. Ltd. ("Rhodium") is a commodity trading business controlled by Srinivas Koneru, the Company's Chief Executive Officer ("CEO"). Rhodium enabled the launch of the Kratos platform, and substantially all of the Company's users were referred to it by Rhodium. On December 17, 2020, Triterras stated that Rhodium was seeking a moratorium to shield itself from creditor actions while it planned a restructuring of its debts and continue its business as a going concern. On this news, the Company's share price fell $4.11, or 31%, to close at $9.09 per share on December 17, 2020, on unusually heavy trading volume. The Company's warrant price fell $1.09, or 35%, to close at $2.01 per warrant on December 17, 2020, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) the extent to which Company's revenue growth relied on Triterras' relationship with Rhodium to refer users to the Kratos platform; (2) that Rhodium faced significant financial liabilities that jeopardized its ability to continue as a going concern; (3) that, as a result, Rhodium was likely to refer fewer users to the Company's Kratos platform; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Triterras securities during the Class Period, you may move the Court no later than February 19, 2021 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. Contact Information: Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com http://www.howardsmithlaw.com [GN] TSR INC: Final Settlement Approval Hearing Set for April 21 ----------------------------------------------------------- TSR, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 19, 2021, for the quarterly period ended November 30, 2020, that the final settlement approval hearing in the class action suit initiated by Susan Paskowitz, is set for April 21, 2021. On October 16, 2018, the Company was served with a complaint filed on October 11, 2018 in the Supreme Court of the State of New York, Queens County, by Susan Paskowitz, a stockholder of the Company, against the Company; Joseph F. Hughes and Winifred M. Hughes; former directors Christopher Hughes, Raymond A. Roel, Brian J. Mangan, Regina Dowd, James J. Hill, William Kelly, and Eric Stein; as well as stockholders Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC. The complaint purports to be a class action lawsuit asserting claims on behalf of all minority stockholders of the Company. Ms. Paskowitz alleges the following: the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock ("controlling interest") to Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC was in breach of Joseph F. Hughes' and Winifred M. Hughes' fiduciary duties and to the detriment of the Company's minority stockholders; the former members of the Board of Directors of the Company named in the complaint breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented Joseph F. Hughes and Winifred M. Hughes from selling their shares and preserved a higher premium for all stockholders; Zeff, QAR, and Fintech are "partners" and constitute a "group." Ms. Paskowitz also asserts that Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC aided and abetted Joseph F. Hughes' and Winifred M. Hughes' conduct, and ultimately sought to buy out the remaining shares of the Company at an unfair price. On June 14, 2019, Ms. Paskowitz filed an amended complaint in the Stockholder Litigation in the Supreme Court of the State of New York, Queens County against the members of the Board of Directors and Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC, which asserts substantially similar allegations to those contained in the October 11, 2018 complaint, but omits Regina Dowd, Joseph F. Hughes and Winifred M. Hughes as defendants. In addition to the former members of the Board of Directors named in the original complaint, the amended complaint names former directors Ira Cohen, Joseph Pennacchio, and William Kelly as defendants. The amended complaint also asserts a derivative claim purportedly on behalf of the Company against the named former members of the Board of Directors. The amended complaint seeks declaratory judgment and unspecified monetary damages. The complaint requests: (1) a declaration from the court that the former members of the Board of Directors named in the complaint breached their fiduciary duties by failing to timely adopt a stockholder rights plan, which resulted in the loss of the ability to auction the Company off to the highest bidder without interference from Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC; (2) damages derivatively on behalf of the Company for unspecified harm caused by the former Directors' alleged breaches of fiduciary duties; (3) damages and equitable relief derivatively on behalf of the Company for the former Directors' alleged failure to adopt proper corporate governance practices; and (4) damages and injunctive relief against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC based on their knowing dissemination of false or misleading public statements concerning their status as a group. The complaint has not assigned any monetary values to alleged damages. On July 15, 2019, the Company filed an answer to the amended complaint in the Stockholder Litigation and cross-claims against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC for breaches of their fiduciary duties, aiding and abetting breaches of fiduciary duties, and indemnification and contribution based on their misappropriation of material nonpublic information and their failure to disclose complete and accurate information in SEC filings concerning their group actions to attempt a creeping takeover of the Company, which was thereafter amended on July 26, 2019. In addition, on December 21, 2018, the Company filed a complaint in the United States District Court, Southern District of New York, against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani for violations of the disclosure and anti-fraud requirements of the federal securities laws under Sections 13(d) and 14(a) of the Securities Exchange Act of 1934, and the related rules and regulations promulgated by the SEC, for failing to disclose to the Company and its stockholders their formation of a group and the group's intention to seize control of the Company. The complaint requests that the court, among other things, declare that the defendants have solicited proxies without filing timely, accurate and complete reports on Schedule 13D and Schedule 14A in violation of Sections 13(d) and 14(a) of the Exchange Act, direct the defendants to file with the SEC complete and accurate disclosures, enjoin the defendants from voting any of their shares prior to such time as complete and accurate disclosures have been filed, and enjoin the defendants from further violations of the Exchange Act with respect to the securities of the Company. On January 7, 2019, Ms. Paskowitz filed a related action against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani in the Southern District of New York, which asserts claims against them for breach of fiduciary duty and under federal securities laws similar to those asserted in the Company's action. Although the Company is not a party to Ms. Paskowitz's action, the court has determined to treat the Company's and Ms. Paskowitz's respective actions as related. On August 7, 2019, following the Company's initial rescheduling of the 2018 annual meeting of stockholders for September 13, 2019 and the filing of Preliminary Proxy Statements by the Company and Zeff Capital, L.P., Zeff Capital, L.P. filed a complaint in the Delaware Court of Chancery against the Company seeking an order requiring the Company to hold its next annual meeting of stockholders on or around September 13, 2019, and obligating the Company to elect Class I and Class III directors at that annual meeting. On August 13, 2019, the Company filed a motion for preliminary injunction in the SDNY Action in advance of the Company's 2018 Annual Meeting originally scheduled for September 13, 2019, and requested leave to file a motion for expedited discovery. The Court denied the Company's motion for preliminary injunction but ordered Zeff Capital, L.P. to “make clear that the second set of directors” described by Zeff Capital, L.P. in its preliminary proxy statement "is contingent upon the resolution of a proceeding in Delaware Chancery Court." On August 30, 2019, the Company entered into the Settlement Agreement with the Investor Parties with respect to the proxy contest pertaining to the election of directors at the 2018 Annual Meeting, which was held on October 22, 2019. Pursuant to the Settlement Agreement, the parties agreed to forever settle and resolve any and all disputes between the parties, including without limitation disputes arising out of or relating to the following litigations: (i) The complaint relating to alleged breaches of fiduciary duties filed on November 1, 2018 by Fintech Consulting LLC against the Company in the Delaware Court of Chancery, which was previously dismissed voluntarily; (ii) The complaint for declaratory and injunctive relief for violations of the federal securities laws filed on December 21, 2018 by the Company against the Investor Parties in the United States District Court in the Southern District of New York; (iii) Cross-claims relating to alleged breaches of fiduciary duties and for indemnification and contribution filed on July 26, 2019 by the Company against the Investor Parties in New York Supreme Court, Queens County; and (iv) The complaint to compel annual meeting of stockholders filed on August 7, 2019 by Zeff Capital, L.P. against the Company in the Delaware Court of Chancery. No party admitted any liability by entering into the Settlement Agreement. The Settlement Agreement did not resolve the Stockholder Litigation filed by Susan Paskowitz against the Company, Joseph F. Hughes, Winifred M. Hughes and certain former directors of the Company in the Supreme Court of the State of New York on October 11, 2018. Concurrently with the Settlement Agreement, the parties entered into a share repurchase agreement which provided for the purchase by the Company and Christopher Hughes, the Company's former President and Chief Executive Officer, of the shares of the Company's Common Stock held by the Investor Parties. The Settlement Agreement also contemplated that, if the Repurchase was completed, the Company would make a settlement payment to the Investor Parties at the closing of the Repurchase in an amount of approximately $1,500,000. However, the Repurchase and Settlement Payment were not completed by the deadline of December 30, 2019. Pursuant to the Settlement Agreement, (1) the Company agreed to adopt an amendment to the Company's Amended and Restated By-Laws, dated April 9, 2015, providing that stockholders of the Company owning at least forty percent (40%) of the issued and outstanding Common Stock may request a special meeting of stockholders; (2) the Investor Parties agreed not to take any action to call or otherwise cause a special meeting of stockholders to occur prior to December 30, 2019 (unless the Company had failed to hold the 2018 Annual Meeting); (3) the Company agreed to amend and restate the Company's Rights Agreement, dated August 29, 2018, to confirm that a Distribution Date (as defined in the Amended Rights Agreement) shall not occur as a result of any request by any of the Investor Parties for a special meeting; (4) the Company agreed that prior to the earlier of (A) the completion of the Repurchase and the payment of the Settlement Payment and (B) January 1, 2020, the Board of Directors shall not consist of more than seven (7) directors. Pursuant to the terms of the Settlement Agreement, the two nominees for director made by Zeff Capital, L.P. were elected as directors at the Company's 2018 Annual Meeting held on October 22, 2019. Please see the Company's current Report on Form 8-K filed with the SEC on October 21, 2019 for more information about the background of the election of directors at the Company's 2018 Annual Meeting. Pursuant to the terms of the Settlement Agreement, inasmuch as the Repurchase was not completed and the Settlement Payment was not made by December 30, 2019, the members of the Board of Directors (other than the two directors who were nominated by Zeff Capital, L.P. and elected as directors at the 2018 Annual Meeting) resigned from the Board effective 5:00 p.m. Eastern Time on December 30, 2019. Immediately thereafter, the two remaining directors appointed Robert Fitzgerald to the Board of Directors. Please see the Company's Current Report on Form 8-K filed with the SEC on December 31, 2019 for more information about the background and the appointment of Robert Fitzgerald. The foregoing is not a complete description of the terms of the Settlement Agreement and the Share Repurchase Agreement. For a further description of the terms of the Settlement Agreement and the Share Repurchase Agreement, including copies of the Settlement Agreement and Share Repurchase Agreement, please see the Company's Current Report on Form 8-K filed by the Company with the SEC on September 3, 2019. On October 21, 2019, the Company entered into a Memorandum of Understanding (the MOU) with Susan Paskowitz providing for the settlement of the Stockholder Litigation filed by Ms. Paskowitz on October 11, 2018. The MOU provides for the settlement of the claims by Ms. Paskowitz that (1) the former members of the Board named in the original complaint allegedly breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock to the Investor Parties; (2) the former members of the Board named in the amended complaint allegedly breached their fiduciary duties and failed to adopt proper corporate governance practices; and (3) the Investor Parties acted as "partners" and constituted a "group" in their purchase of shares from Joseph F. Hughes and Winifred M. Hughes and knowingly disseminated false or misleading public statements concerning their status as a group. Pursuant to the terms of the MOU, the Company will (1) implement certain corporate governance reforms described in the MOU within 30 days of a final order and judgment entered by the court, and keep these corporate governance reforms in place for 5 years from the time of the final order and judgment; and (2) acknowledge that the plaintiff, Ms. Paskowitz, and her counsel provided a substantial benefit to the Company and its stockholders through the prosecution of the Stockholder Litigation and other related actions filed by Ms. Paskowitz. On December 16, 2019, the Company entered into a Stipulation and Agreement of Settlement with Susan Paskowitz in the Stockholder Litigation. The Stipulation retains the terms and conditions of settlement of the Stockholder Litigation contained in the MOU described in the preceding paragraph, with the addition that the Company will pay to plaintiff's counsel an award of attorneys' fees and reimbursement of expenses in the amount of $260,000. The Stockholder Litigation Settlement is intended to fully, finally, and forever compromise, settle, release, resolve, and dismiss with prejudice the Stockholder Litigation and all claims asserted therein directly against all present and former defendants and derivatively against them on behalf of the Company. The Stockholder Litigation Settlement does not contain any admission of liability, wrongdoing or responsibility by any of the parties, and provides for mutual releases by all parties. Each stockholder of the Company is a member of the plaintiff class unless such stockholder opts out of the class. The Company expects that the full amount of the $260,000 settlement payment will be covered by insurance proceeds. The Stipulation remains subject to approval by the court. The Stipulation is independent of the Settlement Agreement and Share Repurchase Agreement that the Company had entered into with the Investor Parties. On December 24, 2019, Ms. Paskowitz moved for preliminary approval of the Stockholder Litigation Settlement. On May 21, 2020, the Court entered an order preliminarily approving the Stockholder Litigation Settlement. On July 9, 2020, the parties submitted an agreed upon proposed scheduling order for final approval of the Stockholder Litigation Settlement and a proposed mailing notice of the Stockholder Litigation Settlement to the Company's stockholders. On December 16, 2020, the Court entered a scheduling order, which approved the form of the parties' mailing notice, and provided that the hearing for final approval of the Stockholder Litigation Settlement will be held on April 20, 2021. Among other deadlines, the scheduling order provided that TSR must provide notice of the Stockholder Litigation Settlement to applicable stockholders by December 31, 2021, and that any objections to the Stockholder Litigation Settlement must be filed by April 5, 2021. Although the Company believes that the Stockholder Litigation Settlement represents a fair and reasonable compromise of the matters in dispute in the Stockholder Litigation, there can be no assurance that the court will approve the Stockholder Litigation Settlement as proposed, or at all. TSR, Inc. provides contract computer programming services in the New York metropolitan area, New England, and the Mid-Atlantic region. TSR, Inc. was founded in 1969 and is based in Hauppauge, New York. TWIN CITY: Pennsylvania Court Dismisses Zagafen Insurance Suit -------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania grants the Defendant's Motion to Dismiss Plaintiffs' Amended Class Action Complaint in the lawsuit styled ZAGAFEN BALA, LLC, VK TAVERN, LLC, VINTAGE KOSHER, LLC, REAL FRESH, INC., individually and on behalf of all others similarly situated v. TWIN CITY FIRE INSURANCE COMPANY, Case No. 20-3033 (E.D. Pa.). The Plaintiffs in the case, like many business owners throughout Pennsylvania, have been forced to close or modify their operations due to the COVID-19 pandemic and consequent government closure orders. Plaintiff Zagafen owns a kosher dairy restaurant, Plaintiff VK Tavern owns a kosher meat restaurant, Plaintiff Vintage Kosher operates a kosher wine and spirits shop, and Plaintiff Real Fresh, doing business as Pagano's Restaurant and Bar, is a "food emporium" located in Philadelphia. Twin City is a property and casualty insurance company and a subsidiary of Hartford Financial Group, Inc. All the Plaintiffs purchased Business Owner's coverage from the Defendant. Their Policies are "all risk" policies, which provide coverage for all covered losses unless explicitly excluded or limited. Specifically, the Policies cover "direct physical loss of or direct physical damage to Covered Property caused by or resulting from a Covered Cause of Loss." "Covered Cause of Loss," in turn, is defined as "risks of direct physical loss unless the loss is" otherwise excluded or limited. The Policies include identical riders providing coverage for "Business Income and Extra Expense" and "Business Income for Civil Authority Actions." They also contain a relevant exclusion clause ("Virus Exclusion"), which states that Twin City "will not pay for loss or damage caused directly or indirectly by presence, growth, proliferation, spread or any activity of virus." Any loss or damage caused directly or indirectly by the presence, proliferation, spread or any activity of a virus is excluded from coverage. The Plaintiffs suffered business income losses and sought indemnity from their insurance provider, Twin City, under their all-risk commercial property policies. Twin City denied the Plaintiffs' claims. The Plaintiffs then filed suit on behalf of themselves and a putative class against Twin City for breach of contract and seeking a declaratory judgment. In their Amended Complaint, the Plaintiffs aver they were forced to "suspend or reduce business" due to orders issued by civil authorities in Pennsylvania mandating the closure of their on-site services to protect patrons and employees from exposure to COVID-19. They claim their businesses are not considered "essential," and have, therefore, been subject to a variety of Closure Orders by state and local authorities. The Plaintiffs do not allege that the coronavirus was present at any of the insured properties. The matter currently before the Court is Twin City's 12(b)(6) Motion to Dismiss Plaintiffs' Amended Class Action Complaint for failure to state a claim on which relief can be granted. District Judge Chad F. Kenney states that the issue before the Court is one of contract interpretation. The interpretation of an insurance contract is a question of law. The Court must interpret the plain language of the contract read in its entirety, giving effect to all its provisions. The Court gives the words of the Policies "their natural, plain, and ordinary sense" meaning, citing Madison Const. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 108 (Pa. 1999). The facts pleaded in the Plaintiffs' Amended Complaint do not allege losses that bear a causal connection to the physical condition of the premises or show that the conditions operated to completely or near completely preclude operation of the premises as intended, Judge Kenney notes. The Plaintiffs have not pleaded that their losses were caused directly by the coronavirus, but rather that the "closure orders operate as a blockade that prevents employees and patrons from entering the businesses for their intended purpose." The Plaintiffs allege that their businesses were not considered "essential," and were, therefore, subject to a variety of Closure Orders issues by state and local authorities, preventing them from operating their businesses or limiting their operations. Judge Kenney opines that it is not loss of or damage to property within the meaning of the Policies. The Plaintiffs' allegations show they were denied some access to their insured properties or were only able to run their businesses for limited purposes, which caused them to lose income. However, Judge Kenney avers, no Closure Order by any authority identified by the Plaintiffs required restaurants and shops like those run by them to close completely. Thus, Judge Kenney also holds, the Plaintiffs' properties remained inhabitable and usable, albeit in limited ways. To the extent the Plaintiffs argue that the threatened presence of the virus relates to the physical condition of the property, they have similarly not shown that their properties were rendered completely or almost completely uninhabitable or unusable. Further, the presence or threatened presence of the coronavirus is a physical condition that can be largely remediated by mask wearing, social distancing, and disinfecting surfaces. This does not meet the standard for a physical loss caused by a source invisible to the naked eye. The Plaintiffs have pleaded no facts that lead the Court to believe they reasonably expected business losses not tied to any kind of actual damage to property would be covered. Further, they have alleged no change in the policy that they were unaware of that would give rise to a reason to go against the unambiguous language here. The Policies' Civil Authority Coverage, like the Business Income Coverage, is predicated on physical loss or damage to property. The Civil Authority Coverage applies only when the insured is prohibited from accessing their own property due to a government order, which must itself be the direct result of a Covered Cause of Loss to a property in the immediate area of the insured property. The Plaintiffs argue that the Civil Authority Coverage applies because property in the immediate area around the insured property faces the same "risks of direct physical loss" the insured properties do -- the presence of the virus or threatened presence of the virus. Judge Kenney finds that it is not reasonably disputed that the Closure Orders were a direct result of the COVID-19 pandemic or that the Closure Orders limited the Plaintiffs' ability to operate their businesses. That has no bearing on determining coverage under the Civil Authority provision. However, the Plaintiffs' claims here fail for the same reason they do in the Business Income Coverage issue. That the Closure Orders themselves caused income loss by depriving the Plaintiffs of the use of their properties to a certain extent is unfortunate but of no mind; the Plaintiffs are not covered for that under a plain language reading of the Civil Authority Coverage, Judge Kenney opines. Even if the Plaintiffs had plausibly alleged their losses qualified for Business Income Coverage or Civil Authority Coverage, the Virus Exclusion precludes coverage, Judge Kenney holds. The Virus Exclusion provides that Twin City "will not pay for loss or damage caused directly or indirectly by presence, growth, proliferation, spread or any activity of virus." The exclusion applies "regardless of any other cause or event that contributes concurrently or in any sequence to the loss" and "whether or not the loss event results in widespread damage or affects a substantial area." Even if the virus was not the direct cause of the Plaintiffs' losses, it was at least an indirect cause, which is sufficient to bar coverage under the Virus Exclusion clause, Judge Kenney concludes. Hence, the Court will not grant the Plaintiffs leave to amend their Amended Complaint because they can allege no facts related to their Policies, their losses, or the reasons for their losses that could bring their claims within the coverage of the Policies. For these reasons, the Plaintiffs are not entitled to coverage for the losses they have suffered. Their claims for breach of contract and declaratory relief will be dismissed with prejudice as to Plaintiffs Zagafen, Tavern, Vintage Kosher, and Pagano's, and without prejudice as to the putative class. A full-text copy of the Court's Memorandum dated Jan. 14, 2021, is available at https://tinyurl.com/y2m983h7 from Leagle.com. UNILEVER PLC: Faces Class Action Over 'Defective' Shampoo Products ------------------------------------------------------------------ Ryan Nelson, writing for HBW Insight, reports that the presence of formaldehyde releaser DMDM hydantoin in Unilever's TRESemme Keratin shampoos pose undisclosed risks of hair loss and/or scalp irritation, as shown by hundreds of consumer complaints online, plaintiffs allege in proposed class actions filed in Illinois and New Jersey federal courts. [GN] UNILEVER UNITED: Vizcarra Must File Class Status Bid by June 25 --------------------------------------------------------------- In the class action lawsuit captioned as LISA VIZCARRA, individually and on behalf of all others similarly situated, v. UNILEVER UNITED STATES, INC., Case No. 4:20-cv-02777-YGR (N.D. Cal.), the Hon. Judge Yvonne Gonzalez Rogers entered an order that the discovery schedule is revised as follows: -- Close of Fact Discovery by 6/11/2021. -- Class Certification Opening Reports due by 6/18/2021. -- Class Certification Rebuttal Reports due by 7/26/2021. -- Class Certification Motion filed by 6/25/2021. -- Opposition/ Responses due by 7/26/2021. -- Replies due by 8/23/2021. -- Class Certification Motion Hearing set for 9/14/2021. The Parties say that they have been assiduously working on discovery, but need additional time to complete it. The Defendant has encountered difficulties producing discovery due to COVID-19 restrictions, but expect to be able to produce a greater amount of discovery in the next several weeks, including, but not limited to electronically stored information. On July 20, 2020, this Court entered an order setting the following schedule: -- Close of Fact Discovery by 2/12/2021. -- Class Certification Opening Reports due by 2/19/2021. -- Class Certification Rebuttal Reports due by 3/26/2021. -- Class Certification Motion filed by 2/26/2021. -- Opposition/ Responses due by 3/26/2021. -- Replies due by 4/23/2021. -- Class Certification Motion Hearing set for 5/11/2021. Unilever manufactures personal care products. The Company offers laundry detergents, shampoos, soaps, fragrances, and body washes as well as provides ice creams, oils, mayonnaise, spreads, sauces, tea. Unilever United States serves customers worldwide. A copy of the Court's order granting stipulation extending discovery schedule and briefing deadlines dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/3oaOelC at no extra charge.[CC] Counsel for the Plaintiffs, are: Michael R. Reese, Esq. George V. Granade, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 E-mail: mreese@reesellp.com granade@reesellp.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. P 505 Northern Boulevard, Suite 311 Great Neck, New York 11021 Telephone: (516) 303-0552 E-mail: spencer@spencersheehan.com Counsel for the Defendant, are: August T. Horvath, Esq. Jennifer Yoo, Esq. FOLEY HOAG LLP 1301 Ave. of the Americas, 25 th floor New York, NY 10019 Telephone: (646) 927-5544 E-mail: AHorvath@FoleyHoag.com jyoo@foleyhoag.com - and - Christopher A. Nedeau, Esq. THE NEDEAU LAW FIRM 750 Battery Street, 7th Floor San Francisco, CA 94111 Telephone: (415) 516-4010 E-mail: cnedeau@nedeaulaw.net UNITED FUND: Fabricant Sues Over Unsolicited Telemarketing Calls ---------------------------------------------------------------- The case, TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. UNITED FUND ADVISORS, LLC, and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:21-cv-00345 (C.D. Cal., January 14, 2021) arises from the Defendant's alleged negligent and willful violations of the Telephone Consumer Protection Act. In an attempt to promote its service, the Defendant allegedly contacted the Plaintiff on his cellular telephone number ending in -0058 beginning in or around September 2020 by using an "automatic telephone dialing system" (ATDS). The Plaintiff asserts that he never provided his "prior express consent" to the Defendant to be contacted on his cellular telephone via an ATDS or an artificial or prerecorded voice. According to the complaint, the Plaintiff and other similarly situated persons were harmed by the Defendant's unsolicited telemarketing calls by causing them to incur certain charges or reduced telephone time for which they had previously paid, and invading their privacy. The Plaintiff brings this complaint as a class action complaint seeking an injunctive relief prohibiting such conduct in the future, as well as statutory damages, and any relief that the Court deems just and proper. United Fund Advisors, 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 UNITED STATES: Lado Class Suit Gets TRO on "Final Transit Rule" --------------------------------------------------------------- In the class action lawsuit captioned as AL OTRO LADO, et al., v. PETER T. GAYNOR, Acting Secretary of Homeland Security, et al., Case No. 3:17-cv-02366-BAS-KSC (S.D. Cal.), the Hon. Judge Cynthia Bashant entered an order granting the Plaintiffs' Motion for a Temporary Restraining Order requesting that the Court prohibit the Defendants from applying yet another regulation -- titled Asylum Eligibility and Procedural Modification ("Final Transit Rule") -- to members of the provisional class previously certified by this Court. Accordingly, the Court grants Plaintiffs' Motion for a TRO. The Defendants are temporarily enjoined from applying 85 Fed. Reg. 82,260 (Dec. 17, 2020) to all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. Port of Entry (POE) before July 16, 2019 because of the U.S. government's metering policy, and who continue to seek access to the U.S. asylum process. This Order extends to the Defendants and any other federal officials and personnel involved in 11 the asylum and/or removal process. The Court further ordered that a telephonic oral argument on the issues raised in the Motion is set for February 3, 2021 at 1:30 p.m. This temporary restraining order shall remain in effect until this date. The Plaintiffs' underlying claims in this case concern Defendants' purported "Turnback Policy," which included a "metering" or "waitlist" system in which asylum-seekers at the southern border were instructed "to wait on the bridge [at a port of entry], in the pre-inspection area, or at a shelter" or were simply told that "they [could not] be processed because the ports of entry [were] 'full' or 'at capacity.'" The Plaintiffs allege that this policy was intended to deter individuals from seeking asylum in the United States, in violation of constitutional, statutory, and international law. The Court has certified the class in this underlying dispute. The parties have also filed and briefed cross-motions for summary judgment that await resolution. During the pendency of this action, Defendants have promulgated new asylum eligibility regulations -- including the Final Transit Rule -- that have threatened the preservation of the underlying class of metered asylum-seekers. This has led to a morass of litigation ancillary to the primary case regarding the lawfulness of Defendants' metering practices. A copy of the Court's temporary restraining order dated Jan. 18, 2020 is available from PacerMonitor.com at https://bit.ly/2NqLuns at no extra charge.[CC] VILLAGES TRI-COUNTY: Watson Seeks to Certify Class of Nurses ------------------------------------------------------------ In the class action lawsuit captioned as BRENDA WATSON, on behalf of herself and on behalf of all others similarly situated, v. VILLAGES TRI-COUNTY MEDICAL CENTER, INC., Case No. 5:19-cv-00515-JSM-PRL (M.D. Fla.), the Plaintiff asks the Court to enter an order: A. conditionally certifying a Florida class of: "current and former registered nurses (RNs), licensed practical nurses LPNs, and certified nursing assistant (CNAs) who worked for the Defendant at The Villages Regional Hospital in The Villages Florida from December 15, 2017, through December 15, 2020 who believe they were not paid minimum wage or overtime for hours spent taking Advanced Cardiovascular Life Support (ACLS) and Basic Life Support (BLS) classes required by the Defendant;" B. directing the Defendant to produce, in an electronic readable format, to the undersigned counsel within 14 days of the Order granting this Motion a list containing the full names, last known addresses, telephone numbers, and e-mail addresses of putative class; C. directing the Defendant to send initial notice to all individuals whose names appear on the list produced by the Defendant’s counsel by first-class mail; D. directing the Defendant to post at all of its business locations located a copy of the initial notice; E. directing the Defendant to send a follow-up notice to all individuals whose names appear on the list produced by the Defendant's counsel but who, by the 14th day prior to the close of the Court-approved notice period, have yet to opt in to the instant action; and F. providing all individuals whose names appear on the list produced by the Defendant's counsel a total of 60 days from the date the notices are initially mailed to file a Consent to Become Opt-In Plaintiff form. This is a collective action to enforce the minimum wage and overtime provisions of the Fair Labor Standards Act. The Defendant operates a hospital in Sumter County, Florida. Plaintiff Watson, began working for the Defendant as a registered nurse in 2013 and is still employed by the Defendant today. She brings this action on behalf of herself and a group of similarly-situated RNs, LPNs, and CNAs employed by the Defendant who were not paid minimum wage or overtime (time-and-a-half) for hours spent taking ACLS and BLS Classes required by the Defendant. A copy of the Plaintiff's motion to certify class dated Jan. 19, 2020 is available from PacerMonitor.com at http://bit.ly/3sULtsjat no extra charge.[CC] The Plaintiff is represented by: Christopher J. Saba, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: csaba@wfclaw.com tsoriano@wfclaw.com WALMART INC: Faces Stanton Securities Suit Over Stock Price Drop ---------------------------------------------------------------- RICHARD STANTON, Individually and on behalf of all others similarly situated v. WALMART INC., C. DOUGLAS MCMILLON, and M. BRETT BIGGS, Case No. 1:21-cv-00055-UNA (D. Del., Jan. 20, 2021) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded Walmart securities between March 30, 2016 and December 22, 2020, seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. On March 30, 2016, the Company filed its annual report on Form 10-K for the year ended January 31, 2016 with the Securities and Exchange Commission (the "2015 10-K"). The 2015 10-K was signed by the Defendants McMillon and Biggs. The 2015 10-K contained signed certifications pursuant to the Sarbanes-Oxley Act of 2002 by the Defendants McMillon and Biggs attesting to the accuracy of financial reporting, the disclosure of any material changes to the Company's internal controls over financial reporting, and the disclosure of all fraud. The Company reported that 11% of its total merchandise sales from Walmart U.S. were from the "Health and Wellness" category, which included revenues from its pharmacy business. On December 22, 2020, while the market was open, the Department of Justice announced in a press release that it has filed a lawsuit against Walmart for alleged violations of the Controlled Substances Act and the Company's role in the opioid epidemic. On this news, Walmart's stock price fell $2.75 per share, or 1.88%, over the next two trading days to close at $144.20 per share on December 23, 2020, the suit says. The Plaintiff contends that as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, he and other Class members have suffered significant losses and damages. The Plaintiff purchased Walmart securities during the Class Period and was economically damaged thereby. Walmart engages in the retail and wholesale operations in various formats worldwide. The Company operates in three segments: Walmart U.S., Walmart International, and Sam's Club. The Individual Defendants are officers of the company.[BN] The Plaintiff is represented by: Laurence Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com - and - Michael J. Farnan, Esq. FARNAN LLP 919 N. Market St., 12th Floor Wilmington, DE 19801 Telephone: (302) 777-0300 Facsimile: (302) 777-0301 E-mail: bfarnan@farnanlaw.com mfarnan@farnanlaw.com WELLS FARGO: Neglects Request of Account Information, Mendoza Says ------------------------------------------------------------------ PEDRO MENDOZA, Individually and On Behalf of All Others Similarly Situated v. WELLS FARGO BANK, N.A., Case No. 5:21-cv-00098 (C.D. Cal., Jan. 20, 2021) alleges that Wells Fargo has neglected to fulfill its duty to provide information available to it in the regular course of business to the Plaintiff upon receipt of Plaintiff's Qualified Written Request (QWR) and Request for Information (RFI). The Plaintiff contends that Wells Fargo has demonstrated a "pattern or practice" of failing to adequately respond to borrowers' requests for account information, which makes Wells Fargo liable for statutory damages in an amount up to $2,000 for each failure to adequately respond. Notwithstanding this glaring failure to abide by its statutory duty, and despite Plaintiff's way to inform Wells Fargo of its failure, Wells Fargo continues to incorrectly characterize his and other borrowers' reasonable requests for account information as "privileged, confidential and/or proprietary information of Wells Fargo, the suit says. Under RESPA and Regulation X, loan servicers, including Wells Fargo, must provide borrowers with specific account information available to them in the regular course of business upon receiving a QWR or a RFI from the borrower. The Plaintiff seeks injunctive relief statutory damages, and actual damages resulting from Defendant's misconduct. Wells Fargo is the loan servicer for the Plaintiff's mortgage.[BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. Alan Gudino, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com alan@kazlg.com WEST VIRGINIA: Richards Directed to File Class Cert. Bid by Feb. 15 ------------------------------------------------------------------- In the class action lawsuit captioned as KENNETH RICHARDS, v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al., Case No. 2:19-cv-00397 (S.D. W.Va.), the Hon. Judge Thomas E. Johnston entered an order 1. scheduling a settlement conference for February 8, 2021, at 9:30 a.m.; -- Individuals with full authority to settle the case for each party shall be present in person; 2. extending the deadline for filing class certification briefing as follows: -- the Plaintiffs shall file a motion for class certification no later than February 15, 2021. -- Responses are due no later than March 15, 2021, and replies are due no later than April 1, 2021; and 3. directing the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The West Virginia Department of Health and Human Resources is a government agency of the U.S. state of West Virginia. The department administers the state's health, social, and welfare programs. A copy of the Court's order dated Jan. 19, 2020 is available from PacerMonitor.com at https://bit.ly/367oj7X at no extra charge.[CC] YOUNG LIVING: Oil Products Have No Therapeutic Benefits, Suit Says ------------------------------------------------------------------ LORI MACNAUGHTON, individually and on behalf of all others similarly situated v. YOUNG LIVING ESSENTIAL OILS, LC, Case No. 5:21-cv-00071-BKS-ML (N.D.N.Y. Jan. 20, 2021) is a consumer class action brought individually by Plaintiff and on behalf of all persons who purchased essential oil products labeled as "therapeutic" from the Defendant. Contrary to the express representations made on its label, the Products, which claim to be "therapeutic" and provide a number of health-related benefits, provide no healthy or medicinal benefit whatsoever, the Plaintiff contends. As a result of the Defendant's unlawful and deceptive conduct, the Plaintiff and Members of the Classes have been, and continue to be, harmed by purchasing a product under false pretenses and paying more for it than they otherwise would have, if they would have purchased it at all, the Plaintiff adds. The Plaintiff seeks damages, injunctive and declaratory relief, interest, costs, and reasonable attorneys' fees. The Plaintiff is a citizen of the State of New York residing in the city of Syracuse. She purchased the Products for her own use during the four years preceding the filing of this Complaint and most recently on February 2020. Young Living is a multi-level marketing company based in Lehi, Utah. Founded by Donald Gary Young in 1993, it sells essential oils and other related products.[BN] The Plaintiff is represented by: Mason A. Barney, Esq. Aaron Siri, Esq. SIRI & GLIMSTAD LLP 200 Park Avenue, Seventeenth Floor New York, NY 10166 Telephone: (212) 532-1091 E-mail: aaron@sirillp.com mbarney@sirillp.com - and - Gary M. Klinger, Esq. Gary E. Mason, Esq. MASON LIETZ & KLINGER LLP 227 W. Monroe Street, Ste. 2100 Chicago, IL 60606 Telephone: (202) 640-1160 Facsimile: (202) 429-2294 E-mail: gklinger@masonllp.com gmason@masonllp.com ZILLOW GROUP: Stipulation on Dissemination of Notices Approved -------------------------------------------------------------- In the lawsuit styled IN RE ZILLOW GROUP, INC. SECURITIES LITIGATION, Case No. C17-1387-JCC (W.D. Wash.), the U.S. District Court for the Western District of Washington signed the parties' stipulation and proposed order for the dissemination of notices. By an Order dated October 28, 2020, the Court certified the action to proceed as a class action on behalf of a Class consisting of: All persons who purchased or otherwise acquired Zillow securities between November 17, 2014 and August 8, 2017, both dates inclusive, excluding Defendants herein, the officers and directors of the Company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a controlling interest. The Parties agree to the use of the form of the Notice of Pendency of Class Action and the Summary Notice of Pendency of Class Action. The proposed form and content of the Notices meet the requirements of Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure. The Plaintiffs select Strategic Claims Services as the Notice Administrator. Defendant Zillow will use reasonable efforts to, within 21 calendar days after entry of the accompanying Order for Approval of Notice and Summary Notice and at no cost to the Class, have its transfer agent provide or cause to be provided to the Notice Administrator security holder records (consisting of the security holder names, addresses, and email addresses to the extent the transfer agent has access to them) in electronic form, identifying all persons or entities who purchased Zillow securities during the period from November 17, 2014, through August 8, 2017, both dates inclusive. The Class Counsel will be responsible for all other costs associated with disseminating the Notices. The parties also agree that not later than 30 calendar days from entry of the Order, the Notice Administrator will cause the Summary Notice to be either (a) emailed to the Class Members for whom the Notice Administrator is able to obtain email addresses or (b) mailed, by first-class mail, postage prepaid, to the Class Members at the addresses set forth in the records provided by Zillow's transfer agent, if no email address can be obtained, or who may otherwise be identified with reasonable effort. The Notice Administrator will use reasonable efforts to give notice to nominee purchasers such as brokerage firms and other persons and entities who may have, for the beneficial interest of any person or entity other than itself or themselves, purchased Zillow securities during the period from November 17, 2014, through August 8, 2017, both dates inclusive. Contemporaneously with the mailing of the Summary Notice, the Notice Administrator will cause a copy of the Notice to be posted on the Notice Administrator's website, www.strategicclaims.net/Zillow, from which the Class Members may download copies of the Notice. The Notice Administrator will cause a copy of the Summary Notice to be published once in Investor's Business Daily and issued over GlobeNewswire within 10 calendar days of the mailing of the Summary Notice. The Class Members will be bound by all determinations and judgments in the Action, whether favorable or unfavorable, unless such persons and entities request exclusion from the Class in a timely and proper manner, as hereinafter provided. Any Class Member, who retains separate counsel in connection with the matter must enter an appearance, as set out in the Notice, no later than 75 calendar days after the Notice Date. Within 80 calendar days after the Notice Date, the Class Counsel will forward to counsel for the Defendants any notices of appearance that were mailed to the Class Counsel but not filed with the Court. The Class Counsel will file with the Court proof of mailing of the Summary Notice, proof of publication of the Summary Notice, and proof of posting of the Notice on the Notice Administrator's website within 10 business days following Summary Notice publication date. A full-text copy of the Court's Order dated Jan. 14, 2021, is available at https://tinyurl.com/yyl5sm9e from Leagle.com. Colin George -- cgeorge@ardentlaw.com -- ARDENT LAW GROUP, PLLC; Laurence M. Rosen -- lrosen@rosenlegal.com -- Jonathan Stern -- jstern@rosenlegal.com -- The Rosen Law Firm, P.A., Counsel for Lead Plaintiffs. Sean C. Knowles -- sknowles@perkinscoie.com -- PLLC PERKINS COIE LLP, Matthew D. Ingber -- mingber@mayerbrown.com -- Joseph De Simone -- jdesimone@mayerbrown.com -- MAYER BROWN LLP. [*] Clayton Utz, ICP Launch Insurance Suit Over COVID-19 Losses --------------------------------------------------------------- Tony Zhang, writing for LawyersWeekly, reports that investor Claim Partner and Clayton Utz are starting a collective action on behalf of thousands of business interruption (BI) insurance policyholders against insurers that have knocked back claims for losses following forced COVID-related closures. The move is aimed to provide a potential lifeline for tens of thousands of businesses crippled by financial losses incurred during COVID-19 lockdowns, including restaurants, bars, gyms, cinemas, retailers and tourism operators. It follows a NSW Court of Appeal ruling last November in a test case that insurers could not rely on standard "quarantinable disease" exclusions when knocking back claims for losses caused by COVID-19 under business interruption (BI) policies. Insurers had incorrectly asserted that the exclusion was a "pandemic exclusion" and the Court found that it did not apply to COVID-19. Lawyers had previously told Lawyers Weekly that the insurance industry could be subject to hundreds of millions in COVID-linked payouts after suffering the loss of the test case that was designed to solidify their position on rejecting claims. ICP is asking all businesses that suffered pandemic-related financial losses to submit their BI insurance policies for review before registering interest in the joint response to insurers. Clayton Utz will be engaged to advise individual businesses on whether they have a basis for pressing their BI claim and should consider joining in the collective action. The firm had previously also acted for the successful policyholders in the recent test case. "COVID-19 cut a swathe through the livelihoods of thousands of business owners who, through no fault of their own, were forced to close for extended periods. If they have valid claims for business-interruption losses, then insurers need to step up, not deny and delay payment," ICP managing director, John Walker, said. "Our message to business owners is do not take your insurer at its word when it says you're not covered for BI losses - check your policies closely and get independent advice." More than 100 small businesses had contacted ICP and Mr Walker said he expects this to reach "in the tens of thousands", adding failure to pay could have wider implications for the economy. ICP also said that the action is bolstered by a decision handed down recently by Britain's highest court, the Supreme Court, that upheld earlier UK court rulings affirming the ability of UK businesses to make BI claims related to COVID-19 closures. UK legal precedents are relevant to Australian legal proceedings. "ICP is offering an efficient way for businesses to have policy wordings reviewed by insurance law experts at Clayton Utz, at no charge to the business. If their BI claim looks valid, they then have the option of joining our collective process to have claims resolved," Mr Walker said. "We intend to engage constructively with insurers to see if claims can be resolved without the need for litigation but if that is necessary, Clayton Utz will act for the lead applicants in those proceedings." Uncertainty surrounding the validity of pandemic-related BI claims centred on exclusion clauses set out in many standard insurance policies that excluded losses arising from "quarantinable disease" as defined by the Commonwealth Quarantine Act. However, when this act was repealed and when its replacement Biosecurity Act 2015 commenced, the "quarantinable disease" wording in those standard policies was not updated. In the test case brought by the insurance industry last year to resolve the issue, the insured businesses, represented by Clayton Utz, argued successfully that the reference to "quarantinable disease" under the Quarantine Act in policy wording does not apply to COVID, as it is not a quarantinable disease. The NSW Court of Appeal ruled unanimously in favour of insured businesses. ICP said that a range of other BI policy wordings that were not the subject of the recent NSW test case could also provide openings for businesses to make a valid claim for pandemic-related losses. Mr Walker said the courts have spoken decisively on this issue and insurers need to respect that. "For many businesses, the payout of their BI insurance claim is all that stands between ongoing viability and collapse," he said. "Insurers have an important role to play in Australia's recovery from Covid and the public expects them to meet, and not shirk, their legal obligations. They should be actively assessing claims and communicating with policyholders, even while their application to appeal to the High Court is considered." [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 ***