/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210216.mbx C L A S S A C T I O N R E P O R T E R Tuesday, February 16, 2021, Vol. 23, No. 28 Headlines 180 3RD AVENUE: Castaneda Labor Suit Seeks Unpaid Minimum, OT Wages 3M CO: 1st Bellwether Trial in Defective Earplug Suit Set for March 3M CO: 331 Plaintiffs Added in Billings Class Suit 3M CO: 943 Class Suits Filed Over Aqueous Film Forming Foam 3M CO: Bair Hugger Suit in Ontario Underway 3M CO: Bid to Dismiss Amended Delaware Class Action Pending 3M COMPANY: Dean Suit Claims PFAS Exposure From AFFF Products 3M COMPANY: Dumoulin Sues Over Exposure to Toxic AFFF Products ABC PHONES: Baggott FLSA Collective Action Gets Class Certification ABIOMED INC: Bid to Nix Local 705 Teamsters' Class Suit Pending ADVANCED HOUSE: Peterson Sues Over Unpaid Wages for House Managers ADVANTAGE CHRYSLER: Toney FDCPA Suit Seeks Class Certification ALLERGAN USA: Field Sues Over Breast Implants' Adverse Events ALLSTATE FIRE: Court Dismisses 2nd Amended Complaint in Cody Suit ALLY FINANCIAL: Faces Clapp Suit Over Stock Market Manipulation AMAZON.COM INC: Averts Employees' Class Action Over BLM Retaliation AMAZON.COM INC: Class Action Against Firm, Whole Foods Dismissed AMERICAN MEADOWS: Williams Files ADA Suit in S.D. New York AMERICAN TOMBOY: Burbon Files ADA Suit in E.D. New York APPCO GROUP: Federal Court Approves Class Action Settlement APPLE INC: Seeks Ct. OK on Joint Stipulation Regarding Class Period ASTRAZENECA PLC: Faruqi & Faruqi Reminds of March 29 Deadline ATHENA ALLERGY: Paguada Files ADA Suit in S.D. New York BALBOA THRIFT: Bid to Compel Arbitration & Dismiss Camarillo OK'd BANK OF AMERICA: EDD Cardholders Sues Over Unemployment Insurance BANK OF AMERICA: Faces Class Action Over EDD Debit Card Hacking BANK OF AMERICA: Fails to Secure EDD Account Info, Cajas Alleges BANK OF AMERICA: Jobless Workers Are Losing Benefits to Scammers BAYER CROPSCIENCE: Lex Sues Over Monopoly of Crop Inputs Market BEECH-NUT NUTRITION: Peek Files Product Liability Suit in New York BEECH-NUT NUTRITION: Thomas Sues Over Mislabeled Baby Food Products BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing BIT DIGITAL: Hagens Berman Reminds Investors of March 22 Deadline BIT DIGITAL: Klein Law Reminds Investors of March 22 Deadline BLAND LANDSCAPING: Roldan FLSA Suit Seeks to Certify Foremen Class BLOOMSCAPE INC: Williams Files ADA Suit in S.D. New York BONOBOS INC: Faces Kemp $5M Suit in Southern District of New York BP PLC: Stikeman Elliott Attorney Discusses Class Action Ruling CAPTIVA MVP: 11th Cir. Affirms Dismissal of Tsao Data Breach Suit CARDINAL HEALTH: Bid to Junk Generic Pharmaceutical Suit Pending CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending CBSC INC: Deadline for Class Status Bid Filing Extended to April 2 CENTER FOR ADDICTIVE PROBLEMS: Chambers Seeks OT Pay Under FLSA CERTAIN UNDERWRITERS: Denial of Class Certification Bid Sought CHOBANI LLC: Yogurt Doesn't Contain Madagascar Vanilla, Suit Says CHOWBUS INC: Flores Suit Seeks Minimum & OT Wages Under FLSA, NYLL CIRCLE K STORES: Pettersen CFAL Suit Removed to S.D. California CLOVER HEALTH: Faces Bond Suit Over 12.3% Drop in Share Price CLOVER HEALTH: Rosen Law Firm Reminds Investors of April 6 Deadline CLOVER HEALTH: Schall Law Firm Reminds of April 6 Deadline CONTINENTAL INTERMODAL: Hubbard Suit Seeks OT Wages Under NMMWA CORAL SPRINGS: Snarski TCPA Suit Removed to S.D. Florida COSTCO WHOLESALE: Cohen Suit Removed From State Court to C.D. Cal. CULLEN/FROST: Class Suits Over PPP Loan Agent Fees Dismissed D&W FINE: Illegally Collects Employees' Fingerprints, Smith Alleges DALE ELECTRONICS: Quezada Files ADA Suit in S.D. New York DAUGHERTY SYSTEMS: Seeks to Decertify Conditional Collective Class DAVANTAGE GROUP: Settles Motor Warranty Class Action for $9.5MM DAVITA INC: Kyros Law Files Legal Claims on Behalf of Investors DECISION DIAGNOSTICS: Faruqi & Faruqi Reminds of March 16 Deadline DIRECTV LLC: Creve Coeur Suit Removed from Circuit Ct. to E.D. Mo. DISCOUNT DANCE: Blind Users Can't Access Website, Sanchez Claims DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending DXC TECHNOLOGY: Hearing on Bid for Initial Cert. Set for April 15 DXC TECHNOLOGY: Hearing on Bid to Junk Class Suit Set for April 23 DYCK O'NEAL: Feb. 15 Extension to Class Status Bid Response Sought EAST BATON ROUGE, LA: Bids to Dismiss Belton v. Gautreaux Granted ELAP SERVICES: Hospital Bid to Appoint Interim Class Counsel Tossed ENDO INT'L: Court to Pick Bucks County as Lead in Pelletier Suit EXECUTIVE CAR RENTAL: Jardine Seeks Unpaid Overtime Under FLSA EXPRESS SCRIPTS: Perez Suit to File New Class Status Bid by Feb. 19 FADA GROUP: New Jersey Court Dismisses Lin Suit Without Prejudice FEDEX CORP: Wins Bid to Dismiss Consolidated Securities Suit FLO HEALTH: Faces Frasco Class Suit Over Data Disclosure Practices FOGO DE CHAO: Garcia-Alvarez Labor Suit Removed to E.D. Texas FORD MOTOR: Still Faces Class Action Over Fuel Economy Testing FORTUNE MEDIA: Blind Users Can't Access Website, Sanchez Claims FRANKLIN COLLECTION: Wormley Files TCPA Suit in N.D. Texas FROM NOTHING: Jaquez Files ADA Suit in S.D. New York G95 INC: Faces Tatum-Rios ADA Suit in Southern District of New York GENERAL ELECTRIC: 2nd Cir. Affirms Dismissal of Varga ERISA Suit GENERAL MOTORS: Goldstein's Claims in 2nd Amended Suit Narrowed GENERAL MOTORS: Walker Files Suit in E.D. Michigan GODADDY INC: Pinto Appeals Ruling in Drazen TCPA Suit to 11th Cir. GOOGLE LLC: Mikula Web Sues Over Monopoly of Display Ad Stack GOOGLE LLC: Paige Antitrust Suit Transferred to N.D. California GT JAPAN: Cavallero Sues Over Mislabeled Vanilla Ice Cream HACHETTE BOOK: Five Defendants Named in E-Book Price-Fixing Suit HEALTH INSURANCE: Appointment of LKLSG, TDF as Class Counsel Sought HIGHMARK BCBSD: Pennsylvania Court Denies Walker's Bid to Remand HOMEGOODS INC: Blumenthal Nordrehaug Files Labor Class Action HYDROBUILDER LLC: Williams Files ADA Suit in S.D. New York IRHYTHM TECHNOLOGIES: Thornton Law Reminds of April 2 Deadline IRHYTHM TECHNOLOGIES: Vincent Wong Reminds of April 2 Deadline JERRY ERWIN: Miller BIPA Suit Removed From Circuit Ct. to C.D. Ill. JOHNSON & JOHNSON: Briskin Sues Over Baby Powder's Side Effects JONES SEPTIC: Settlement Agreement Gets Approval in Rumph Suit KAWADA COMPANY: Garcia Seeks Online Hotel Booking's Access Features KEURIG DR PEPPER: Faces Class Suit Over Deceptive Vanilla Flavoring KEYPOINT GOVERNMENT: Loses Bid to Compel Arbitration in Brayman KINGSFORD PRODUCTS: Briquettes Aren't 100% Natural, Lee Claims KORE ESSENTIALS: Paguada Files ADA Suit in S.D. New York KOTOBUKI RESTAURANT: Fong Files FLSA Suit in E.D. New York KRAFT TOOL: Burbon Files ADA Suit in E.D. New York LANE BRYANT: Young Files ADA Suit in S.D. California LAS VEGAS SANDS: Daniels Family 2001 Revocable Trust Suit Underway LIONS GATE: Continues to Seek Added Reimbursement from Insurers LLOYD'S, LONDON: 632 Metacom Suit Moved From N.Y. to Rhode Island LOADED BOARDS: Quezada Files ADA Suit in S.D. New York LOGISTICARE SOLUTIONS: Feb. 18 Response to Class Status Bid Sought MANHATTAN LUXURY: Class Status Bid Nixed w/o Prejudice MARKET VIEW: AWL Borrowers Sue Over Payday Loans in E.D. Pa. MCKINSEY & CO: Pembroke Pines Sues For Misbranding OxyContin Drugs MEDCIPHERS LLC: Underpays Personal Support Aides, Dawson Suit Says MEDSTAR HEALTH: District of Maryland Refuses to Toss ERISA Suit MENORAH PARK: Class of Nurses Conditionally Certified in Thompson MERCEDES-BENZ USA: Faces Class Action Over Radiator Guards MERCEDES-BENZ USA: Faces Hadjian Suit in Northern Dist. of Georgia MERCEDES-BENZ USA: Zaroukian Sues Over Defective Panoramic Sunroofs MICHIGAN: Court Dismisses Most Claims in Richards v. Whitmer MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit MIDLAND CREDIT: Faces Silverman FDCPA Suit in S.D. New York MIDTOWN INVESTMENTS: Website Lacks Accessibility Info, Garcia Says MILLER COUNTY, AR: Grissom's Bid to Certify Inmates Class Denied MODERN ROOFING: Faces Restrepo Suit Over Unpaid Wages, Retaliation MONROE COUNTY, NY: Restaurants Allowed to Break COVID Curfew MPC HOLDINGS: Class Certification Bid Stricken in Morris FLSA Suit MPC HOLDINGS: Morris Seeks to Certify Class of Day Rate Inspectors MUIR LONGBOARD: Quezada Files ADA Suit in S.D. New York NATIONAL FOOTBALL: Gill Sues Over Game Pass Livestream Subscription NECA/IBEW FAMILY: Court Modifies Class Certification in D.T. Suit NETFLIX INC: Lancaster Joins Class Action Over Streaming Services NEW YORK CITY: Class Action Settlement Wins Preliminary Approval NICK'S MANAGEMENT: Predmore Suit Stayed; Bid to Arbitrate Granted NICOLAS THOMAS SCOTT: Scott Buying Kit Carson County Land for $76K NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit NORTH DAKOTA: ACLU Files Brief in Support of Road Closure Suit NORTONLIFELOCK INC: Trial in California Class Suit Set for June 14 NYCDOE: M.G. Suit Seeks to Certify Class of Students with IEPs OHIO: Labor Group Calls for End to Farm Contractor Abuses OLIVIAN HOSPITALITY: Faces Garcia ADA Suit Over Reservation System OTIS WORLDWIDE: Darnis Putative Class Suit Underway OUTOKUMPU STAINLESS: Hornady's Bid for Equitable Tolling Denied PAPA JOHN'S: 2nd Amended OLERS Complaint Dismissed With Prejudice PASCHALL TRUCK: Extension of Rule 23 Motion Filing Deadlines Sought PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway PAYPAL HOLDINGS: Dismissal in TIO Operation Related Suit Affirmed PELOTON INTERACTIVE: Faces Loaiza ADA Suit in C.D. California PENUMBRA INC: Kessler Topaz Reminds of March 16 Deadline PHOENIX, AZ: Police "Challenge Coins" Depict Violence From Protest PHYSICIAN COMPASSIONATE: Teblum Gets Prelim. OK of Class Settlement PINTEREST INC: Facing Putative Securities Class Suit in California PLANT DELIGHTS: Blind Users Can't Access Website, Williams Alleges PMA INSURANCE: Amended Sims Complaint Dismissed Without Prejudice POLAND: 200 Hospitality Sector Companies to Join Class Action Suit PORSCHE CARS: Faces Bowen Suit in Northern District of Georgia POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing PRECISION 2000: Conditional Collective Status Sought in FLSA Suit PRIMARY COLOR: Website Not Accessible to Blind Users, Loaiza Says PTC INC: 401(K) Plan Related Suit in Massachusetts Underway QUANTUM HEALTH: Court Certifies Utilization Review Employee Class QUEEN'S TREASURE: Burbon Files ADA Suit in E.D. New York RIEBE'S AUTO: Faces Vega Employment Suit in California State Court ROBERTA PLACE: Fails to Protect Residents Against COVID, Suit Says ROBERTA PLACE: To Fight Class Action Over COVID-19 Outbreak ROBINHOOD FINANCIAL: Faces Suit Over Improper Trading Practices ROBINHOOD FINANCIAL: GameStop Frenzy May Worsen Social Inflation ROBINHOOD FINANCIAL: Manipulates Stock Market, Petrosyan Suit Says ROBINHOOD FINANCIAL: Manipulates Trading Platform, Muncy Suit Says ROBINHOOD FINANCIAL: Mehta Consumer Suit Goes to N.D. California ROBINHOOD FINANCIAL: Senate to Hold Hearing Amid Gamestop Lawsuit ROBINHOOD FINANCIAL: Six Hedge Funds Included in Class Action Suit RUSTIC DIME: Ruiz Sues Over Unpaid Wages, Retaliation & Harassment SAG-AFTRA: Suspends Annual Dues Hike Amid Health Plan Class Action SAINT LUKE'S HEALTH: March 11 Response to Class Cert. Bid Sought SANTA MONICA: Alequin Files Suit in Illinois Over BIPA Violations SELIGMAN WESTERN: Lowry Seeks to Recover Managers' Unpaid Wages SETTON PISTACHIO: Magistrate Endorses Denial of Ali's Remand Bid SIFCO INDUSTRIES: April 16 Final Settlement Approval Hearing Set SM ENERGY: Chieftain Royalty Bid for Class Certification Tossed SOLARWINDS CORP: Jakubowitz Law Reminds of March 5 Deadline SONOMA PLANT: Williams Files ADA Suit in S.D. New York SOUTHWEST AIRLINES: Court Certifies Class in Huntsman USERRA Suit SPAIN: Hospitality Sector Mulls Class Action Over Business Closures SPARTAN RACE: Settlement Class Gets Conditional Certification SPX CORP: Court Grants Bid for Summary Judgment in Brass Class Suit SPX CORPORATION: Brass Amended Complaint Nixed w/ Prejudice STELVIO TRANSPORT: Faces Johnson Wage-and-Hour Suit in California SUPER MICRO: Bid to Dismiss NY Trades Council & Hotel Suit Pending SYMMETRY MANAGEMENT: Class Status Bid Partly Granted in Dunbar Suit TIERNO CARE: Castro Seeks Unpaid Wages, Back-Pay Under FLSA, DCMWA TOPNET INC: Jaquez Files ADA Suit in S.D. New York TRACFONE WIRELESS: Jones' Claims Tossed; May Amend Suit by March 5 TRANSAM TRUCKING: Roberts Claims Unpaid Minimum Wages for Drivers TRITERRAS INC: The Klein Law Reminds of February 19 Deadline UBER BV: McCarthy Tetrault Attorneys Discuss Class Action Ruling UGI CORP: Agreement Reached with Indirect Purchaser Plaintiffs ULTRA SHINE: Approval of Collective Action Notice Sought ULTRALIFE CORP: Gains $1,593 in Batteries Antitrust Suit Settlement UNION PACIFIC: Brasier Suit Alleges Disability Discrimination UNION PACIFIC: Fitness-for-Duty Program Violates ADA, DeFries Says UNITED AIRLINES: Seventh Cir. Flips Dismissal of White USERRA Suit UNITED STATES: Faces Racial Discrimination Class Action Lawsuit UNIVERSITY OF MICHIGAN: Ex-Pilots Join Sexual Misconduct Case UNLIMITED CARRIER: Roberson Suit Seeks Unpaid Wages for Drivers UPS STORE: Shavers Consumer Class Suit Removed to N.D. Illinois USA TECHNOLOGIES: Purchasers Class Action Suit in PA Concluded USA TECHNOLOGIES: Shareholder Suit in Chester County Court Stayed VMS DATA: Rojas Sues Over Unpaid Overtime for Sales Associates WALGREENS BOOTS: Court Tosses 1st Amended Complaint in Smith Suit WASHINGTON BULB: Williams Files ADA Suit in S.D. New York WEST TOWN: Somervlele Suit Gets Class, Subclasses Certification WESTCHESTER PARKWAY: Fails to Pay Nurses' Proper Wages, Edgar Says WHOLE FOODS: Claims in Campbell First Amended Complaint Narrowed WILMINGTON SAVINGS: Antonio Sues Over Car Repossession Practices WILMINGTON SAVINGS: Marvastian Sues Over Debt Collection Practices WILSHIRE ROYALE: Garcia Sues Over Hotel Booking's Violation of ADA WORLD WRESTLING: Awaits Preliminary Approval of Settlement WORLD WRESTLING: Continues to Defend Wrestlers' Class Suits YAMAHA MOTOR: Cal. App. Affirms Summary Judgment Against Baker [*] FCA Issues Statement on Recent Gamestop Share Trading Issues ********* 180 3RD AVENUE: Castaneda Labor Suit Seeks Unpaid Minimum, OT Wages ------------------------------------------------------------------- JAIME CASTANEDA and LEONEL CASTANEDA, individually and on behalf of others similarly situated v. 180 3RD AVENUE LLC. (D/B/A WESTSIDE MARKET), 74-84 WESTSIDE MARKET LLC (d/b/a WESTSIDE MARKET), GEORGE ZOITAS, GUILLERMO DOE, and ALEX DOE, Case No. 1:21-cv-00961 (S.D.N.Y., Feb. 2, 2021) seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. According to the complaint, the Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiffs the required "spread of hours" pay for any day in which they had to work over 10 hours a day, says the suit. The Plaintiffs were employed as produce workers at the Defendants' supermarket. The Defendants own, operate, or control a chain of supermarkets, located at 180 Third Avenue, New York, New York under the name "Westside Market". The individual Defendants George Zoitas, Guillermo Doe, and Alex Doe, serve or served as owners, managers, principals, or agents of the Defendant Corporations.[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com 3M CO: 1st Bellwether Trial in Defective Earplug Suit Set for March ------------------------------------------------------------------- 3M Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the first bellwether trial in Defective Earplugs Suitis scheduled to begin in March 2021. Aearo Technologies sold Dual-Ended Combat Arms – Version 2 earplugs starting in about 2003. 3M acquired Aearo Technologies in 2008 and sold these earplugs from 2008 through 2015, when the product was discontinued. In December 2018, a military veteran filed an individual lawsuit against 3M in the San Bernardino Superior Court in California alleging that he sustained personal injuries while serving in the military caused by 3M's Dual-Ended Combat Arms earplugs – Version 2. The plaintiff asserts claims of product liability and fraudulent misrepresentation and concealment. The plaintiff seeks various damages, including medical and related expenses, loss of income, and punitive damages. As of December 31, 2020, the Company is a named defendant in approximately 3,130 lawsuits (including 14 putative class actions) in various state and federal courts that purport to represent approximately 12,400 individual claimants making similar allegations. In April 2019, the U.S. Judicial Panel on Multidistrict Litigation granted motions to transfer and consolidate all cases pending in federal courts to the U.S. District Court for the Northern District of Florida to be managed in a multi-district litigation (MDL) proceeding to centralize pre-trial proceedings. Discovery is underway. The plaintiffs and 3M filed preliminary summary judgment motions on the government contractor defense. In July 2020, based on the then current record, the court granted the plaintiffs' summary judgment motion and denied the defendants' summary judgment motion, ruling that plaintiffs’ claims are not barred by the government contractor defense. The court denied the Company's request to immediately certify the summary judgment ruling for appeal to the U.S. Court of Appeals for the Eleventh Circuit. In December 2020, the MDL court granted the plaintiffs' motion to consolidate three plaintiffs for the first bellwether trial scheduled to begin in March 2021. Individual trials for the next two bellwether plaintiffs are scheduled to proceed in May and June of 2021. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: 331 Plaintiffs Added in Billings Class Suit -------------------------------------------------- 3M Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that 331 additional plaintiffs have been added in the "Billings" putative class action suit. In August 2016, a group of over 200 plaintiffs filed a putative class action against West Morgan-East Lawrence Water and Sewer Authority (Water Authority), 3M, Dyneon, Daikin, BFI Waste Systems of Alabama (BFI), and the City of Decatur in state court in Lawrence County, Alabama. Plaintiffs are residents of Lawrence, Morgan and other counties who are or have been customers of the Water Authority. They contend defendants have released PFAS that contaminate the Tennessee River and, in turn, their drinking water, causing damage to their health and properties. In January 2017, the court in the St. John case, stayed this litigation pending resolution of the St. John case. Plaintiffs in the Billings case amended their complaint in November 2020 and added 557 additional plaintiffs, and in January 2021 amended again to add 331 additional plaintiffs. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: 943 Class Suits Filed Over Aqueous Film Forming Foam ----------------------------------------------------------- 3M Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that as of December 31, 2020, there were 943 cases in the MDL, 933 of which name 3M as a defendant, related to Aqueous Film Forming Foam (AFFF). 3M manufactured and marketed AFFF for use in firefighting at airports and military bases from approximately 1963 to 2002. As of December 31, 2020, 943 lawsuits (including 26 putative class actions) alleging injuries by AFFF use have been filed against 3M (along with other defendants) in various state and federal courts. As previously noted, some of these cases have been brought by state or territory attorneys general. In most of these cases, plaintiffs typically allege that certain PFAS used in AFFF contaminated the soil and groundwater where AFFF was used and seek damages for alleged injuries such as loss of use and enjoyment of properties, diminished property values, investigation costs, remediation costs, personal injury and/or funds for medical monitoring. 414 cases filed since October 2019 have been brought by current or former firefighters who claim to have suffered personal injury as a result of exposure to AFFF while using the product. The United States, the U.S. Department of Defense and several companies have been sued along with 3M, including but not limited to Ansul Co. (acquired by Tyco, Inc.), Angus Fire, Buckeye Fire Protection Co., Chemguard, Chemours, DuPont, National Foam, Inc., and United Technologies Corp. In December 2018, the U.S. Judicial Panel on Multidistrict Litigation (JPML) granted motions to transfer and consolidate all AFFF cases pending in federal courts to the U.S. District Court for the District of South Carolina to be managed in an MDL proceeding to centralize pre-trial proceedings. Additional AFFF cases continue to be transferred into the MDL as they are filed or removed to federal court. As of December 31, 2020, there were 947 cases in the MDL, 943 of which name 3M as a defendant. The parties in the MDL are currently in the process of conducting discovery. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Bair Hugger Suit in Ontario Underway ------------------------------------------- 3M Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the company continues to defend itself against a putative class action related to the company's Bair Hugger(TM) patient warming system, pending before the Ontario Superior Court of Justice. In June 2016, the Company was served with a putative class action filed in the Ontario Superior Court of Justice for all Canadian residents who underwent various joint arthroplasty, cardiovascular, and other surgeries and later developed surgical site infections that the representative plaintiff claims was due to the use of the Bair Hugger(TM) patient warming system. The representative plaintiff seeks relief (including punitive damages) under Canadian law based on theories similar to those asserted in the MDL. No liability has been recorded for the Bair Hugger(TM) litigation because the Company believes that any such liability is not probable and estimable at this time. No further updates were provided in the Company's SEC report. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Bid to Dismiss Amended Delaware Class Action Pending ----------------------------------------------------------- 3M Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the motion seeking dismissal of the amended class action complaint in Delaware is pending. In Delaware, 3M, together with several co-defendants, is defending one putative class action brought by individuals alleging Perfluorooctanoic acid (PFAS) contamination of their water supply resulting from the operations of local metal plating facilities. Plaintiffs allege that 3M supplied PFAS to the metal plating facilities. DuPont, Chemours, and the metal platers have also been named as defendants. This case has been removed from state court to federal court, and plaintiffs have withdrawn its motion to remand to state court and filed an amended complaint. 3M has filed a motion to dismiss the amended complaint. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M COMPANY: Dean Suit Claims PFAS Exposure From AFFF Products ------------------------------------------------------------- DAVID DEAN, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG 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., Defendants, Case No. 2:21-cv-00400-RMG (D.S.C., February 8, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The case arises from a personal injury sustained by the Plaintiff as a result of his exposure to the Defendants' aqueous film forming foam (AFFF) products containing synthetic, toxic per- and polyfluoroalkyl substances collectively known as PFAS. The Defendants failed to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of their PFAS-containing AFFF products and also failed to warn public entities and firefighter trainees, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the products would pose a danger to human health. Due to inadequate warning, the Plaintiff was exposed to toxic chemicals and developed serious medical conditions and complications, the suit says. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [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 3M COMPANY: Dumoulin Sues Over Exposure to Toxic AFFF Products -------------------------------------------------------------- VERNON DUMOULIN, individually and on behalf of all others similarly situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company; ACG 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., Defendants, Case No. 2:21-cv-00409-RMG (D.S.C., February 9, 2021) is a class action against the Defendants for negligence, battery, inadequate warning, design defect, strict liability, fraudulent concealment, breach of express and implied warranties, and wantonness. The suit arises from the Defendants' failure to use reasonable and appropriate care in the design, manufacture, labeling, warning, instruction, training, selling, marketing, and distribution of aqueous film forming foam (AFFF) products containing the toxic chemicals collectively known as per and polyfluoroalkyl substances (PFAS). The Defendants' PFAS-containing AFFF products are highly toxic and dangerous as 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 failed to warn public entities and firefighter trainees, including the Plaintiff, who they knew would foreseeably come into contact with their AFFF products that use of and/or exposure to the Defendants' AFFF products containing PFAS and/or its precursors would pose a danger to human health, 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 his training and firefighting activities. 3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a multinational conglomerate corporation and designer, marketer, developer, manufacturer, distributor of firefighting equipment, including those with AFFF. It is located at 3M Center, St. Paul. Minnesota. ACG Chemicals Americas Inc. is a manufacturer of chemical products based in Exton, Pennsylvania. Amerex Corporation is a manufacturer of firefighting products based in Trussville, Alabama. Archroma U.S. Inc. is a global specialty chemicals company headquartered in Charlotte, North Carolina. Arkema, Inc. is a diversified chemicals manufacturer in North America, based in King of Prussia, Pennsylvania. Buckeye Fire Equipment Co. is a manufacturer of line of handheld and wheeled fire extinguishers, suppressing foam concentrates & hardware, and kitchen suppression systems, with principal place of business located at 110 Kings Road, Mountain, North Carolina. Carrier Global Corporation is a heating, ventilation, and air conditioning company based in Palm Beach Gardens, Florida. Chemdesign Products, Inc. is a chemical toll manufacturing company based in Marinette, Wisconsin. Chemguard, Inc. is a manufacturer of fire suppression and specialty chemicals, including AFFF, with principal place of business located at One Stanton Street, Marinette, Wisconsin. Chemicals, Inc. is a chemical manufacturing company based in Baytown, Texas. Chemours Company FC, LLC is a manufacturer of titanium technologies, fluoroproducts and chemical solutions based in Wilmington, Delaware. Chubb Fire, Ltd is a provider of security and fire protection systems based in United Kingdom. Clariant Corp. is a specialty chemical company based in Charlotte, North Carolina. Corteva, Inc. is an American agricultural chemical and seed company based in Wilmington, Delaware. Deepwater Chemicals, Inc. is a producer of organic and inorganic iodine derivatives based in Woodward, Oklahoma. Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical company based in Wilmington, Delaware. Dynax Corporation is a company that specializes in the production of fluorochemicals based in Pound Ridge, New York. E.I Dupont De Nemours & Co. is a provider of agriculture and specialty products with principal place of business at 1007 Market Street, Wilmington, Delaware. Kidde-Fenwal, Inc. is a manufacturer of fire protection systems based in Ashland, Massachusetts. Kidde PLC is a manufacturer of fire safety products based in Mebane, North Carolina. Nation Ford Chemical Company is a manufacturer of specialty organic chemicals based in Fort Mill, South Carolina. National Foam, Inc. is a manufacturer of foam concentrate, foam proportioning systems, fixed and portable foam firefighting equipment, with principal place of business located at 350 East Union Street, West Chester, Pennsylvania. The Chemours Company is a manufacturer of agricultural chemicals with principal place of business at 1007 Market Street, Wilmington, Delaware. Tyco Fire Products L.P., successor-in-interest to The Ansul Company, is a manufacturer of water-based fire suppression system components and ancillary building construction products, including Ansul brand of AFFF, headquartered at One Stanton Street, Marinette, Wisconsin. United Technologies Corporation was an American multinational conglomerate headquartered in Farmington, Connecticut. It merged with the Raytheon Company in April 2020 to form Raytheon Technologies. UTC Fire & Security Americas Corporation, Inc., f/k/a GE Interlogix, Inc., is a manufacturer of security and fire control systems based in Bradenton, Florida. [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 ABC PHONES: Baggott FLSA Collective Action Gets Class Certification ------------------------------------------------------------------- In the class action lawsuit captioned as JAMES BAGGOTT, on behalf of himself and all others similarly situated, v. ABC PHONES OF NORTH CAROLINA, INC., Case No. 5:19-cv-00504-BO (E.D.N.C.), the Hon. Judge Terrence W. Boyle entered an order: 1. certifying case as a collective action pursuant to 29 U.S.C. section 216(b) of the Fair Labor Standards Act (FLSA). 2. certifying the opt-out class defined as: "all store managers and non-managers who worked for the defendant in Wisconsin during the time period between November 8, 2017 through the date of the Court's preliminary approval of settlement, other than Alexander Vang and Darren Koutnik, and who do not timely submit an opt-out letter;" 3. preliminarily approving the Settlement Agreement; 4. setting a final approval hearing on May 24, 2021; 5. approving the class notice and Fair Labor Standards Act (FLSA) Consent Form; 6. confirming and appointing Rust Consulting as the Administrator to administer the terms of the Settlement Agreement and to notify and pay the class members; and 7. directing the Administrator, no later than 30 days from the entry of this Order, to complete the notice program to the class by mailing the class notices; ABC Phones of North Carolina, Inc. was founded in 1996. The Company's line of business includes providing two-way radiotelephone communication services such as cellular telephone services. A copy of the Court's order dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3d5IaIX at no extra charge.[CC] ABIOMED INC: Bid to Nix Local 705 Teamsters' Class Suit Pending --------------------------------------------------------------- Abiomed, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2021, for the quarterly period ended December 31, 2020, that the motion to dismiss the consolidated class action suit headed by Local 705 International Brotherhood of Teamsters Pension Fund, is pending. On or about August 6, 2019, the Company received a securities class action complaint filed on behalf of a single shareholder in the U.S. District Court for the Southern District of New York, on behalf of himself and persons or entities that purchased or acquired the Company's securities between January 31, 2019 through July 31, 2019. On October 7, 2019, a similar purported class action complaint was filed by a different shareholder on behalf of himself and persons or entities that purchased or acquired the Company's securities between November 1, 2018 and July 31, 2019. Also, on October 7, 2019, four shareholders filed applications to be appointed lead plaintiff and for their counsel to be appointed lead counsel for the class. Two of those shareholders also filed motions to consolidate the two cases and two of the shareholders have withdrawn their applications to be lead plaintiff. The complaints allege that the Company violated Sections 10(b) and 20(a) of and Rule 10b-5 under the Exchange Act, in connection with allegedly misleading disclosures made by the Company regarding its financial condition and results of operations. The Company believes that the allegations are without merit and plans to defend itself vigorously. On June 28, 2020, the Court issued an order consolidating the two cases and appointed Local 705 International Brotherhood of Teamsters Pension Fund as the lead plaintiff and the Labaton Sucharow firm as lead counsel. On September 17, 2020, the lead plaintiff filed an amended complaint in which they proposed a new class period of May 3, 2018 to July 31, 2019. Abiomed said, "As prescribed by a scheduling order, the Company filed a motion to dismiss in November 2020. The Company does not expect a decision on that motion until at least the first quarter of fiscal year 2022." Abiomed, Inc. is a provider of mechanical circulatory support devices and offers a continuum of care in heart recovery to heart failure patients. The Company develops, manufactures and markets proprietary products that are designed to enable the heart to rest, heal and recover by improving blood flow and/or performing the pumping function of the heart. The Company's products are used in the cardiac catheterization lab, or cath lab, by interventional cardiologists and in the heart surgery suite by heart surgeons for patients who are in need of hemodynamic support prophylactically or emergently before, during or after angioplasty or heart surgery procedures. The company is based on Danvers, Massachusetts. ADVANCED HOUSE: Peterson Sues Over Unpaid Wages for House Managers ------------------------------------------------------------------ JACK PETERSON, individually and on behalf of all others similarly situated, Plaintiff v. ADVANCED HOUSE SOBER LIVING LLC; CHRISTOPHER RUDD; and DOES 1 to 25, inclusive, Defendants, Case No. 21STCV05151 (Cal. Super., Los Angeles Cty., February 9, 2021) is a class action against the Defendants for violations of the California Labor Code and the California Business & Professions Code including failure to compensate for all hours worked, failure to pay minimum wages, failure to pay overtime, failure to provide accurate itemized wage statements, failure to pay wages owed every pay period, failure to pay wages when employment ends, failure to maintain accurate records, failure to give rest breaks, failure to give meal breaks, and failure to reimburse business expenses. The Plaintiff was employed as a house manager from May 2019 until June 2020. Advanced House Sober Living LLC is a health, wellness and fitness company in Venice, California. [BN] The Plaintiff is represented by: Harout Messrelian, Esq. MESSRELIAN LAW INC. 500 N. Central Ave., Suite 840 Glendale, CA 91203 Telephone: (818) 484-6531 Facsimile: (818) 956-1983 ADVANTAGE CHRYSLER: Toney FDCPA Suit Seeks Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as WILLIE TONEY, individually and on behalf of all others similarly situated, v. ADVANTAGE CHRYSLER-DODGE-JEEP, INC., a Florida corporation, SYNERGY MARKETING ADVISORS, INC d/b/a SYNERGY RESOURCE ADVISORS, a foreign corporation, and STRATICS NETWORKS, INC., a foreign corporation, Case No. 6:20-cv-00182-WWB-EJK (M.D. Fla.), the Plaintiff asks the Court to enter an order: 1. certifying a class and subclasses with respect to the claims for violation of the Telephone Consumer Protection Act (TCPA); 2. designating himself as class representative; and 3. designating his counsel as Class Counsel. The Plaintiff moves to certify the following proposed Class and Subclasses: -- Class: "all persons within the United States who during the four years prior to the filing of this lawsuit (1) were sent a prerecorded message (2) using software provided by Stratics, and (3) where the prerecorded message directed the individual to contact Defendant Advantage"; -- Service Subclass: "all persons within the United States who during the four years prior to the filing of this lawsuit (1) were sent a prerecorded message (2) using the software provided by Stratics, (3) where the prerecorded message directed the individual to contact the Defendant Advantage, and (4) where the Defendant Advantage exclusively obtained the individual's contact information as a result of the individual servicing their vehicle at Defendant Advantage's dealership and not from Advantage's website or as a result of the individual purchasing a vehicle from Advantage;" -- Purchase Subclass: "all persons within the United States who during the four years prior to the filing of this lawsuit (1) were sent a prerecorded message (2) using the software provided by Stratics, (3) where the prerecorded message directed the individual to contact the Defendant Advantage, and (4) where the Defendant Advantage obtained the individual's contact information because of the individual purchasing a vehicle from Advantage and not from Advantage's website;" -- Website Subclass: "all persons within the United States who during the four years prior to the filing of this lawsuit (1) were sent a prerecorded message (2) using the software provided by Stratics, (3) where the prerecorded message directed the individual to contact the Defendant Advantage, and (4) Advantage obtained the individual's contact information because of the individual inputting their information on Advantage's website;" and -- No Evidence Subclass: "all persons within the United States who during the four years prior to the filing of this lawsuit (1) were sent a prerecorded message (2) using the software provided by Stratics, (3) where the prerecorded message directed the individual to contact the Defendant Advantage, and (4) where the Defendant Advantage did not obtain the individual's contact information as a result of any of the following: (a) the individual purchasing a vehicle from Advantage, (b) the individual inputting their information on Advantage's website, or (c) the individual servicing their vehicle at Defendant Advantage's dealership." The Plaintiff contends that Advantage caused tens of thousands of prerecorded marketing messages to be sent to him and the putative Class members, in a nearly identical manner, using identical technology, and without Advantage obtaining the required written consent from him or any of the putative Class members. The Defendant Advantage -- a car dealership -- hired Synergy Marketing Advisors, Inc. to send prerecorded messages advertising Advantage's dealership. To carry out its task, Synergy utilized a sub-vendor, YFFCO d/b/a PrimaryLens, and an individual named Joshua Stocks. Mr. Stocks used technology provided by the Defendant Stratics Networks, Inc., a Canadian company that provides prerecorded message transmission services to various companies throughout the U.S. The marketing prerecorded messages were sent to numerous individuals without anyone first obtaining the individuals' express written consent as required under the TCPA and its implementing regulations, says the complaint. Advantage is part of the Sullivan Automotive Group and is an automotive retailer that sells and services new and used Honda vehicles. A copy of the Plaintiff's motion to certify class dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/378WpsR at no extra charge.[CC] The Plaintiff is represented by: Ignacio J. Hiraldo, Esq. IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Telephone: (786) 496-4469 E-mail: ijhiraldo@ijhlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd No. 607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, Fl 33301 Telephone: (954) 533-4092 E-mail: MEisenband@Eisenbandlaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com ALLERGAN USA: Field Sues Over Breast Implants' Adverse Events ------------------------------------------------------------- LUCY FIELD, individually and on behalf of all others similarly situated, Plaintiff v. ALLERGAN USA, INC.; ALLERGAN, INC.; ALLERGAN PLC; and ALLERGAN AUSTRALIA PTY, LTD., Defendants, Case No. 1:21-cv-00147-TSE-JFA (E.D. Va., February 10, 2021) is a class action against the Defendants for strict liability, negligence, unjust enrichment, breach of the implied warranty of merchantability, negligent misrepresentation, and violations of the Australian Consumer Law. The case arises from the Defendants' manufacturing of defective BIOCELL breast implants and failure to adequately warn patients, medical professionals, and the Food and Drug Administration (FDA) about the product's association to anaplastic large cell lymphoma (BIA-ALCL), a deadly cancer of the immune system. In order to conceal the true number of adverse event reports, Allergan submitted reports with incorrect manufacturer names instead of under the name Allergan. As a result, consumers, healthcare professionals, and the FDA were unable to detect trends in Allergan's products, depriving the market of the necessary information to make an informed decision about whether Allergan's products were safe and effective, the suit says. Allergan USA, Inc. is a wholly owned subsidiary of Allergan plc, with its principal place of business in New Jersey. Allergan, Inc. is a wholly owned subsidiary of Allergan plc, headquartered in Bridgewater Township, New Jersey. Allergan plc is a pharmaceutical company based in Ireland. Allergan Australia Pty, Ltd. was formerly a wholly owned subsidiary of Allergan, Inc. with its principal place of business in Gordon, New South Wales, Australia. [BN] The Plaintiff is represented by: Kristi C. Kelly, Esq. Andrew J. Guzzo, Esq. Casey Nash, Esq. KELLY GUZZO, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Telephone: (703) 424-7572 Facsimile: (703) 591-0167 E-mail: kkelly@kellyguzzo.com aguzzo@kellyguzzo.com casey@kellyguzzo.com - and – Shanon J. Carson, Esq. BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-4656 Facsimile: (215) 875-4604 E-mail: scarson@bm.net - and – John G. Albanese, Esq. BERGER MONTAGUE PC 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: jalbanese@bm.net ALLSTATE FIRE: Court Dismisses 2nd Amended Complaint in Cody Suit ----------------------------------------------------------------- In the case, ANDREA CODY, TRAEVION LOVE, BRITTANY BURK, and DANA WHITEFIELD, individually and on behalf of all others similarly situated, Plaintiffs, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY and ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Defendants, Civil Action No. 3:19-CV-1935-K (N.D. Tex.), Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas, Dallas Division, granted the Defendants' Second Amended Rule 12(b)(6) Motion to Dismiss and Motion to Strike Class Allegations. Plaintiffs Cody, Love, Burk, and Whitfield were insured under separate "but materially identical" automobile polices issued by Defendants Allstate Fire or Allstate County. Under the Policy for Plaintiffs Cody, Burk, and Whitfield, respectively, Defendant Allstate Fire provides coverage for "direct and accidental loss to the covered auto" that results from "collision with another object or by upset of that auto or trailer" or for loss that is "not caused by collision" subject to the relevant Declarations indicating such coverage. Plaintiff Love's Policy provides that Defendant Allstate County "will pay for direct and accidental loss to the covered auto and for loss caused by collision" subject to the Declarations indicating such coverage. The term "loss" is not defined under the Policy. The Policy for Plaintiffs Cody, Burk, and Whitfield, respectively, limits Defendant Allstate Fire's liability to "the actual cash value of the property or damaged part of the property at the time of the loss." Under Plaintiff Love's Policy, Defendant Allstate County's liability is limited to the "actual cash value of the stolen or damaged property." The term "actual cash value" is not defined in the Policy nor does the Policy otherwise describe the term. The Plaintiffs each had "an accident" involving their respective automobile that was covered by the Policy--Plaintiff Cody on Aug. 27, 2017, Plaintiff Love on Dec. 20, 2017, Plaintiff Burk on Nov. 12, 2018, and Plaintiff Whitfield on Aug. 28, 2017. Each Plaintiff filed a claim with the Defendants for property damage and, in each instance, the Defendants concluded that the automobile was a total loss. The Defendants then determined the value of that vehicle and subtracted the relevant deductible. For Plaintiffs Cody and Love, the Defendants added an amount for sales tax and also "DMV fee." Plaintiff Whitfield received an additional amount for sales tax as well as a "license and transfer fee." Plaintiff Burk received only the value on her total-loss vehicle after Defendant also subtracted the "salvage-retain value." The Plaintiffs dispute the valuation method the Defendants used in calculating the actual cash value of their total-loss vehicles. The Plaintiffs filed their Class Action Complaint in August 2019. The Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). In response, the Plaintiffs filed an Amended Class Action Complaint. The Defendants filed a Motion to Dismiss the Amended Complaint. Before the motion was fully briefed, the Fifth Circuit issued a decision in Singleton v. Elephant Ins. Co., 953 F.3d 334 (5th Cir. 2020), which arguably impacted the Plaintiffs' case. The Court ordered briefing from the parties as to the effect, if any, of the Fifth Circuit decision on the instant case. The parties timely filed their respective briefs. In addition to their brief, the Plaintiffs also filed a Motion for Leave to File a Second Amended Complaint which was fully briefed. The Court granted the Plaintiffs leave to amend their complaint in light of the Singleton opinion. The Plaintiffs filed their Second Amended Class Action Complaint, asserting claims for declaratory relief, breach of contract (based on two alternative theories), and a violation of the Prompt Payment Act in the Texas Insurance Code. The Defendants then filed the Motion that is currently before the Court, arguing several grounds exist for dismissing the Plaintiffs' claims. They contend generally that: The Plaintiffs' claims for breach of contract and declaratory judgment have no basis in Texas law; neither the Policy language nor Texas law require the Defendants to utilize either of the Plaintiffs' valuation methods to determine actual cash value of a total loss vehicle; the recent Fifth Circuit opinion in Singleton specifically precludes the Plaintiffs' breach of contract claim based on its Cost Approach; the declaratory judgment claim is duplicative and should be dismissed; the Plaintiffs' claim for a violation of the Prompt Payment Act must also be dismissed as there is no viable breach of contact claims; and, finally, it is facially apparent from the Complaint that the Plaintiffs' proposed class is not ascertainable and, therefore, should be dismissed. The Defendants also move to strike the Plaintiffs' class allegations regarding the declaratory judgment claim are not appropriate because the Plaintiffs primarily seek individualized monetary damages. The Plaintiffs respond that none of their claims are appropriate for dismissal. First, they argue the Motion cannot be granted because how "market value" (in reference to "actual cash value") should be measured under the Policy is an issue the Court must interpret. They also assert that "the amount of market value" of a particular property is a fact question and, therefore, not appropriate for determination at the motion to dismiss stage. The Plaintiffs also argue at length that the Singleton opinion is not applicable to this specific case and does not require dismissal of either breach of contract claim. However, if the Court determines Singleton does apply, the Plaintiffs concede Count III [breach of contract under Cost Approach] must be dismissed but also contend that "Count II [breach of contract under Comparable Sales Approach] cannot be dismissed" because Singleton clearly calls for the Comparable Sales Approach to be used in calculating market value of vehicles. They assert their Prompt Payment Act claim cannot be dismissed because their breach of contract claims survive dismissal. Finally, the Plaintiffs contend that their class allegations should not be dismissed at this stage. The Defendants reply that the Plaintiffs fail to address the absence of any Texas law or other authority that requires Defendants to use either the Cost Approach or Comparable Sales Approach (or any specific method at all) in calculating "market value" with respect to "actual cash value". Defendants argue again that Singleton is applicable, noting that Plaintiffs failed to distinguish this binding decision. Defendants also point out that Plaintiffs did not address Defendants' Motion to Strike the Class Allegations. As to breach of contract claims, Judge Kinkeade concludes both of the Plaintiffs' breach of contract claims must be dismissed for failure to plead a claim upon which relief can be granted. First, he finds that the Plaintiffs cannot get past the initial hurdle of sufficiently pleading their breach of contract claim. The Court has concluded that there is no requirement under the Policy or Texas law that Defendants calculate ACV using the Comparable Sales Approach; accordingly, there is no "fact issue on the question of the market value of" the Plaintiffs' vehicles. Second, as pled by the Plaintiffs, the breach of contract claim is not viable as a matter of law. There is no Policy language requiring Comparable Sales as the measurement of ACV or market value, and neither does any Texas law mandate this method in calculating ACV. The Plaintiffs allege the Defendants violated the Prompt Payment Act in failing "to pay for the losses and/or to follow statutory time guidelines for paying claims" under the relevant sections of the Texas Insurance Code. Judge Kinkeade opines that an insurer is liable for damages under the Prompt Payment Act only when the insured establishes the insurer is liable for the claim and the specified time to pay that claim has passed, citing Barbara Techs. Corp. v. State Farm Lloyds, 589 S.W.3d 806, 813 (Tex. 2019). The Court has concluded that Plaintiffs failed to state a claim for breach of contract as a matter of law and so those claims must be dismissed under Rule 12(b)(6). Because the Plaintiffs cannot establish the predicate liability in order to recover damages under the Prompt Payment Act, this claim must likewise be dismissed. In their Motion, the Defendants argue the Plaintiffs' claim for declaratory judgment must be dismissed because the declaratory relief sought is duplicative of the Plaintiffs' breach of contract claims. Judge Kinkeade finds that the Plaintiffs failed to plausibly allege a claim for breach of contract or violation of the Prompt Payment Act. There are no facts that permit the inference of a current controversy between the Plaintiffs and the Defendants. Because each of their substantive claims failed to state a cause of action upon which relief can be granted, the Plaintiffs have no underlying claim to which they can tether their claim for declaratory judgment. Therefore, their claim for declaratory judgment is dismissed. Finally, in their Motion, the Defendants ask the Court (1) to dismiss the Plaintiffs' class allegation because it is facially apparent from the Complaint that the purported class is not ascertainable and (2) to strike the class allegations as to the declaratory relief claim because the primary relief sought is an individualized award of monetary damage. The Plaintiffs respond that it is premature to rule on the issue that the alleged class is not ascertainable, especially where no discovery has taken place. They did not respond to the Defendants' motion to strike. Because none of the Plaintiffs' claims survive the Defendants' Motion to Dismiss, Judge Kinkeade need not rule on the Defendants' Motion to Strike the Class Allegations. Judge Kinkeade concludes that the Plaintiffs have failed to state a claim for breach of contract or violation of the Prompt Payment Act as a matter of law; the Plaintiffs' claim for declaratory judgment must be dismissed as there is no viable substantive claim and, alternatively, he declines to exercise its discretion to determine this claim. He, therefore, granted the Defendants' Motion to Dismiss, and dismissed all of the Plaintiffs claims. A full-text copy of the Court's Feb. 3, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/1uq0oixo from Leagle.com. ALLY FINANCIAL: Faces Clapp Suit Over Stock Market Manipulation --------------------------------------------------------------- SABRINA CLAPP; and DENISE REDFIELD, individually and on behalf of others similarly situated, Plaintiffs v. ALLY FINANCIAL INC.; ALPACA SECURITIES LLC; CASH APP INVESTING LLC; SQUARE INC.; DOUGH LLC; MORGAN STANLEY SMITH BARNEY LLC; E*TRADE SECURITIES LLC; ETRADE FINANCIAL CORPORATION; ETRADE FINANCIAL HOLDINGS, LLC; ETORO USA SECURITIES, INC.; FREETRADE, LTD.; INTERACTIVE BROKERS LLC; M1 FINANCE, LLC; OPEN TO THE PUBLIC INVESTING, INC.; ROBINHOOD FINANCIAL, LLC; ROBINHOOD MARKETS, INC.; ROBINHOOD SECURITIES, LLC; IG GROUP HOLDINGS PLC; TASTYWORKS, INC.; TD AMERITRADE, INC.; THE CHARLES SCHWAB CORPORATION; CHARLES SCHWAB & CO. INC.; FF TRADE REPUBLIC GROWTH, LLC; TRADING 212 LTD.; TRADING 212 UK LTD.; WEBULL FINANCIAL LLC; FUMI HOLDINGS, INC.; STASH FINANCIAL, INC.; BARCLAYS BANK PLC; CITADEL ENTERPRISE AMERICAS, LLC; CITADEL SECURITIES LLC; MELVIN CAPITAL MANAGEMENT LP; SEQUOIA CAPITAL OPERATIONS LLC; APEX CLEARING CORPORATION; THE DEPOSITORY TRUST & CLEARING CORPORATION, Defendants, Case No. 3:21-cv-00896 (N.D. Cal., Feb. 4, 2021) alleges violation of the Sherman Act. The Plaintiff alleges in the complaint that on January 27, 2021, after the close of the stock market and before the open of the the next trading day, the Fund Defendants coordinated and planned increased short volumes in anticipation of short calls on January 28, 2021. Allegedly, the Brokerage Defendants, that operate through Websites and mobile applications, disabled all buy features on their platforms and thereby left the Retail Investors with no choice but to sell or hold their rapidly dwindling stocks. The Brokerage Defendants did so to ensure that the stock prices for the Relevant Securities would go down in furtherance of the conspiracy. Other Brokerage Defendants displayed loading graphics on the landing pages for these Relevant Securities to prevent users from purchasing any more Relevant Securities. Plaintiffs and Class members, faced with an imminent decrease in the price of their positions in the Relevant Securities due to the inability of Retail Investors to purchase shares, were induced to sell their shares in the Relevant Securities at a lower price than they otherwise would have. Additionally, Class members that would have purchased more stock in the Relevant Securities given the upward trend in price could not do so, the suit says. By doing so, the Defendants and their co-conspirators forced Retail Investors to choose between selling the Relevant Securities at a lower price or holding their rapidly declining positions in the Relevant Securities. The Defendants did so to drive the price of the Relevant Securities down. The Defendants and their co-conspirators conspired to prevent the Retail investors from buying further stock in order to mitigate the Fund Defendants' exposure in their short positions. By forcing the Retail Investors to sell their Relevant Securities at lower prices than they otherwise would have, the Defendants artificially reduced the value of the Relevant Securities that Retail Investors either sold or held on to, added the suit. Ally Financial Inc. operates as a financial holding company. The Company offers automotive financial services. [BN] The Plaintiffs are represented by: Eric Lechtzin, Esq. EDELSON LECHTZIN LLP 3 Terry Drive, Suite 205 Newtown, PA 18940 Telephone: (215) 867-2399 Facsimile: (267) 685-0676 E-mail: elechtzin@edelson-law.com AMAZON.COM INC: Averts Employees' Class Action Over BLM Retaliation ------------------------------------------------------------------- Daniel Plaks, writing for TipRanks, reports that Amazon and its subsidiary Whole Foods have been cleared of wrongdoing by a US federal judge for allegedly illegally punishing employees who chose to show support for the Black Lives Matter (BLM) movement in solidarity with their black colleagues by wearing BLM facemasks, according to Reuters. The class action, filed in July last year accused Whole Foods and its parent Amazon (AMZN) of "disciplining employees for wearing these masks" by sending them home without pay and even threatening them with termination, Reuters reported. The lawsuit read, "Whole Foods' selective enforcement of its dress code in disciplining employees who wear apparel expressing support for the Black Lives Matter movement constitutes unlawful discrimination on the basis of race and on the basis of employees' affiliation with and advocacy for Black employees. Whole Foods has further unlawfully retaliated against its employees in violation of Title VII for their opposition to its unlawful and discriminatory practices." According to the Reuters report, U.S. District Judge Allison Burroughs disagreed and on Feb. 5 wrote in her judgement that "At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace," adding, "However unappealing that might be, it is not conduct made unlawful by Title VII." According to Reuters, the judge encouraged the employees that if they didn't like the companies' policies, they should try influence a change in policy or perhaps even find somewhere else to work. A spokesperson for Whole Foods and on behalf of parent Amazon responded to the judge's decision saying that its dress code was "facially neutral" and that the companies support the BLM movement. (See Amazon stock analysis on TipRanks) Jefferies analyst Brent Thill reiterated his Buy rating on Amazon following the release of its better-than-expected Q4 financial results and raised his price target to $4,000 from $3,800. This implies upside potential of around 19% from current levels. Thill believes that Amazon will be a primary beneficiary of a permanent increase in e-commerce adoption and is confident that Amazon can continue "printing upside to expectations" in the upcoming three quarters despite tougher comps. The rest of the Street is in line with Thill's outlook and gives Amazon a Strong Buy consensus rating based on 30 unanimous Buy recommendations. The average analyst price target of $4,106.14 suggests upside potential of more than 22% over the next 12 months. Amazon receives a 9 out of 10 on TipRanks' Smart Score which implies that the stock has strong potential to outperform analysts' expectations. [GN] AMAZON.COM INC: Class Action Against Firm, Whole Foods Dismissed ---------------------------------------------------------------- Amazon and its subsidiary Whole Foods have been cleared of wrongdoing by a US federal judge for allegedly illegally punishing employees who chose to show support for the Black Lives Matter (BLM) movement in solidarity with their black colleagues by wearing BLM facemasks, according to Reuters. The class action, filed in July last year accused Whole Foods and its parent Amazon (AMZN) of "disciplining employees for wearing these masks" by sending them home without pay and even threatening them with termination, Reuters reported. The lawsuit read, "Whole Foods' selective enforcement of its dress code in disciplining employees who wear apparel expressing support for the Black Lives Matter movement constitutes unlawful discrimination on the basis of race and on the basis of employees' affiliation with and advocacy for Black employees. Whole Foods has further unlawfully retaliated against its employees in violation of Title VII for their opposition to its unlawful and discriminatory practices." According to the Reuters report, U.S. District Judge Allison Burroughs disagreed and wrote in her judgement that "At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace," adding, "However unappealing that might be, it is not conduct made unlawful by Title VII." According to Reuters, the judge encouraged the employees that if they didn't like the companies' policies, they should try influence a change in policy or perhaps even find somewhere else to work. A spokesperson for Whole Foods and on behalf of parent Amazon responded to the judge's decision saying that its dress code was "facially neutral" and that the companies support the BLM movement. (See Amazon stock analysis on TipRanks) Jefferies analyst Brent Thill reiterated his Buy rating on Amazon following the release of its better-than-expected Q4 financial results and raised his price target to $4,000 from $3,800. This implies upside potential of around 19% from current levels. Thill believes that Amazon will be a primary beneficiary of a permanent increase in e-commerce adoption and is confident that Amazon can continue "printing upside to expectations" in the upcoming three quarters despite tougher comps. The rest of the Street is in line with Thill's outlook and gives Amazon a Strong Buy consensus rating based on 30 unanimous Buy recommendations. The average analyst price target of $4,106.14 suggests upside potential of more than 22% over the next 12 months. Amazon receives a 9 out of 10 on TipRanks' Smart Score which implies that the stock has strong potential to outperform analysts' expectations. [GN] AMERICAN MEADOWS: Williams Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against American Meadows Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. American Meadows Inc., Case No. 1:21-cv-01267 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American Meadows, founded in 1981 -- https://www.americanmeadows.com/ -- is one of the most respected online retailers of wildflower seeds, perennial plants and flower bulbs in North America.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal AMERICAN TOMBOY: Burbon Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against American Tomboy, Inc. The case is styled as Luc Burbon and on behalf of all persons similarly situated v. American Tomboy, Inc., Case No. 1:21-cv-00764 (E.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American Tomboy creates unique, athletic, brand apparel for girls in motion.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com APPCO GROUP: Federal Court Approves Class Action Settlement ----------------------------------------------------------- Paul Forbes, Esq., Sean Selleck, Esq., and Kathleen Jeremy, Esq., of Baker McKenzie, in an article for Lexology, report that in the recent decision of Bywater v Appco Group Australia Pty Ltd [2020] FCA 1877, his Honour Justice Lee of the Federal Court approved a proposed settlement of a class action commenced against Appco Group Australia Pty Ltd. The decision highlights some of the persuasive factors a Court will consider in determining whether to approve a settlement where the proposed settlement sum is significantly less than the asserted value of a group's claims. Key takeaways His Honour's decision provides guidance as to some of the key factors which will prove determinative as to whether a proposed class action settlement will be approved as being fair and reasonable and in the interests of all group members in circumstances where the claimant maintains that its claims have good prospects but the proposed settlement sum is considerably less than the asserted value of the group's claims (even where the prospects and asserted value of those claims are disputed by the respondent). In particular, his Honour's decision highlights that: 1. a respondent's available assets and the associated prospects of recovery will be a persuasive factor as to whether a settlement is likely to be approved; 2. a Court will wish to be satisfied that adequate investigations have been undertaken to explore the asset position of a respondent, even where there is no third party funding to do so; 3. notwithstanding the usual practice of an applicant leading the evidence for a settlement approval application, in circumstances where the asset position of the respondent is a relevant factor, it may be necessary for a respondent to lead direct evidence as to its financial position; 4. a Court will be focused on ensuring that group members are adequately informed as to a proposed settlement and any investigations into a respondent's asset position, and may even seek active engagement from the group as to the proposed course of action; and 5. substantial support of a proposed settlement by the group is likely to be necessary, notwithstanding that it may result in minimal returns to group members. In more detail Background By way of representative proceeding commenced in October 2016 under Part IVA of the Federal Court of Australia Act 1976 ("FCA Act"), it was alleged that Appco Group Australia Pty Ltd ("Appco") breached various provisions of the Fair Work Act 2009, including by allegedly falsely representing to group members that they were independent contractors and not employees. Appco denied all the allegations. In August 2020, the parties executed a deed of settlement, resulting in an application to the Court by the Applicant for settlement approval pursuant to section 33V of the FCA Act ("Settlement Approval Application"). The application was supported by evidence from the solicitor for the Applicant and group, to the effect that the agreed settlement sum of $1.9 million was proposed on the basis that Appco's only identifiable asset was approximately $2.1 million in cash. The Applicant maintained that its claims, which it valued at $65 million, had good prospects of success. Appco disputed both the Applicant's assessment of prospects and the claimed quantum of the Applicant's claims, but nonetheless supported the settlement. This was due to the fact that its business had been considerably negatively impacted by the class action and associated publicity, resulting in the significant diminishment of the value of its business and of its recoverable assets and, in circumstances where the proceedings were being conducted in a "no cost" jurisdiction under the Fair Work Act, the continued defence of the claim was likely to exhaust its remaining assets, regardless of the outcome. Following multiple listings before his Honour over the course of the following months, his Honour ultimately made orders on 22 December 2020 approving the terms of the settlement. Adjournment of Settlement Approval Application Upon first return of the Settlement Approval Application in October 2020, his Honour indicated an initial disposition to refuse settlement approval, but adjourned the application part-heard to give the parties time to file further evidence in support of the Settlement Approval Application. In particular, his Honour observed that: the claims of the Applicant and group members were asserted, by the Applicant and group's legal representatives, to be in the range of $65 million and to have good prospects of success (both of which were denied by Appco), in the context of the proposed settlement sum of $1.9 million, with a significant proposed distribution to the litigation funder. This was resulting in what his Honour described as a "derisory" return to group members; and while the settlement was proposed in the context of Appco's only identifiable asset being a relatively small amount of cash, there had been no "proper investigation" by the solicitors for the Applicant and group as to Appco's asset position, but rather there was only mere "speculation" as to recovery prospects. While his Honour emphasised that there was no suggestion that the solicitors for Appco, in making representations as to Appco's financial position, had acted in any other than an appropriate way based on instructions, nor was there any suggestion that the information was wrong or that Appco had done anything wrong, his Honour emphasised the need for further investigation as to Appco's financial position in the context of the proposed settlement sum (relative to the asserted value of the claims) and the amount already spent on the litigation. His Honour took this position notwithstanding the litigation funder's expressed refusal to fund further investigations or the continuation of the case should the Settlement Approval Application be refused. Further investigations and evidentiary material Following the adjournment of the Settlement Approval Application, further investigations were undertaken by the solicitors for the Applicant, resulting in further evidentiary material being served in support of the Settlement Approval Application. Candid affidavit material was also served by Appco directly putting into evidence and supporting the representations previously made in respect of its financial position (including the identification of a small amount of additional cash by Appco itself, resulting in a commensurate augmentation of the proposed settlement sum). As noted by his Honour in the decision ultimately approving the settlement, the further investigations did not impeach any of the information provided by Appco or identify any other assets that might be realistically recoverable by the Applicant. Notice to group members Given his Honour's concern to ensure that group members had been provided with a straightforward notice as to the further investigations into Appco's assets, his Honour made an order at a further listing on 30 November 2020 that a notice be sent to all group members pursuant to section 33X(6) of the FCA. That notice, which was distributed to group members in early December 2020 (amongst other things): 1. set out the proposed settlement amount, including the proposed distributions as between the litigation funder, solicitors, Applicant, and the group; 2. stated the concern held by the solicitors for the Applicant and group that there was a "real risk, if the litigation [were] to continue, that there would be no return to Group Members"; and 3. sought an indication from group members as to whether they wished for the proposed settlement to be approved. "Overwhelming support" for settlement approval According to evidence affirmed by the solicitor for the Applicant and group, a total of 130 responses were received in response to the notice (from a total group size of approximately 1,172 individuals), of which: 1. 119 group members confirmed they wished the settlement be approved; 2. 8 group members confirmed they wished the settlement be approved, but made "adverse" comments regarding the settlement; 3. 2 group members requested to opt out of the proceeding; and 4. 1 group member responded in a way which was "initially unclear", but which his Honour considered seemed to indicate "a willingness to move ahead with the current settlement". His Honour observed that "the overwhelming response to the Notice is that the group members wish to proceed", which his Honour noted "seem[ed] to . . . be a very powerful factor militating in favour of approving the settlement". His Honour also observed that "various improvements" had been made to the proposed settlement, including by fixing administration costs and the augmentation of the settlement sum (referred to above). Ultimately, his Honour held that "In circumstances where group members overwhelmingly take the attitude they have, together with the fact that [his Honour was] satisfied that further attempts to augment any sum for settlement [would] likely be a case of throwing good money after bad". His Honour concluded that the settlement ought be approved, it being fair and reasonable and in the interests of all group members. Baker McKenzie acted for Appco Group Australia Pty Ltd in this Federal Court Proceeding No. NSD 1857/2016. [GN] APPLE INC: Seeks Ct. OK on Joint Stipulation Regarding Class Period ------------------------------------------------------------------- In the class action lawsuit captioned as AMANDA FRLEKIN, AARON GREGOROFF, SETH DOWLING, DEBRA SPEICHER; AND TAYLOR KALIN, on behalf of themselves and all others similarly situated, v. APPLE INC., Case No. 3:13-cv-03451-WHA (N.D. Cal.), the Parties ask the Court to enter an order granting their joint stipulation regarding class period as follows: 1. Class Members shall be permitted to seek recovery for time spent participating in bag and technology checks pursuant to Apple's bag and technology search policy through and including December 17, 2015 and no later; 2. Apple's agreement to formally produce documents supporting Apple's contention that it discontinued its bag and technology check policy on December 17, 2015 shall have no effect on the trial court's past or future orders regarding discovery in this case, and such formal production shall occur no later than one day after the date the Court signs the proposed order accompanying this Stipulation; and 3. Provided the Court signs the proposed Order accompanying this Stipulation, the Plaintiffs' Motion for Order Expanding Class Damages Period Pursuant to Parties' Agreement may be deemed withdrawn. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services. A copy of the Parties' motion dated Feb. 3, 2020 is available from PacerMonitor.com at https://bit.ly/2OkgV35 at no extra charge.[CC] Attorneys for the Plaintiffs and the Class, are: Kimberly A. Kralowec, Esq. Kathleen Styles Rogers, Esq. KRALOWEC LAW P.C. 750 Battery Street, Suite 700 San Francisco, CA 94111 Telephone: (415) 546-6800 Facsimile: (415) 546-6801 E-mail: kkralowec@kraloweclaw.com krogers@kraloweclaw.com - and - Lee Shalov, Esq. Brett Gallaway, Esq. McLAUGHLIN & STERN, LLP 260 Madison Avenue New York, NY 10016 Telephone: (212) 448-1100 Facsimile: (212) 448-0066 E-mail: lshalov@mclaughlinstern.com bgallaway@mclaughlinstern.com The Defendant is represented by: Julie A. Dunne, Esq. Matthew Riley, Esq. Vani Parti, Esq. Mandy Chan, Esq. Andrea Ortega, Esq. DLA PIPER LLP (US) 401 B. Street, Suite 1700 San Diego, CA 92101-4297 Telephone: (619) 699-2700 Facsimile: (619) 699-2701 E-mail: julie.dunne@us.dlapiper.com matthew.riley@us.dlapiper.com vani.parti@us.dlapiper.com mandy.chan@us.dlapiper.com andrea.ortega@us.dlapiper.com ASTRAZENECA PLC: Faruqi & Faruqi Reminds of March 29 Deadline ------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against AstraZeneca PLC ("AstraZeneca" or the "Company") (NASDAQ:AZN) and reminds investors of the March 29, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $50,000 investing in AstraZeneca stock or options between May 21, 2020 and November 20, 2020 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). There is no cost or obligation to you. Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making materially false and/or misleading statements and/or failing to disclose the following adverse facts pertaining to the Company's business, operations and financial condition, which were known to or recklessly disregarded by defendants: (1) that initial clinical trials for AZD1222 had suffered from a critical manufacturing error, resulting in a substantial number of trial participants receiving half the designed dosage; (2) that clinical trials for AZD1222 consisted of a patchwork of disparate patient subgroups, each with subtly different treatments, undermining the validity and import of the conclusions that could be drawn from the clinical data across these disparate patient populations; (3) that certain clinical trial participants for AZD1222 had not received a second dose at the designated time points, but rather received the second dose up to several weeks after the dose had been scheduled to be delivered according to the original trial design; (4) that AstraZeneca had failed to include a substantial number of patients over 55 years of age in its clinical trials for AZD1222, despite this patient population being particularly vulnerable to the effects of COVID-19 and thus a high priority target market for the drug; (5) that AstraZeneca's clinical trials for AZD1222 had been hamstrung by widespread flaws in design, errors in execution, and a failure to properly coordinate and communicate with regulatory authorities and the general public; (6) that, as a result of (1)-(5) above, the clinical trials for AZD1222 had not been conducted in accordance with industry best practices and acceptable standards and the data and conclusions that could be derived from the clinical trials was of limited utility; and (7) that, as a result of (1)-(7) above, AZD1222 was unlikely to be approved for commercial use in the United States in the short term, one of the largest potential markets for the drug. Specifically, on November 23, 2020, AstraZeneca issued a release announcing the results of an interim analysis of its ongoing trial for AZD1222. The announcement immediately began to raise questions among analysts and industry experts. AstraZeneca disclosed that the interim analysis involved two smaller scale trials in disparate locales (the United Kingdom and Brazil) that, for unexplained reasons, employed two different dosing regimens. One clinical trial provided patients a half dose of AZD1222 followed by a full dose, while the other trial provided two full doses. Counterintuitively, AstraZeneca claimed that the half dosing regimen was substantially more effective at preventing COVID-19 at 90% efficacy than the full dosing regimen, which had achieved just 62% efficacy. In the days that followed, additional revelations were made regarding problems with AstraZeneca's AZD1222 clinical trials. For example, the differing dosing regimens were revealed to be due to a manufacturing error rather than trial design. Also, the half-strength dose had not been tested in people over the age of 55 - despite the fact that this population was the most vulnerable to COVID-19. Moreover, certain trial participants received their second dose later than originally planned. U.S. regulators stated that if AstraZeneca could not clearly explain the discrepancies in its trial results, the results would most likely not be sufficient for approval for commercial sale in the United States. As negative news reports continued to reveal previously undisclosed problems and flaws in AstraZeneca's clinical trials for AZD1222, the price of AstraZeneca ADSs fell to $52.60 by market close on November 25, 2020, a 4.88% decline over three trading days in response to adverse news on abnormally high volume. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding AstraZeneca's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP ( ). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. [GN] ATHENA ALLERGY: Paguada Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Athena Allergy, Inc. The case is styled as Dilenia Paguada, on behalf of herself and all others similarly situated v. Athena Allergy, Inc., Case No. 1:21-cv-01245 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Athena Allergy -- https://athenaallergy.com/ -- sells certified, nickel-free products from certified nickel-free belts, buckles, jewelry, and nickel test kits.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com BALBOA THRIFT: Bid to Compel Arbitration & Dismiss Camarillo OK'd ----------------------------------------------------------------- In the lawsuit entitled VERONICA CAMARILLO, individually and on behalf of others similarly situated, Plaintiff v. BALBOA THRIFT AND LOAN ASSOCIATION, a California corporation, Defendant, Case No. 3:20-cv-00913-BEN-BLM (S.D. Cal.), the U.S. District Court for the Southern District of California grants the Defendant's motion to compel arbitration and dismiss. Plaintiff Camarillo, individually and on behalf of others similarly situated, brings the putative action against the Defendant, a California corporation for violations of the Fair Credit Reporting Act. On February 21, 2015, the Plaintiff entered into a Retail Installment Sale Contract--Simple Finance Charge (With Arbitration Provision) ("RISC") with Yucca Valley Chrysler Center for the purchase and financing of a 2014 Fiat 500 vehicle. The RISC required the Plaintiff to make monthly payments of $395.07 until February 23, 2021, as part of her agreement to finance the purchase of her $16,900 Vehicle by agreeing to pay 19% interest for a total amount owed at the end of the RISC term of $28,945.04. Page 2 of the RISC contained a section entitled "Agreement to Arbitration." The Plaintiff signed the Arbitration Provision. On March 3, 2015, Yucca Valley assigned the RISC to the Defendant, at which time the Defendant carried the loan to the Plaintiff in the sum of $16,900.36. From April 10, 2015 to November 12, 2018, or more than three years, the Plaintiff made payments on the loan. However, according to the RISC, these payments were supposed to continue through February 23, 2021, meaning the Plaintiff still owed about 27 months of payment when she ceased making payments in November 2018. In January 2019, the Plaintiff voluntarily surrendered the Vehicle to the Defendant. She alleges that by surrendering the Vehicle, her "account" with the Defendant closed, and she no longer owed a balance due. On April 5, 2019, the Vehicle was sold at a private sale. Shortly thereafter, on April 23, 2019, the Defendant sent a Notice of Deficiency and Demand for Payment to the Plaintiff, notifying her that she owed a deficiency balance of $10,674.96, which represented the balance due after the Defendant had credited the proceeds from the sale of the Vehicle to the Plaintiff's account. On May 10, 2019, the Plaintiff sent the Defendant a letter acknowledging receipt of its notice but claiming the Vehicle had been inoperable since December 6, 2016, so she stopped making payments because she was no longer able to afford to continue to put money into repairs while also making payments on the loan. On July 29, 2019, the Defendant "pulled" her Experian credit report. When the Plaintiff reviewed her July 31, 2019 credit report, she discovered this unauthorized "hard" inquiry. On September 17, 2019, the Defendant filed a small claims complaint against the Plaintiff. On May 15, 2020, the Plaintiff filed the lawsuit against the Defendant, alleging one claim for relief for violation of the FCRA. On May 29, 2020, she served the Defendant by substituted service, meaning a responsive pleading was due by June 19, 2020. Before the Court is the Defendant's Motion to Compel Arbitration and Dismiss the Action, or Alternatively, Stay the Action Pending Arbitration. The motion was submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. Discussion The Defendant argues that the Court should compel arbitration because the Plaintiff signed a RISC that included an arbitration provision, which covers her federal claim arising under the FCRA. The Plaintiff responds that her FCRA claim arises from the Defendant's unlawful request and review of a credit report, not the sale of the Vehicle, and as such, her claim is not subject to arbitration. She further contends that even if Defendant relies on an ostensible outstanding debt owed on the Vehicle as justification for pulling the credit report, the Defendant failed to prove such a debt exists. As a result, the Defendant fails to show the resolution of the Plaintiff's FCRA claim requires the Court to rely on or refer to the RISC, so the Defendant has not carried its burden of showing a valid agreement to arbitrate the dispute at issue, and the Court should deny the motion. In response, the Defendant argues that FCRA's claim necessarily implicates the parties' relationship because if the Defendant qualifies as a creditor of the Plaintiff, the FCRA authorizes its act of pulling her credit report as a matter of law. Because the Arbitration Provision requires arbitration of any dispute arising out of the parties' relationship, the Defendant contends the Court must order the parties to arbitration. The Defendant also contends in its Reply Brief that even the matter of whether the parties' dispute falls within the scope of the Arbitration Provision is subject to determination by the arbitrator, not the Court. District Judge Roger T. Benitez notes that the Plaintiff's dispute with the Defendant arises out of a statute (the FCRA) and exists between herself and the original lender's assignee, the Defendant, and relates to the resulting creditor-debtor relationship arising out of the RISC. As such, the Judge finds the Arbitration Provision in the RISC at constitutes a valid agreement to arbitrate and is unpersuaded by the Plaintiff's arguments that the Arbitration Provision is unconscionable. In the case, the Defendant argues that in order for the Court to grant its Motion, it need only "assert: (1) the existence of a dispute between the parties; (2) a written agreement that includes an arbitration provision purporting to cover the dispute; (3) interstate or foreign commerce; and (4) the opposing party's failure or refusal to arbitrate the dispute." The Plaintiff responds that the "Defendant's motion should be denied because: (a) Plaintiff's FCRA claim does not arise out of or related [sic] to the parties' former purchase agreement" and "(b) expanding the scope of the arbitration to include the FCRA claims would be unconscionable." The Court finds the RISC requires the parties to arbitrate their dispute, including the gateway issue of whether the Arbitration Provision covers the dispute at issue. Judge Benitez notes that in thecase, neither party contends that (1) they lacked the capability to contract, (2) the RISC or Arbitration Provision lacked a lawful object, or (3) the RISC or Arbitration Provision lacked consideration. Rather, as part of her argument that there is no valid agreement to arbitrate, the Plaintiff advances two arguments: First, she argues that her FCRA claim does not arise out of the alleged relationship between the parties, and is, therefore, not covered by the Arbitration Provision. Second, the Plaintiff contends that expanding the scope of the arbitration agreement to add the FCRA claim that arose after the account was closed, and the Vehicle was surrendered would be unconscionable. Because the first argument predominantly pertains to whether the Plaintiff's claim falls within the scope of the Arbitration Provision rather than whether the agreement itself is valid, the Court defers addressing that issue until it addresses whether the Plaintiff's claim is covered by the Arbitration Provision. As to mutual consent, the Plaintiff argues somewhat paradoxically not that the RISC or its Arbitration Provision are unconscionable or that she did not consent to their terms, but that if the Court interprets them as covering the FCRA claim, it would be unconscionable. Thus, the Plaintiff contends that the Defendant has failed to show a valid agreement to arbitration. However, the Court finds the Plaintiff fails to explain how or why the RISC does not constitute a valid agreement to arbitrate. Judge Benitez concludes that the Arbitration Provision is not unconscionable, the parties mutually consented to arbitration and the Arbitration Provision covers the Plaintiff's FCRA claim. Here, no set of facts could avoid that the gateway issues of arbitration must be determined by the arbitrator, and even if the arbitrator determined the Plaintiff's FCRA claim was not subject to the Arbitration Provision, the Court finds the RISC in conjunction with the law prevent the Plaintiff from stating a plausible claim for relief. Because the Court has dismissed the sole claim in this case, the Defendant's request for a stay is denied as moot. The Plaintiff objects to the Supplemental Declaration of Christine Hatfield and Exhibits C through G, which were not attached to the Defendant's the original motion. She argues that because she did not have the opportunity to review the exhibits and address them before the Court, they should not be considered by the Court and should be stricken from the record. As stated, the Plaintiff does not contend the new evidence cannot be authenticated, lacks foundation, is irrelevant, or represents hearsay evidence. The Court finds the exhibits to which the Plaintiff objects were produced in response to the Plaintiff's declaration in which she denied owing a deficiency balance. Further, given the Court's application of a "summary judgment type" standard, as well as the incorporation by reference doctrine's mandate to consider documents essential to the plaintiff's claims so as to prevent the plaintiff from defeating a motion to dismiss by failing to attach relevant evidence, the Court finds such evidence appropriate for determination. That being said, although the Court considered this evidence, such evidence was not dispositive to the Court's ultimate decision, and as such, neither prejudiced the Defendant nor changed the outcome of the order. The Defendant requests that the Court takes judicial notice of its small claims court case. Rule 201(b) of the Federal Rules of Evidence allows courts, at any stage of proceeding, to take judicial notice of (1) facts not subject to reasonable dispute and "generally known within the trial court's territorial jurisdiction" and (2) adjudicative facts, which "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." As a judicial record, the Small Claims Complaint is an appropriate item for judicial notice. As such, the Court grants the Defendant's Request for Judicial Notice. For these reasons, the Court rules as follows: 1. Defendant's Motion to Compel Arbitration is granted; 2. Defendant's Motion to Dismiss is granted with prejudice; 3. Defendant's Motion to Stay is denied as moot; 4. Plaintiff's Evidentiary Objections are overruled; 5. Defendant's Request for Judicial Notice is granted; and 6. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Order dated Feb. 4, 2021, is available at https://tinyurl.com/5785a9yb from Leagle.com. BANK OF AMERICA: EDD Cardholders Sues Over Unemployment Insurance ----------------------------------------------------------------- Christopher Mosson, on behalf of himself and all others similarly situated v. BANK OF AMERICA, N.A. Case No. 3:21-cv-00743-JCS (N.D. Cal., Jan. 29, 2021) alleges claims against Bank of America relating to the company's administration of California unemployment insurance and other benefits, pursuant to the Unfair Competition Law, the Consumer Privacy Act, and the Electric Funds Transfer Act. According to the complaint, Bank of America, has an exclusive contract to administer unemployment benefits in California. In administering these benefits, Bank of America has been either unwilling or unable to stop criminals from breaching Bank of America's systems and controls prevent the theft of Employment Development Department (EDD) benefits from EDD benefits recipients with a Bank of America EDD prepaid debit card (an EDD cardholder). The Plaintiff contends that Bank of America failed to act in accordance with industry security standards which require securing the private financial information of EDD cardholders and accounts, and by issuing EDD cards with "EMV chips," rather than issuing cards with only outdated and vulnerable "magnetic stripe" technology. Mr. Mosson was a victim of Bank of America’s failure to protect their client's EDD Benefits and failure to provide proper resolution to provide support. Mosson resides in Oakland, California. He is a sound, lights and video professional, providing support and assistance to venues hosting large events such as trade shows, concerts or conventions. This industry has been decimated by the COVID-19 pandemic making large gatherings unsafe and unlawful. As a result, he has been unable to work since last spring. Bank of America operates as a bank. The Bank offers saving and current account, investment and financial services, online banking, and mortgage and non-mortgage loan facilities, as well as issues credit card and business loans.[BN] The Plaintiff is represented by: P. Terry Anderlini, Esq. Joseph M. Goethals, Esq. Jackson D. Morgus, Esq. ANDERLINI & MCSWEENEY LLP 66 Bovet Road, Suite 285 San Mateo CA 94402 Telephone: (650) 212-0001 Facsimile: (650) 212-0081 E-mail: tanderlini@amlawoffice.com BANK OF AMERICA: Faces Class Action Over EDD Debit Card Hacking --------------------------------------------------------------- Kenny Choi and Abigail Sterling, writing for KPIX, report that the unemployment debit card accounts of tens of thousands of Californians have been hacked and frozen. KPIX has received e-mails from more than 300 victims since last October when we first exposed the massive hacks. We are now learning that Bank of America, which has the exclusive contract to handle the funds for the state Employment Development Department, is facing yet another class-action lawsuit. "I didn't think this was possible. Like my stomach, my heart just dropped into my stomach and I felt, like, so shocked," said Roland Oosthuizen. That was his reaction when he logged into his Bank of America EDD debit card account last September. "My account had been drained of $5,000 from the previous five days," Oosthuizen said. His debit card had been hacked at various ATMs around town. He and his mother Rosemary Mathews spent hours on the phone to file a claim. "That very first day I was on the phone seven hours and I am not kidding," Mathews said. Imagine her surprise two weeks later when she discovered her card had been hacked as well, for a thousand dollars. "It was really scary. I don't want to cry about this but it was my rent money and I didn't have it," Mathews said. Mother and son say the worst of it was the identical letters they received from the bank saying their claims were closed with no money back. It's the same thing KPIX heard from more than 300 people who reached out with similar stories. Most had their EDD Bank of America debit cards hacked at ATMs far from where they live. Others' accounts were hijacked, taken over by fraudsters who routed the money to their own accounts. "Someone had come into our account, stole our identity, changed our bank routing information, put in their own bank and routing information, wiped me of $7,500," said Michelle Barrionuevo Mazzini. Many ended up having their accounts frozen. "I had to verify my identity with EDD and I did so and it's been over a month and Bank of America still won't unfreeze my account at this time," said Andreea Puzderri. Many say they submitted all the evidence needed to prove their identity. "I've sent them my lease agreement with my identity, my W-2s, my pay stubs, everything that supports my claim and they still choose to arbitrarily hold on to nearly $5,000," said Julian Cardenas. "They tell me you have to verify your identification again . . . I'm not doing that, I did that, that's done!" exclaimed Brandy Allen. One common experience everyone mentioned: getting the runaround. "I have called them back and forth and, like everybody else does, they direct me to EDD, EDD directs me to them and I'm told something different every time," said Erin Haben. "Same thing as everybody else. Phone calls back and forth. EDD, Bank of America, identification verification, dah, dah, dah," Brandy Allen said. "One department tells you one thing, the other department tells you the exact contradicting answer and they treat you like you are the one that stole the money!" said Terri Schaffer. We wanted to get their reaction to some statements from a Bank of America executive, Faiz Ahmad, who was called on the carpet for the first time by lawmakers in Sacramento and who said: "We've added thousands of agents to our various call centers to ensure that claimants received the same treatment as any other Bank of America customer." All 56 people on our group zoom interview told us that's not true. Then we showed them another clip from Ahmad in which he claimed "The wait times at our call centers are one minute with the tail being between one and five minutes." Again, our interviewees told us in unison that is absolutely not true. "It's ridiculous. The minute that they hear you're (calling about) EDD, you're a second-class citizen," said Terri Schaffer. "It's very sad that an officer of such a great institution has such little knowledge of what is going on in his own company," said Luis Harbottle. Several told us they did get their money back but only after interviews with KPIX and CBS This Morning were broadcast. "I'm really grateful. It does feel hopeless at times but, you know, we just have to keep pushing forward," said Sandra Sanchez. Others got empty promises: "I received a letter saying that 'we issued a temporary credit for the amount that's been lost' but my account is still frozen so I don't have access to this account," said Miki Williams. Most in the group we interviewed have been waiting three to four months, some even longer. "It's been a year. It's still under investigation so I kind of lost hope, you know," said David Garcia. Lost hope and lost trust. "These cards are unsecured. No I don't want this card, get rid of the cards," said Greg Dodd. FAQs on Bank of America's website clearly say: "The Bank of America 'zero liability' policy protects you against fraudulent transactions." "Zero liability to me means zero liability," said Adam McNeile, an attorney with the law firm Kemnitzer, Barron and Krieg who represents Margaret and Roland in a class-action complaint against Bank of America that alleges, among other things, breach of contract or closing claims without investigating and failing to provide provisional credit. "With Rosemary and Roland, the letters were dated . . . two days after they opened the fraud claims and there's simply no way that Bank of America could have adequately investigated these fraud claims before closing them," McNeile said. The lawsuit also alleges negligence for issuing debit cards without security chip technology. "If Bank of america had put chips onto its cards then it would have been impossible for fraudsters to duplicate the cards and then withdraw money from ATMs, including Bank of America ATMs," McNeile said. As for Roland Oosthuizen, he ended up getting his $5,000 back, the day after filing the lawsuit. "I don't think it was a coincidence," Oosthuizen said. Rosemary Mathews is still waiting to get her $1,000 back. "This is our income. I mean, there are people worse than me. I'm sure people have gone bankrupt, have lost their houses, been evicted. It's just not right and I didn't even care if I didn't get all my money back or whatever. I just felt that Bank of America needed to be held accountable," Mathews said. Speaking with our group, we noticed that some people are beginning to get provisional credit. We don't know if it's a trend but, if it is, that's a good sign that Bank of America is feeling the pressure. Bank of America statement (Bill Halldin, Spokesperson) As California's unemployment program faces billions of dollars in fraud, Bank of America is working every day with the state to prevent criminals from getting money and ensuring legitimate recipients receive their benefits. We have added thousands of agents to answer phone calls and investigate claims for the areas of the program we are responsible for and, as a result, our average wait time for callers has dropped dramatically. While the vast majority of unemployment fraud is committed by those filing false applications, when fraudulent transactions occur on benefit cards we review those claims and restore money to legitimate recipients. [GN] BANK OF AMERICA: Fails to Secure EDD Account Info, Cajas Alleges ---------------------------------------------------------------- CLARA CAJAS, on behalf of herself and all others similarly situated v. BANK OF AMERICA, N.A., and DOES 1-20, inclusive, Case No. 3:21-cv-00869 (N.D. Cal., Feb. 3, 2021) alleges that Bank of America's has failed to store or transfer California Employment Development Department (EDD) cardholder and account information in a secure manner, resulting in a massive security breach that has resulted in millions of dollars stolen from EDD through unauthorized transactions. According to the complaint, some EDD cardholders who have had money stolen from their EDD account through unauthorized transactions report never having used their EDD card. Such unauthorized transactions could only have occurred if Bank of America failed to store or transfer EDD cardholder and account information in a secure manner. Despite the critical importance of EDD benefits, the financial institution with the exclusive contract to administer them -- Bank of America -- is either unwilling or unable to stop criminals from breaching Bank of America's systems and controls, and from siphoning off millions of dollars of EDD benefits one account at a time. Day after day, there are new stories of yet another EDD benefits recipient with a Bank of America EDD prepaid debit card (an "EDD cardholder") who went to use their card only to discover that all the money in their Bank of America EDD account ("EDD account") -- oftentimes, the only money that they had to survive -- was suddenly gone, says the complaint. The Plaintiff contends that by failing to safeguard state benefits from fraud, failing to detect the fraud as it was happening, and failing so spectacularly at resolving the issues caused by these failures, Bank of America has violated the California Consumer Privacy Act, the California's Unfair Competition Law, and Regulation E of the federal Electronic Funds Transfer Act; has breached its contract with EDD cardholders; has negligently failed to warn EDD cardholders about the risks associated with its EDD cards and accounts; and has negligently performed its contract with the California EDD, among other violations of law. Bank of America's unlawful conduct 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. EDD issues a variety of benefits to California residents, including but not limited to unemployment insurance benefits, disability insurance benefits, paid family leave benefits, 22 pandemic unemployment assistance benefits, and pandemic emergency unemployment compensation benefits (collectively, "EDD benefits"). In 2010, the Defendant entered into an exclusive contract with California EDD to issue debit cards through which individuals entitled to EDD benefits could access their funds, replacing distribution of EDD benefits through paper checks. Clara Cajas is a person residing in California. She is a registered dental assistant who works as an instructor. She found her hours at work reduced a few months prior to and then found herself out of work during the Covid-19 pandemic. She applied for and received EDD unemployment benefits; soon thereafter, she received a Bank of America EDD Visa debit card with a magnetic stripe (no EMV chip) to access her benefits; she was then the victim of unauthorized transactions on her card (twice); and despite its "Zero Liability" policy and Plaintiff's repeated requests for help, Bank of America has been either unwilling or unable to restore the missing funds to her account. Bank of America is one of the largest banking associations in the United States.[BN] The Plaintiff is represented by: Mary E. Alexander, Esq. Brendan D.S. Way, Esq. Arin R. Scapa, Esq. Catalina S. Munoz, Esq. MARY ALEXANDER & ASSOCIATES, P.C. 44 Montgomery Street, Suite 1303 San Francisco, CA 94104 Telephone: (415) 433-4440 Facsimile: (415) 433-5440 E-mail: malexander@maryalexanderlaw.com bway@maryalexanderlaw.com ascapa@maryalexanderlaw.com cmunoz@maryalexanderlaw.com BANK OF AMERICA: Jobless Workers Are Losing Benefits to Scammers ---------------------------------------------------------------- Mallory Sofastaii, writing for WMAR-2 News, reports that jobless workers are losing their unemployment insurance benefits to scammers. WMAR-2 News Mallory Sofastaii first reported on these incidents in October. Dozens of claimants have since reported similar fraudulent activity. "A thousand dollars was taken out of my account," said Donna Hooper. "On or about November 6 or 7, my debit card was hacked," said Vincent Trakney. Glenn Cooper realized $1,000 had been stolen from his account when he was buying groceries and his debit card was declined. "I feel like we're just stuck, we have no money right now," said Jessi Cooper, Glenn's wife. UI debit cards lack certain security features Matt Kelley was also surprised to see several withdrawals from his account when his Bank of America unemployment insurance debit card had been in his possession the entire time. "Three withdrawals for $900 taken out across various ATMs in Maryland," said Kelley. Bank of America knows fraud is an issue, however, claimants aren't being provided with the same protections as regular bank customers. Maryland unemployment insurance claimants are sent swipe cards, while other bank customers are issued cards with a chip, an "added layer of security," according to Bank of America's website. In addition to losing these crucial benefits, claimants accounts are frozen. It often takes weeks for new cards to be issued, and in many cases, claims filed to recoup the stolen funds are denied by Bank of America. "How could you dismiss that when someone is on unemployment and needs to be financially sound as they possibly can?" asked Hooper. A bank spokesperson told Sofastaii it's harder to identify fraud with claimants cards because there isn't an established spending and banking history like there is with other bank customers. "The investigation was actually closed the day after I initiated the claim, so they're not even investigating," said Trakney. "I can't get a straight answer from anybody let alone get my money back, which we need," Kelley said. Bank of America has said they've been in discussions with Maryland about options for card technology. However, there's no guarantee a chip would protect against this current fraud pattern. Bill Sieglein, an intelligence and cybersecurity expert, said chip cards would go a long way in preventing fraud. "That's the thing about a chip is it's really hard to recreate. With a magnetic stripe, it's just so easy to replicate. I mean, if I can capture one swipe almost any place, I could recreate your card physically. The difficult part is I have to get your pin," Sieglein said. In an interview on December 11, Sofastaii asked Maryland Secretary of Labor Tiffany Robinson about the security vulnerability. "Can you explain why UI debit cards don't have chip technology?," asked Sofastaii. "That would be a question for Bank of America, our partner," said Robinson. Sofastaii asked Robinson again about fraud involving Bank of America debit cards. "Besides just forwarding it to Bank of America, will there be a point where you have a conversation about how to make these cards more secure so these claimants keep their benefits?" asked Sofastaii. "We are on calls with Bank of America every single week for lots of different reasons. They are a good partner. We have asked for a lot of additional steps and some of those are things Bank of America is working on and some of those are things we're told they're not able to do, so really that's a direct question for Bank of America," said Robinson. Bank of America did not respond to Sofastaii's request for an interview. In an email, a spokesperson wrote: "We continually work to prevent fraud and use a number of tools to achieve that goal. We do not publicly disclose those efforts." - Bill Halldin, Bank of America spokesman "It's likely they've done the math and they've said if we issue chip cards to all these people, it's very expensive. Chip cards are not cheap. And I'm issuing a card where we're going to load $600 a month for a couple of months or $300 a month for a couple of months, and they might not even be a customer of our bank they're just doing this for this, so it's not worth our efforts to do that. It sounds callous, but it is just business, right?" said Sieglein. In the absence of chip cards, Sieglein said there are other things the bank can do. "If Bank of America or any issuing bank turns up their fraud protection, they would've caught this. Gheez, why is an ATM withdrawal in Florida happening on a card that was issued to a Maryland resident?," said Sieglein. Claimants feel like the bank is choosing its bottom line over protecting the money they need to pay their rent and feed their families. "It does feel like hey, me and my family were the victim of something here and you guys are further victimizing us. And on top of not giving us back the $2,800, you've now frozen my accounts so I can't get any of my other unemployment payments," Kelley said. "The state of Maryland is a customer, and we certainly are customers of the state of Maryland, so I think it's a horrible response," said Hooper. "I feel like I've been treated like a criminal for somebody that did something to me," said Trakney. A spokesperson with Bank of America said if a fraud victim's claim is denied, to ask the bank to reconsider. "In instances where we deny a claim, we encourage people who disagree with our decision to ask for reconsideration. We take any new information or further identity verification from the account holder, and if it addresses our concerns we will credit the customer's account." - Bill Halldin, Bank of America spokesman Sieglein added that direct deposit could potentially cut down on some of this fraud, however, Maryland is one of only three states that doesn't offer direct deposit without issuing a debit card first. In a news conference, lawmakers said they're working to ensure that people can receive their unemployment benefits through direct deposit and or a paper check. In California, there's a class action lawsuit claiming Bank of America failed to stop scammers from stealing money off unemployment insurance debit cards of struggling workers, including never securing the cards with chip technology. [GN] BAYER CROPSCIENCE: Lex Sues Over Monopoly of Crop Inputs Market --------------------------------------------------------------- CHARLES LEX v. BAYER CROPSCIENCE LP; BAYER CROPSCIENCE, INC.; CORTEVA INC.; CARGILL INCORPORATED; BASF CORPORATION; SYNGENTA CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR SOLUTIONS, INC.; FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG SOLUTIONS INC.; GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; AND TENKOZ INC., Case No. 3:21-cv-00122 (S.D. Ill., Feb. 2, 2021) is brought on behalf of the Plaintiff and on behalf of the classes consisting of persons or entities in the United States, including its territories, that, at least as early as January 1, 2014 and continuing through the present (the Class Period), purchased from a Defendant a Crop Input. The Plaintiff brings this action for treble damages under the antitrust laws of the United States against the Defendants. The market for "Crop Inputs" -- seeds and crop protection chemicals such as fungicides, herbicides, and insecticides --used by American farmers is one of the largest markets in the world with annual sales in excess of $65 billion. This market is dominated by: (1) four major manufacturers, Defendants Bayer CropScience Incorporated ("Bayer"), Corteva Incorporated ("Corteva"), Syngenta Corporation ("Syngenta"), and BASF Corporation ("BASF"), (collectively, the "Manufacturer Defendants") (2) three large wholesalers, Defendants Cargill Incorporated ("Cargill"), Winfield Solutions, LLC ("Winfield"), Univar Solutions, Incorporated ("Univar") (collectively the "Wholesaler Defendants"), that control the distribution of Crop Inputs to farmers; and (3) retailers, including Defendants CHS Incorporated ("CHS"), Nutrien Ag Solutions Incorporated ("Nutrien"), GROWMARK, Incorporated ("Growmark"), Simplot AB Retail Sub, Incorporated ("Simplot"), Tenkoz Incorporated ("Tenkoz"), and Federated Co-operatives Limited ("Federated") (collectively the "Retailer Defendants"). Historically and continuing to the present, the existing distribution and sale process for Crop Inputs maintains supra-competitive prices in part by denying farmers accurate product information, including pricing information, which would allow them to make better-informed purchasing decisions. As a result, the average price American farmers pay for Crop Inputs is increasing at a rate that dramatically outpaces yields, the suit says. For example, over the last 20 years, the price of one type of Crop Input, seed corn, rose 300%, while corn yields increased only 33% to 35%. In 1989, U.S. farms spent $15.6 billion overall on chemicals, fertilizer, and seeds. This number rose to $59 billion in 2019, outpacing inflation by 60%. Crop Inputs have consequently composed a larger share of farm budgets. In 1989, Crop Inputs composed 12.6% of farm expenditures; by 2019, Crop Inputs composed 16.4% of farmer spending. These increases are proving increasingly devastating to farmers, who are now the least profitable level of the American food supply chain and are drowning in hundreds of billions of dollars of operating debt that is forcing them into bankruptcy at a record pace. Recognizing these inefficiencies, several electronic Crop Inputs sales platforms launched in at least the past decade. These electronic platforms aimed to provide a cheaper, more transparent way for farmers to buy Crop Inputs, circumventing the existing opaque, convoluted distribution system. These new platforms threatened the Defendants' dominant market position and control over Crop Inputs pricing. As a result, rather than compete fairly with these new electronic platforms, the Defendants allegedly conspired to block the platforms' access to Crop Inputs by engaging in a group boycott. Given the structure of the Crop Inputs industry with the necessary relationships between manufacturers, wholesalers, and retailers, an effective boycott of electronic platforms would not have been feasible absent actual coordination and cooperation among Defendants. Absent an agreement among themselves, the Defendants' actions were against their independent economic self-interests. As a result of Defendants' misconduct, farmers remain trapped in an inefficient, opaque Crop Inputs market and have paid more for Crop Inputs than they would have but for the Defendants' wrongful conduct, the Plaintiff contends. Plaintiff Charles Lex is a resident of Iowa and citizen of the United States. During the Class Period and while residing in Iowa, the Plaintiff purchased Crop Inputs for his own use in his farming operation and not for resale that were sold by one or more the Defendants or their co- conspirators. Bayer AG is a multinational pharmaceutical, chemical, and agriculture company. Bayer CropScience Incorporated is a wholly-owned subsidiary of Bayer AG headquartered in St. Louis, Missouri that develops, manufactures, and sells Crop Inputs in the United States. Bayer CropScience LP is a wholly-owned subsidiary of Bayer AG, and is a crop science company that sells Crop Inputs in the United States. Corteva develops, manufactures, and sells Crop Inputs in the United States. BASF Corporation is the principal U.S.-based operating entity and largest subsidiary of BASF SE, a multinational pharmaceutical, seed, and chemical company. BASF develops, manufactures, and sells Crop Inputs in the United States. Syngenta Corporation is the main U.S.-based operating subsidiary of Syngenta AG. It is headquartered in Wilmington, Delaware. Syngenta develops, manufactures, and sells Crop Inputs in the United States. Cargill owns and operates a wholesaler AgResource Division, which distributes Crop Inputs to Cargill’s retail network and to retailers. Cargill's AgResource Division maintains contracts with each of Bayer, Corteva, BASF, and Syngenta entitling it to purchase and distribute branded Crop Inputs and entitling it to special rebates. Winfield Solutions is a Crop Inputs wholesaler. It maintains contracts with each of Bayer, Corteva, BASF, and Syngenta authorizing it to purchase and distribute branded Crop Inputs and entitling it to special rebates. Winfield is also a major Crop Inputs retailer that operates as a cooperative owned by its members, which are 650 Crop Inputs retail businesses operating 2,800 retail locations throughout the United States and parts of Canada. Univar Solutions , Incorporated is a Crop Inputs wholesaler. Univar maintains contracts with each of Bayer, Corteva, BASF, and Syngenta authorizing it to purchase and distribute branded Crop Inputs and entitling it to special rebates. Defendant CHS is one of the largest Crop Inputs wholesalers in the United States. Like many large wholesalers, it also operates retail networks bearing the CHS brand around the country that sell Crop Inputs from brick and mortar stores. Nutrien Ag Solutions sells Crop Inputs to farmers throughout the country and maintains contracts with each of Bayer, Corteva, BASF, and Syngenta authorizing it to purchase and distribute Crop Inputs and entitling it to special rebates. Nutrien is a large Crop Inputs retailer headquartered in Illinois. Tenkoz is one of the largest Crop Inputs retailers in the United States. Tenkoz purchases and sells 25% of all crop protection chemicals sold in the United States annually through 550 retail locations and 70 wholesale locations around the country. Simplot AB is a large Crop Inputs wholesaler and retailer that operates 135 retail locations across 27 states. Federated Co-operatives Ltd. is a large Crop Inputs retailer.[BN] The Plaintiff is represented by: Robert L. King, Esq. KOREIN TILLERY LLC One U.S. Bank Plaza 505 N. 7th Street, Suite 3600 St. Louis, MO 63101 Telephone: (314) 241-4844 E-mail: rking@koreintillery.com - and - W. Joseph Bruckner, Esq. Robert K. Shelquist, Esq. Brian D. Clark, Esq. Rebecca A. Peterson, Esq. Stephanie A. Chen, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Ave. South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: wjbruckner@locklaw.com rkshelquist@locklaw.com bdclark@locklaw.com rapeterson@locklaw.com sachen@locklaw.com - and - J. Barton Goplerud, Esq. Brandon M. Bohlman, Esq. SCHINDLER, ANDERSON, GOPLERUD & WEESE P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 E-mail: goplerud@sagwlaw.com bohlman@sagwlaw.com BEECH-NUT NUTRITION: Peek Files Product Liability Suit in New York ------------------------------------------------------------------ A class action lawsuit has been filed against Beech-Nut Nutrition Company. The case is styled as Laura Peek, Individually and on Behalf of All Others Similarly Situated v. Beech-Nut Nutrition Company, Case No. 1:21-cv-00167-TJM-ML (N.D.N.Y., Feb. 11, 2021). The nature of suit is stated as Contract Product Liability. Beech-Nut Nutrition Corporation -- https://www.beechnut.com/ -- is a baby food company that is owned by the Swiss branded consumer-goods firm Hero Group.[BN] The Plaintiff is represented by: Charles J. LaDuca, Esq. Katherine Van Dyck, Esq. CUNEO GILBERY & LADUCA, LLP - DC Office 4725 Wisconsin Avenue, NW, Suite 200 Washington, DC 20016 Phone: (202) 789-3960 Fax: (202) 789-1813 Email: charlesl@cuneolaw.com kvandyck@cuneolaw.com - and - Rebecca A. Peterson, Esq. Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Ave. S., Ste. 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Fax: (612) 339-0981 Email: rapeterson@locklaw.com rkshelquist@locklaw.com BEECH-NUT NUTRITION: Thomas Sues Over Mislabeled Baby Food Products ------------------------------------------------------------------- LAURIE THOMAS; ALISON KAVULAK; JEN MACLEOD; MARY NARVAEZ; ALISON FLEISSNER; EMILY BIGAOUETTE; LAURA EGGNATZ; TERESA HAGMAIER; and NICOLE FALLON, individually and on behalf of all others similarly situated, Plaintiffs v. BEECH-NUT NUTRITION COMPANY, Defendant, Case No. 1:21-cv-00133-TJM-CFH (N.D.N.Y., Feb. 5, 2021) is an action against the Defendant's negligent, reckless, and intentional practice of misrepresenting and failing to fully disclose the heavy metals and perchlorate or other ingredients that do not conform to the labels, packaging, advertising, and statements of Defendant's products sold. According to the complaint, the Defendant manufactures, markets, advertises, labels, distributes, and sells baby food products under the brand name Beech-Nut throughout the United States. The Defendant states that it offers natural and organic baby foods "that are free from artificial preservatives, colors and flavors." The Defendant's packaging and labels further emphasize that its baby food products are natural, organic, and safe for human infant consumption, the suit says. Yet nowhere in the labeling, advertising, statements, warranties, and packaging does the Defendant disclose that the products include and have a high risk of containing heavy metals or other ingredients that do not conform to the labels, packaging, advertising, and statements, added the suit Beech-Nut Nutrition Corporation produces food for infants and toddlers. The Company offers fruit cups, jarred meats and vegetables, yogurt, cookies, graham crackers, oatmeal, puree fruit pouches, apple juice, white grape juice, and bottled spring water. [BN] The Plaintiffs are represented by: Kevin Landau, Esq. Miles Greaves, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 -and- Daniel E. Gustafson, Esq. Amanda M. Williams, Esq. Raina C. Borrelli, Esq. Mary M. Nikolai, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 E-mail: dgustafson@gustafsongluek.com awilliams@gustafsongluek.com rborrelli@gustafsongluek.com mnikolai@gustafsongluek.com -and- Kenneth A. Wexler, Esq. Kara A. Elgersma, Esq. WEXLER WALLACE, LLP 55 West Monroe, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 E-mail: kaw@wexlerwallace.com kae@wexlerwallace.com -and- Simon B. Paris, Esq. Patrick Howard, Esq. SALTZ, MONGELUZZI, & BENDESKY, P.C. 1650 Market Street, 52nd Floor Philadelphia, PA 19103 Telephone: (215) 575-3895 E-mail: sparis@smbb.com phoward@smbb.com BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing ------------------------------------------------------------- Bellring Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that Premier Nutrition Company, LLC, continues to defend the so-called Joint Juice Litigation. In March 2013, a complaint was filed on behalf of a putative, nationwide class of consumers against Premier Nutrition in the U.S. District Court for the Northern District of California seeking monetary damages and injunctive relief. The case asserted that some of Premier Nutrition's advertising claims regarding its Joint Juice line of glucosamine and chondroitin dietary supplements were false and misleading. In April 2016, the district court certified a California-only class of consumers in this lawsuit (California Federal Class Lawsuit). In 2016 and 2017, the lead plaintiff's counsel in the California Federal Class Lawsuit filed ten additional class action complaints in the U.S. District Court for the Northern District of California on behalf of putative classes of consumers under the laws of Connecticut, Florida, Illinois, New Jersey, New Mexico, New York, Maryland, Massachusetts, Michigan and Pennsylvania. These additional complaints contain factual allegations similar to the California Federal Class Lawsuit, also seeking monetary damages and injunctive relief. The New Jersey case was voluntarily dismissed. In April 2018, the district court dismissed the California Federal Class Lawsuit with prejudice. This dismissal was upheld on appeal by the U.S. Court of Appeals for the Ninth Circuit and Plaintiff's petition for an en banc rehearing by the Ninth Circuit was denied. The other complaints remain pending in the U.S. District Court for the Northern District of California, and the court has certified individual state classes in each of those cases. In January 2019, the same lead counsel filed an additional class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging claims similar to the above actions and seeking monetary damages and injunctive relief on behalf of a putative class of California consumers, beginning after the California Federal Class Lawsuit class period. In September 2020, the same lead counsel filed another class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging identical claims and seeking restitution and injunctive relief on behalf of the same putative class of California consumers as the California Federal Class Lawsuit. The Company continues to vigorously defend these cases. The Company does not believe that the resolution of these cases will have a material adverse effect on its financial condition, results of operations or cash flows. Bellring Brands, Inc. manufactures food supplements. The Company produces nutritional items such as protein shakes, powders, and bars. Bellring Brands serves customers in the State of Missouri. The company is based in St. Louis, Missouri. BIT DIGITAL: Hagens Berman Reminds Investors of March 22 Deadline ----------------------------------------------------------------- Hagens Berman urges investors in Bit Digital, Inc. (NASDAQ: BTBT) with significant losses submit your losses now. A securities fraud class action has been filed and certain investors may have valuable claims. Class Period: Dec. 21, 2020 - Jan. 8, 2021 Lead Plaintiff Deadline: Mar. 22, 2021 Visit: www.hbsslaw.com/investor-fraud/BTBT Contact An Attorney Now: BTBT@hbsslaw.com 844-916-0895 Bit Digital, Inc. (BTBT) Securities Fraud Class Action: The complaint alleges that Defendants misled investors about Bit Digital's business operations and prospects by concealing that the company exaggerated its bitcoin mining operation. Investors allegedly began to learn the truth on Jan. 11, 2021, when market analyst J Capital Research issued a scathing report about the company, concluding that Bit Digital operates "a fake crypto currency business" "designed to steal funds from investors." According to J Capital, "[t]he company reported at end Q3 2020 that it was operating 22,869 bitcoin miners in China," but that "is simply not possible" and "[w]e verified with local governments supposedly hosting the BTBT mining operation that there are no bitcoin miners there." In response, the price of Bit Digital shares crashed lower. Most recently, on Feb. 3, 2021 Bit Digital announced its chairwoman (Ping Liu) resigned, its CEO (Min Hu) was terminated, and its Chief Strategy Officer (Hong Yu) resigned. "We're focused on investor losses and proving Bit Digital faked its business by falsely portraying itself as a player in bitcoin mining," said Reed Kathrein, the Hagens Berman partner leading the investigation. If you are a Bit Digital investor or have information that may assist our investigation, click here to discuss your legal rights with Hagens Berman. Whistleblowers: Persons with non-public information regarding Bit Digital should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 844-916-0895 or email BTBT@hbsslaw.com. About Hagens Berman Hagens Berman is a national law firm with nine offices in eight cities around the country and eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. For the latest news visit our newsroom or follow us on Twitter at @classactionlaw.[GN] BIT DIGITAL: Klein Law Reminds Investors of March 22 Deadline ------------------------------------------------------------- The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Bit Digital, Inc. (NASDAQ: BTBT) alleging that the Company violated federal securities laws. Class Period: December 21, 2020 and January 8, 2021 Lead Plaintiff Deadline: March 22, 2021 Learn more about your recoverable losses in BTBT: http://www.kleinstocklaw.com/pslra-1/bit-digital-inc-loss-submission-form?id=12723&from=5 The filed complaint alleges that Bit Digital, Inc. made materially false and/or misleading statements and/or failed to disclose that: (1) that Bit Digital overstated the extent of its a bitcoin mining operation; and (2) 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. Shareholders have until March 22, 2021 to petition the court for lead plaintiff status. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. For additional information about the BTBT lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click the link above. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] BLAND LANDSCAPING: Roldan FLSA Suit Seeks to Certify Foremen Class ------------------------------------------------------------------ In the class action lawsuit captioned as MANUEL ROLDAN, on behalf of himself and all others similarly situated v. BLAND LANDSCAPING COMPANY, INC., Case No. 3:20-cv-00276-RJC-DSC (W.D.N.C.), the Plaintiff asks the Court to enter an order: 1. granting conditional certification of the action as a representative collective action under the Fair Labor Standards Act (FLSA), on behalf of: "the Plaintiff and all other persons similarly situated (individuals employed as Foremen by Defendant at any time since May 13, 2017)" 2. approving the proposed FLSA notice of this action and the consent form in both English and Spanish; 3. providing an updated production of names, last known mailing addresses, alternate addresses, telephone numbers, email addresses, and dates of employment of all putative class members; 4. providing ability to email and/or text message the proposed Notice, along with utilizing regular U.S. Mail; 5. certifying this action as a class action under Rule 23(a) and (b)(3) for the North Carolina Wage and Hour Act claims; and 6. appointing the named Plaintiff Roldan as class representative, and 7. appointing the Law Offices of Gilda A. Hernandez, PLLC as class counsel. The issue, in this case, relates to Bland Landscaping's failure to properly compensate non-exempt Foremen, who perform landscaping work. Specifically, the Defendant's common policies and practices include: requiring plaintiffs arrive at the Defendant's yards approximately 15 minutes earlier than others, but not compensate for such time; deducting one full hour from Foremen's pay; and taking unauthorized deductions from Foremen's wages for unlawful charges. All Foremen are subject to these systemic policies and practices that violate both the Fair Labor Standards Act (FLSA), and the North Carolina Wage and Hour Act (NCWHA). On May 13, 2020, the Plaintiff Roldan filed the Collective/Class Action Complaint, on behalf of himself and all other individuals employed as Foremen by the Defendant. Bland Landscaping is a regional, private equity-backed, Commercial and Estate Landscape Management and Contracting business headquartered in Apex, NC. Since our humble beginnings in 1976, our geographic footprint has grown to span across North Carolina from Charlotte to Wilmington and beyond. A copy of the Court's the Plaintiff's motion to certify class dated Feb. 3, 2020 is available from PacerMonitor.com at https://bit.ly/3adyqLe at no extra charge.[CC] The Plaintiff is represented by: Gilda Adriana Hernandez, Esq. Gilda A. Hernandez, Esq. Charlotte C. Smith, Esq. 1020 Southhill Drive, Ste. 130 Cary, NC 27513 Telephone: (919) 741-8693 Facsimile: (919) 869-1853 E-mail: ghernandez@gildahernandezlaw.com csmith@gildahernandezlaw.com BLOOMSCAPE INC: Williams Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Bloomscape, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Bloomscape, Inc., Case No. 1:21-cv-01266 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Bloomscape -- https://bloomscape.com/ -- is an online plant shopping platform that offers home ready plants and tools for plant care.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal BONOBOS INC: Faces Kemp $5M Suit in Southern District of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Bonobos, Inc. The case is captioned as Kemp et al v. Bonobos, Inc., Case No. 1:21-cv-00854-JMF (S.D.N.Y., Jan. 29, 2021). The suit demands $5 million in damages involving personal property. The case is assigned to the Hon. Judge Jesse M. Furman. Bonobos is an upscale, e-commerce-driven apparel subsidiary of Walmart headquartered in New York City that designs and sells men's clothing. The store has a specific emphasis on the sale of men's suits, trousers, denim, shirts, shorts, swimwear, outerwear and accessories.[BN] The Plaintiffs Daryl Kemp and Bradley Cooper are represented by: Brittany Leanne Brown, Esq. David Jude George, Esq. Lori Gwen Feldman, Esq. GEORGE GESTEN MCDONALD PLLC 9897 Lake Worth Road, Ste. 302 Lake Worth, FL 33467 Telephone: (561) 232-6002 E-mail: bbrown@4-justice.com dgeorge@4-justice.com lfeldman@4-justice.com BP PLC: Stikeman Elliott Attorney Discusses Class Action Ruling --------------------------------------------------------------- Alexandra Urbanski, Esq. -- aurbanski@stikeman.com -- of Stikeman Elliott LLP, in an article for Mondaq, reports that the Court of Appeal for Ontario's recent decision in Kaynes v. BP p.l.c., 2021 ONCA 36 ("Kaynes") provides guidance on when a claim for fraudulent misrepresentation is discoverable in a securities class action and when a claim can be dismissed as statute-barred on a Rule 21 motion. The decision is the last in a series of attempts made by the plaintiff to commence a class proceeding against British Petroleum ("BP") in Ontario, following the April 2010 explosion of the BP oil rig Deepwater Horizon in the Gulf of Mexico. Background The plaintiff Kaynes was a resident of Alberta who on or before August 2008 purchased BP shares on the New York Stock Exchange. Kaynes alleged that BP made numerous misrepresentations in its securities filings about its operational safety and its ability to respond to an oil disaster, which had artificially inflated BP's stock price. In the wake of the Deepwater Horizon explosion, Kaynes alleged that BP made several revisions to its disclosure documents correcting the misrepresentations it had made over the previous years, which caused BP's share price to plummet. In November 2012, Kaynes filed a statement of claim in Ontario alleging the statutory cause of action for secondary market misrepresentation provided for in s.138.3 of Ontario's Securities Act (the "Act") and common law negligent misrepresentation (this allegation was withdrawn in August 2013). BP challenged Ontario's jurisdiction over this matter, alleging that there was no real and substantial connection between Ontario and the claims of Canadian residents who purchased their shares on foreign exchanges. BP's jurisdictional challenge was initially dismissed, but the Court of Appeal for Ontario allowed BP's appeal on the basis of forum non conveniens and permitted the proposed class action to proceed only on behalf of those plaintiffs who had purchased BP shares on the Toronto Stock Exchange. The claim of Canadians who purchased their shares on foreign exchanges was stayed. After bringing a successful motion to lift the stay of his Canadian proceedings in Ontario, in June 2017, Kaynes delivered an amended statement of claim. This amended claim advanced statutory misrepresentation claims solely on the basis of the Act. It added new misrepresentation claims, and added for the first time, allegations that BP knew that its misrepresentations were false when it made them. BP succeeded in challenging the timeliness of many of the misrepresentation claims, which were held to be statute-barred as the three-year limitation period under the Act had lapsed. This decision had the effect of significantly reducing the scope of the proposed class period (from 1,080 days to 55 days). In September 2019, Kaynes delivered another amended statement of claim that for the first time expressly advanced a cause of action for fraudulent misrepresentation. Decision of the Motion Judge BP brought a motion under Rule 21.01(1)(a)[1] of the Ontario Rules of Civil Procedure for an order declaring that Kaynes' fraudulent misrepresentation claims were statute-barred pursuant to the Ontario Limitations Act, 2002. Kaynes resisted the motion on two bases: (i) that it was not plain and obvious that his claim was statute-barred; and (ii) a limitations issue cannot be determined on a Rule 21 motion when discoverability is in issue. The motion judge granted BP's motion and dismissed the action, holding that all common law misrepresentation claims, whether negligent or fraudulent, were discovered when BP made corrective disclosures between March and June 2010. The limitation period for this cause of action expired in June of 2012, and therefore, the fraudulent misrepresentation claims advanced by Kaynes in 2019 were out of time. Alternatively, the motion judge concluded that Kaynes would have discovered BP's fraudulent intent by 2010 from the existence of U.S. litigation against BP, which advanced claims based on scienter (an intent to deceive, manipulate or defraud) -- that is, BP had fraudulently misrepresented its securities to secondary market purchasers.[2] While the motion judge acknowledged that a court should only rule on a limitation issue before a statement of defence is filed in the rarest of circumstances, the motion judge was satisfied this was such a case as it was "plain and obvious" that no additional facts could be asserted that would alter the conclusion that the limitation period had expired. Kaynes appealed the motion judge's decision. Decision of the Court of Appeal for Ontario The Court of Appeal held that the motion judge erred in his discovery analysis and particularly in his finding that the claim for fraudulent misrepresentation was discovered when BP admitted to making the misrepresentations, rather than when BP admitted to knowingly making the misrepresentations. The timing of "discoverability" Under the Limitations Act, 2002, a "claim" is discovered when the person with the claim first knew or ought to have known "that the injury, loss or damage was caused by or contributed to by an act or omission" (among certain other criteria). As a claim necessarily involves a legal remedy, the act or omission that must be discovered is one that will give rise to a legal remedy, i.e., a cause of action. Therefore, the Court reasoned, in the case of a fraudulent misrepresentation the act or omission that must have been discovered is a misrepresentation "made with knowledge that the representation was false, an absence of belief in its truth or recklessness as to its truth". To define "discovery" of such a claim in a way that omitted this "knowledge" requirement would make no sense, as it would require a person to commence a fraudulent misrepresentation action without the legal basis for doing so, in order to preserve the limitation period. The Court's holding Ultimately, the Court held that Kaynes had not discovered the fraudulent misrepresentation claim in 2010 as the motion judge found, but found that Kaynes was still out of time on the basis that, the plaintiff's pleadings conceded that July 2015 was the last date BP's fraudulent conduct could have been discovered. As this July 2015 date was not in dispute, the Court held it is plain and obvious that Kaynes' 2019 fraudulent misrepresentation claim was out of time and statute barred. The Court further held that the motion judge erred in relying on pleadings from the U.S. proceedings to establish discoverability of fraudulent circumstances. While the scienter pleading means that the plaintiff alleges knowing falsehoods, the Court noted that a pleading on its face is not determinative of the knowledge issue and a factual inquiry was required. The Court agreed with the motion judge that the limitations issue could be determined on a Rule 21 motion. While Rule 21.01(1)(a) refers to the determination of a question of law, the Court held that where the facts regarding discovery of a claim are undisputed so that the determination is "plain and obvious", then whether the action is statute-barred is considered a question of law that can be determined on a Rule 21 motion. Key Take-Aways Kaynes makes it clear that a limitation period for fraudulent misrepresentation commences when a claimant is able to discover that a misrepresentation was made "with knowledge that the representation was false, an absence of belief in its truth or recklessness as to its truth"; and that a Rule 21 motion may be an effective way to dismiss statute-barred claims provided the facts regarding discovery of the claim are undisputed. From a practical perspective, this case is a good reminder about the importance of observing limitation periods in securities class actions and how defendants can rely on limitation period defenses to substantially limit plaintiffs' claims. Footnotes 1 Rule 21.01(1)(a) provides that "A party may move before a judge, for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs." 2 In the U.S., investors rely on SEC Rule 10b-5, 17 C.F.R. s. 240. 10b-5 under s.10(b) of the Securities Exchange Act of 1934, to bring actions for misrepresentation in continuous disclosure. A plaintiff in the U.S. must plead and prove scienter, namely an intent to deceive, manipulate or defraud. [GN] CAPTIVA MVP: 11th Cir. Affirms Dismissal of Tsao Data Breach Suit ----------------------------------------------------------------- The United States Court of Appeals for the Eleventh Circuit affirms the dismissal without prejudice of the lawsuit entitled I TAN TSAO, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. CAPTIVA MVP RESTAURANT PARTNERS, LLC, A Florida Limited Liability Company doing business as PDQ, Defendant-Appellee, Case No. 18-14959 (11th Cir.). PDQ is a group of fast casual restaurants that sells chicken tenders, chicken nuggets, salads, and sandwiches. Like most restaurants today, PDQ accepts payment through a point of sale system where customers can insert credit or debit cards to pay for their meal. When customers pay with a debit or credit card, PDQ collects some data from the cards, including the cardholder's name, the account number, the card's expiration date, the card verification value code ("CVV"), and PIN data for debit cards. PDQ then stores this data in its point of sale system and transmits the information to a third party for processing and for completion of the payment. Beginning on May 19, 2017, a hacker exploited PDQ's point of sale system and gained access to customers' personal data--the credit and debit card information--through an outside vendor's remote connection tool. PDQ later became aware of the breach, and on June 22, 2018, it posted a notice to customers that it had "been the target of a cyber-attack." The notice stated that "all PDQ locations in operation" between May 19, 2017, and April 20, 2018, were affected by the attack, and the notice listed the customers' personal information that "may have been accessed": cardholder names, credit card numbers, card expiration dates, and CVVs. In October 2017--during the data breach period--Plaintiff Tsao made at least two food purchases at a PDQ restaurant in Pinellas, Florida, using two different cards. Because Tsao made purchases at PDQ during the breach period, the credit card data from these cards may have been accessed by hackers. So, when Tsao learned of the possible breach in 2018, he contacted both Chase and Wells Fargo and cancelled his cards. Less than two weeks after PDQ's announcement of the cyber-attack, Tsao filed a class action complaint (the "Complaint") in the Middle District of Florida on behalf of a nationwide class, or alternatively, a separate Florida class. The Complaint lists a variety of injuries that PDQ customers allegedly suffered as a result of the cyber-attack, including "theft of their personal financial information," "unauthorized charges on their debit and credit card accounts," and "ascertainable losses in the form of the loss of cash back or other benefits." Based on these alleged injuries, the Complaint claims that PDQ (1) breached an implied contract by failing to safeguard customers' credit card data (Count I); (2) was negligent in failing to provide adequate security for the credit card data (Count II); (3) was per se negligent because PDQ violated Section 5 of the Federal Trade Commission Act (15 U.S.C. Section 45), which prohibits unfair practices that affect commerce (Count III); (4) was unjustly enriched when it received payments from the customers but failed to provide those customers with adequate data security (Count IV); and (5) violated the Florida Unfair and Deceptive Trade Practices Act by failing to, among other things, maintain "adequate data security practices" (Count VI). The Complaint additionally seeks a declaratory judgment stating that "PDQ's existing data security measures do not comply with its contractual obligations and duties of care" and that PDQ, in order to comply with those obligations, is required to implement and maintain a variety of security measures (Count V). PDQ moved to dismiss the Complaint on August 28, 2018. It argued that the Complaint failed to state a claim under Federal Rules of Civil Procedure 12(b)(1), (b)(6), and (b)(7) "for failure to satisfy Article III standing, to state a claim upon which relief can be granted, and/or for failure to join indispensable parties." On the standing issue, PDQ emphasized that, although customer data may have been "compromised" or "exposed" during the cyber-attack, Tsao failed to identify "a single incident involving an actual misuse of the credit card information, much less any misuse causing any of the customers any actual injury." Instead, PDQ argued, Tsao's claims were "premised on a fear that his credit card information may be misused at some point in the future," and since he cancelled his cards before any misuse occurred, he was foreclosed from alleging damages. And even if Tsao did incur some out-of-pocket expenses to mitigate the risk of misuse, PDQ claimed that such "manufactured standing" was not enough to satisfy Article III. On November 1, 2018, the District Court dismissed Tsao's Complaint without prejudice for lack of standing. The Court noted that although Tsao claimed that his private data was "compromised" and "exposed" to criminals, not once did he allege "that his credit cards were used in any way by a thief or that his identity was stolen." Nor did Tsao identify "a single specific, concrete injury in fact that he or anyone else suffered as a result of any misuse of customer credit card information." These conclusory allegations of harm, the Court found, were speculative at best, and mere "evidence of a data breach, without more, was insufficient to satisfy injury in fact under Article III standing." The appeal followed. Tsao's briefing mostly retreads the arguments he made--that he and the class are at an elevated risk of future identity theft and that he lost cash back and rewards point, time, and account access--in an effort to satisfy Article III's standing requirement. But after a careful review of the record and with the benefit of oral argument, the Appellate Court affirms the District Court's dismissal for lack of standing. Mr. Tsao's arguments focus on two general theories of standing. First, he argues that he could suffer future injury from misuse of the personal information disclosed during the cyber-attack (though he has not yet), and this risk of misuse alone is enough to satisfy the standing requirement. Then, he argues that he has already suffered some "concrete, particularized" mitigation injuries--for example, lost time, lost rewards points, and loss of access to accounts--that are sufficient to confer standing. The Appellate Court rejects both of these theories of standing. In support of his theory that the PDQ hack may result in future identity theft, Tsao cites to the June 2007 United States Government Accountability Office (GAO) report on data breaches. The 2007 GAO Report states that "identity theft" includes "many types of criminal activities, including fraud on existing accounts--such as unauthorized use of a stolen credit card number--or fraudulent creation of new accounts--such as using stolen data to open a credit card account in someone else's name," (citing U.S. Gov't Accountability Off., GAO-07-737, Personal Information: Data Breaches are Frequent, but Evidence of Resulting Identity Theft is Limited; However, the Full Extent is Unknown (2007) (hereinafter "GAO Report")). That report points out, however, that compromised credit or debit card information, without additional personal identifying information, "generally cannot be used alone to open unauthorized new accounts." Circuit Judge Gerald Bard Tjoflat, writing for the Panel, opines that the Eleventh Circuit, like the Eighth Circuit in In re SuperValu, Inc., 870 F.3d 763, 770-72 (8th Cir. 2017), believes the GAO Report actually demonstrates why there is no "substantial risk" of identity theft here. Tsao has not alleged that social security numbers, birth dates, or driver's license numbers were compromised in the PDQ breach, and the card information allegedly accessed by the PDQ hackers "generally cannot be used alone to open unauthorized new accounts." So, based on the GAO Report, it is unlikely that the information allegedly stolen in the PDQ breach, standing alone, raises a substantial risk of identity theft. This leaves with the risk that the hackers, if they accessed and stole Tsao's credit card information, could make unauthorized purchases with his cards or drain his accounts, Judge Tjoflat notes. But again, the GAO Report suggests that most data breaches have not resulted in detected incidents of fraud on existing accounts. Indeed, the GAO Report reviewed the 24 largest data breaches between January 2000 and June 2005 and found that only 4 of the 24 breaches (roughly 16.667%) resulted in some form of identity theft, and only 3 resulted in account theft or fraud (12.5%). Given the low rate of account theft, the GAO Report simply does not support the conclusion that the breach here presented a "substantial risk" that Tsao would suffer unauthorized charges on his cards or account draining, Judge Tjoflat holds. According to Judge Tjoflat, three considerations color this conclusion. First, the Appellate Court recently held in Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 931 (11th Cir. 2020) (en banc) that conclusory allegations of an "elevated risk of identity theft"--or, as Tsao puts it, a "continuing increased risk" of identity theft--"are simply not enough" to confer standing. Second, Tsao offers only vague, conclusory allegations that members of the class have suffered any actual misuse of their personal data--in th case, "unauthorized charges." Third, Tsao immediately cancelled his credit cards following disclosure of the PDQ breach, effectively eliminating the risk of credit card fraud in the future. In short, Tsao has not alleged either that the PDQ data breach placed him at a "substantial risk" of future identity theft or that identity theft was "certainly impending," Judge Tjoflat holds. Evidence of a mere data breach does not, standing alone, satisfy the requirements of Article III standing. It follows that Tsao does not have standing here based on an "increased risk" of identity theft, Judge Tjoflat adds. The Appellate Court turns now to Tsao's claims that he has suffered actual, present injuries in his efforts to mitigate the risk of identity theft caused by the data breach. Following notice of the PDQ data breach, Tsao notified Wells Fargo and Chase to cancel his credit cards and, in his words, "proactively t[ook] steps to mitigate the damage done by PDQ's mistakes." As a result of these mitigation efforts, Tsao claims that he has suffered three distinct injuries: (1) lost opportunity to accrue cash back or rewards points on his cancelled credit cards, (2) costs associated with detection and prevention of identity theft in taking the time and effort to cancel and replace his credit cards; and (3) restricted account access to his preferred payment cards. Judge Tjoflat points out that Tsao's mitigation efforts are not enough to confer standing. The mitigation costs Tsao alleges are inextricably tied to his perception of the actual risk of identity theft following the PDQ data breach, Judge Tjoflat notes. Tsao, by his own admission, voluntarily cancelled his credit cards, and the three types of harm he has identified flowed from that cancellation. By cancelling his cards, he voluntarily forwent the opportunity to accrue cash back or rewards points on those cards. By cancelling his cards, he voluntarily restricted access to his preferred payment cards. And by cancelling his cards, he voluntarily spent time safeguarding his accounts. Judge Tjoflat points out that Tsao cannot conjure standing here by inflicting injuries on himself to avoid an insubstantial, non-imminent risk of identity theft. To hold otherwise would allow "an enterprising plaintiff . . . to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear," citing Clapper, 568 U.S. at 416, 133 S. Ct. at 1151. The law does not permit such a result, Judge Tjoflat states. The Panel holds that Tsao lacks Article III standing because he cannot demonstrate that there is a substantial risk of future identity theft--or that identity theft is certainly impending--and because he cannot manufacture standing by incurring costs in anticipation of non-imminent harm. Accordingly, the Appellate Court affirms the District Court's order dismissing the case without prejudice for lack of standing. Adalberto Jose Jordan, Circuit Judge, concurring in the judgment. A full-text copy of the Court's Opinion dated Feb. 4, 2021, is available at https://tinyurl.com/4qspxeko from Leagle.com. CARDINAL HEALTH: Bid to Junk Generic Pharmaceutical Suit Pending ---------------------------------------------------------------- Cardinal Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the motion to dismiss filed in the class action suit initiated by indirect purchasers of generic drugs, such as hospitals and retail pharmacies, is pending. In December 2019, pharmaceutical distributors including the company were added as defendants in a civil class action lawsuit filed by indirect purchasers of generic drugs, such as hospitals and retail pharmacies. The indirect purchaser case is part of a multidistrict litigation consisting of multiple individual class action matters consolidated in the Eastern District of Pennsylvania. The indirect purchaser plaintiffs allege that pharmaceutical distributors encouraged manufacturers to increase prices, provided anti-competitive pricing information to manufacturers and improperly engaged in customer allocation. Cardinal said, "We have filed a motion to dismiss the complaints and we intend to vigorously defend ourselves." No further updates were provided in the Company's SEC report. Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio. CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending -------------------------------------------------------------- Cardinal Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the motion to dismiss filed in the purported class action suit headed by 1199 SEIU Health Care Employees Pension Fund, is pending. In August 2019, the Louisiana Sheriffs' Pension & Relief Fund filed a purported class action complaint against Cardinal Health and certain current and former officers and employees in the United States District Court for the Southern District of Ohio purportedly on behalf of all purchasers of the company's common shares between March 2015 and May 2018. In June 2020, the court appointed 1199 SEIU Health Care Employees Pension Fund as lead plaintiff and a consolidated amended complaint was filed in September 2020. The amended complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 by making misrepresentations and omissions related to the acquisition integration of the Cordis business and inventory and supply chain problems within the Cordis business, and seeks to recover unspecified damages and equitable relief for the alleged misstatements and omissions. The complaint also alleges that one of the individual defendants violated Section 20A of the Exchange Act because he sold shares of Cardinal Health stock during the time period. In November 2020, the company filed a motion to dismiss the amended complaint. Cardinal said, "We believe that the claims asserted in this complaint are without merit and intend to vigorously defend against them." Cardinal Health, Inc. operates as an integrated healthcare services and products company in the United States and internationally. It provides medical products and pharmaceuticals, and solutions that enhance supply chain efficiency for hospitals, healthcare systems, pharmacies, ambulatory surgery centers, clinical laboratories, and physician offices. Cardinal Health, Inc. was founded in 1979 and is headquartered in Dublin, Ohio CBSC INC: Deadline for Class Status Bid Filing Extended to April 2 ------------------------------------------------------------------ In the class action lawsuit captioned as Angeles v. CBSC, Inc. et al., Case No. 5:20-cv-01540 (N.D. Ohio), the Hon. Judge Carmen E. Henderson entered an order granting motion to extend deadlines as follows: 1. The class certification deadline is now April 2, 2021; 2. The Plaintiff's expert disclosure report (if any) is due on or by April 2, 2021; 3. The Defendant's expert disclosure report (if any) is due on or by May 3, 2021; 4. All discovery is to be completed on or by June 2, 2021; 5. Dispositive motions are to be filed on or by June 15, 2021; and 6. The upcoming status teleconference, which is scheduled for February 16, 2021 at 11:30 AM, will proceed as scheduled to discuss the status of discovery and Plaintiffs counsels failure to respond to the Courts electronic communication dated January 26, 2021. The suit alleges violation of the Fair Debt Collection Practices Act.[CC] CENTER FOR ADDICTIVE PROBLEMS: Chambers Seeks OT Pay Under FLSA --------------------------------------------------------------- KEYWANDA CHAMBERS on behalf of herself, and all other plaintiffs similarly situated, known and unknown v. CENTER FOR ADDICTIVE PROBLEMS, INC., AN ILLINOIS CORPORATION, Case No. 1:21-cv-00635 (N.D. Ill., Feb. 2, 2021) seeks to recover overtime pay under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Chicago Minimum Wage Ordinance. The Plaintiff contends that she was compensated on an hourly basis and on a regular basis worked over 40 hours per week without receiving overtime pay for such hours from the Defendant. Rather, the Defendant allegedly paid her only her straight time hourly rate for all hours worked, including overtime-eligible hours worked in excess of 40 in individual work weeks. The Plaintiff is a former employee who worked for the Defendant as a Licensed Nurse Practitioner (LPN) from June 2013 until December 2020. Chambers performed nursing duties including distribution of certain medications, administering shots, taking and recording the vital signs of patients, etc. The Defendant provides addiction treatment, recovery, therapy and counseling services at two locations in the Chicagoland area, located at 609 N. Wells in Chicago, Illinois and 4954 Main Street in Downers Grove, Illinois.[BN] The Plaintiff is represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 401 Chicago, IL 60604 Telephone: (312) 853-1450 CERTAIN UNDERWRITERS: Denial of Class Certification Bid Sought -------------------------------------------------------------- In the class action lawsuit captioned as STEPHEN G. AQUILINA and LUCINA J. AQUILINA, Individually and on Behalf of All Others Similarly Situated; and DONNA J. CORRIGAN and TODD L. CORRIGAN, Individually and on Behalf of All Others Similarly Situated, v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, et al., Case No. 00496-ACK-KJM (D. Haw.), the Defendants Borisoff Insurance Services, Inc. and Specialty Program Group, LLC ask the Court for an order to deny certification of the Plaintiffs' proposed class in their First Amended Complaint. This lawsuit arises out of the Plaintiffs' purchase of homeowners' insurance from Certain Underwriters at Lloyd's of London. The Plaintiffs claim they were somehow damaged because they bought policies with a lava exclusion, despite being paid for losses occurring during the 2018 Kilauea eruption and otherwise benefitting from having insurance in the years prior to the eruption. The Plaintiffs are also involved in two of the many state-court lawsuits alleging similar claims. Nevertheless, they seek to have this lawsuit certified as a class action. Their request for class action should be denied and this motion for class decertification granted, says the Defendants. The Defendants include LLOYD'S SYNDICATE No. 2003; LLOYD'S SYNDICATE No. 318; LLOYD'S SYNDICATE No. 4020; LLOYD'S SYNDICATE No. 2121; LLOYD'S SYNDICATE No. 2007; LLOYD'S SYNDICATE No. 1183; LLOYD'S SYNDICATE No. 1729; BORISOFF INSURANCE SERVICES, INC. d/b/a MONARCH E&S INSURANCE SERVICES; SPECIALTY PROGRAM GROUP, LLC d/b/a SPG INSURANCE SOLUTIONS, LLC.; ALOHA INSURANCE SERVICES, INC.; ILIKEA LLC d/b/a MOA INSURANCE SERVICES HAWAI‘I; and DOES 1- 100. A copy of the Defendant' motion dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/3b1ECoq at no extra charge.[CC] Attorneys for the Defendants Borisoff Insurance and Specialty Program Group, are: Lennes N. Omuro, Esq. Edmund K. Saffery, Esq. Wayne R. Wagner, Esq. Forest B. Jenkins, Esq. GOODSILL ANDERSON QUINN & STIFEL A LIMITED LIABILITY LAW PARTNERSHIP LLP First Hawaiian Center, Suite 1600 999 Bishop Street Honolulu, HI 96813 Telephone: (808) 547-5600 Facsimile: (808) 547-5880 E-mail: lomuro@goodsill.com esaffery@goodsill.com wwagner@goodsill.com fjenkins@goodsill.com - and - Kristi W. Dean, Esq. STONE|DEAN, LLP 21600 Oxnard Street Upper Lobby, Suite 200 Woodland Hills, CA 91367 CHOBANI LLC: Yogurt Doesn't Contain Madagascar Vanilla, Suit Says ----------------------------------------------------------------- Susan Glazebrook, individually and on behalf of all others similarly situated v. Chobani, LLC, Case No. 1:21-cv-10181 (D. Mass., Feb. 2, 2021) seeks to remedy the Defendant's deceptive labeling, marketing, and sale of its "Chobani Less Sugar Greek Yogurt Madagascar Vanilla & Cinnamon" ("Product"). According to the complaint, the Defendant has misled the Plaintiff and reasonable consumers to believe the Product contains "Madagascar Vanilla" as the ingredient that provides for the Product's characterizing vanilla flavor. In reality, the Product contains "natural flavors," as the ingredient that provides for the Product's characterizing vanilla flavor, the suit says. The Plaintiff seeks damages, injunctive relief, and a jury trial for Defendant's deceptive and misleading actions that have unjustly enriched the the Defendant. The Plaintiff is currently, and has been throughout the Class Period, a resident of Saugus, Massachusetts. During the Class Period, she purchased the Defendant's Product on several occasions based on the representation and reasonable belief that the Product contained Madagascar Vanilla. Chobani is an American food company specializing in strained yogurt. The company was founded in 2005 by Hamdi Ulukaya who had bought a plant in the town of South Edmeston, New York, that was being closed by Kraft Foods.[BN] The Plaintiff is represented by: John T. Longo, Esq. LAW OFFICE OF JOHN T. LONGO 177 Huntington Avenue, 17th Fl., Suite 5 Boston, MA 02115 Telephone: (617) 863-7550 E-mail: jtlongo@jtlongolaw.com - and - Peter N. Wasylyk, Esq. LAW OFFICES OF PETER N. WASYLYK 1307 Chalkstone Avenue Providence, RI 02908 Telephone: (401) 831-7730 Facsimile: (401) 861-6064 E-mail: pnwlaw@aol.coms CHOWBUS INC: Flores Suit Seeks Minimum & OT Wages Under FLSA, NYLL ------------------------------------------------------------------ ARMANDO FRANCISCO FLORES, NOE ESCAMILLA VILLANO, and MARIO CLEMENTE, individually and on behalf of others similarly situated v. CHOWBUS INC. (D/B/A CHOWBUS), FANTUAN GROUP, INC. (D/B/A CHOWBUS), CHOWBUS GROCERY LLC (D/B/A CHOWBUS), CHEN PU, EDDIE LOU, and LINXIN WEN, Case No. 1:21-cv-00970 (S.D.N.Y., Feb. 2, 2021) seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. According to the complaint, the Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay them appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, Defendants failed to pay them the required "spread of hours" pay for any day in which they had to work over 10 hours a day, the suit says. The Plaintiffs were employed as delivery workers at the Defendants' delivery application. The Defendants own, operate, or control a food service delivery application, located at 55 E Jackson Blvd., Ste. 450, Chicago, Illinois.[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com CIRCLE K STORES: Pettersen CFAL Suit Removed to S.D. California --------------------------------------------------------------- The case styled WILLIAM D. PETTERSEN, individually and on behalf of all others similarly situated v. CIRCLE K STORES INC. and DOES 1-10, Case No. 37-2020-00044765-CU-BT-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California on February 8, 2021. The Clerk of Court for the Southern District of California assigned Case No. 3:21-cv-00237-H-BGS to the proceeding. The case arises from the Defendant's alleged false or misleading advertising under the California False Advertising Law and unfair competition within the meaning of the California Business & Professions Code. Circle K Stores Inc. is an international chain of convenience stores, headquartered in Tempe, Arizona. [BN] The Defendant is represented by: Tyler R. Andrews, Esq. GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 Irvine, CA 92612-4410 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 E-mail: andrewst@gtlaw.com CLOVER HEALTH: Faces Bond Suit Over 12.3% Drop in Share Price ------------------------------------------------------------- TIMOTHY BOND, individually and on behalf of all others similarly situated, Plaintiff v. CLOVER HEALTH INVESTMENTS, CORP.; CHAMATH PALIHAPITIYA; VIVEK GARIPALLI; and ANDREW TOY, Defendants, Case No. 3:21-cv-00096 (M.D. Tenn., Feb. 5, 2021) is a federal securities class action on behalf of all investors who purchased or otherwise acquired Clover Health Investments, Corp. ("Clover" or the "Company") common stock between October 6, 2020 and February 3, 2021, inclusive (the "Class Period"), seeking remedies under the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business. Specifically, the Defendants made false and misleading statements and failed to disclose that: (i) Clover was the recipient of a Civil Investigative Demand from the DOJ; (ii) much of Clover's sales are driven by a major related party deal that Clover not only failed to disclose but took active steps to conceal; (iii) Clover's subsidiary Seek Insurance failed to disclose its relationship with Clover and misled consumers as to its purported independence; (iv) Clover's software was in fact rudimentary; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. The complaint further states that shares of Clover common stock plummeted from their February 3, 2021 closing price of $13.95 per share to just $12.23 per share on February 4, 2021, representing a one day drop of approximately 12.3%. This represents a loss of approximately $700 million in market capitalization. Moreover, shares traded as low as $11.86 per share intraday on February 4, 2021, the suit says. Clover Health Investment, Corp. provides insurance services. The Company offers hospital, medical, and private insurance services. [BN] The Plaintiff is represented by: J. Gerard Stranch, IV, Esq. Benjamin A Gastel, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com beng@bjsfirm.com -and- Jeffrey C. Block, Esq. Jacob A. Walker, Esq. Stephen J. Teti, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 Facsimile: (617) 507-6020 E-mail: jeff@blockleviton.com jake@blockleviton.com steti@blockleviton.com CLOVER HEALTH: Rosen Law Firm Reminds Investors of April 6 Deadline ------------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 8 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Clover Health Investments, Corp. f/k/a Social Capital Hedosophia Holdings Corp. III (NASDAQ: CLOV, CLOVW) (NYSE: IPOC) who: (1) purchased or otherwise acquired publicly traded Clover securities between October 6, 2020 and February 4, 2021, inclusive (the "Class Period"); and/or (2) purchased or otherwise acquired Clover securities pursuant or traceable to the registration statement and prospectus issued in connection with the December 2020 Merger of Clover and Social Capital III. If you wish to serve as lead plaintiff, you must move the Court no later than April 6, 2021. SO WHAT: If you purchased Clover securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Clover class action, go to http://www.rosenlegal.com/cases-register-2030.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. If you wish to serve as lead plaintiff, you must move the Court no later than April 6, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. 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 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020 founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period and in the registration statement made false and/or misleading statements and/or failed to disclose that: (1) Clover's Clover Assistant platform was under active investigation by the Department of Justice ("DOJ") for at least 12 issues ranging from kickbacks to marketing practices to undisclosed third-party deals; (2) the DOJ's investigation presented an existential risk to the Company, since it derives most of its revenues from Medicare; (3) Clover's sales were driven by a major undisclosed related party deal and misleading marketing targeting the elderly, not its purported "best-in-class" technology; (4) a significant portion of Clover's sales were by way of an undisclosed relationship between Clover and an outside brokerage firm controlled by Clover's Head of Sales; and (5) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Clover class action, go to http://www.rosenlegal.com/cases-register-2030.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select 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. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] CLOVER HEALTH: Schall Law Firm Reminds of April 6 Deadline ---------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, on Feb. 8 announced the filing of a class action lawsuit against Clover Health Investments, Corp. f/k/a Social Capital Hedosophia Holdings Corp. III ("Clover" or "the Company") (NASDAQ: CLOV, CLOVW) violations of the federal securities laws. Investors who purchased or otherwise acquired publicly traded Clover securities between October 6, 2020 and February 4, 2021, inclusive (the "Class Period"); and/or purchased or otherwise acquired Clover securities pursuant or traceable to the registration statement and prospectus issued in connection with the December 2020 Merger of Clover and Social Capital III, are encouraged to contact the firm before April 6, 2021. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Clover was the subject of an active DOJ investigation of at least 12 issues including kickbacks and deceptive marketing. The investigation represented a major threat to the Company's future due to its dependence on Medicare for revenue. The Company's sales were not driven by its "best-in-class" technology as it touted, but rather by misleading marketing practices aimed at senior citizens. A considerable portion of the Company's sales were derived from an undisclosed relationship with a brokerage firm controlled by the Clover's head of sales. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Clover, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] CONTINENTAL INTERMODAL: Hubbard Suit Seeks OT Wages Under NMMWA --------------------------------------------------------------- MARCUS HUBBARD and NATHANIEL EVANS v. CONTINENTAL INTERMODAL GROUP - TRUCKING LLC, Case No. 6:21-cv-00086 (D.N.M., Feb. 2, 2021) is brought by the Plaintiffs and other similarly non-exempt truck drivers seeking to recover unpaid overtime wages and other damages under the New Mexico Minimum Wage Act (NMMWA). According to the complaint, the Defendant has employed the Plaintiffs and other non-exempt truck drivers to haul necessary oil field materials, including sand to customer well sites throughout New Mexico over the past three years, but failed to properly pay them for overtime hours worked at the legally required rate in violation of the NMMWA. The Defendant is a logistics provider offering transloading, inventory management, transportation, and storage solutions to customers in the oil and gas industry. Specifically, the Defendant provides "last mile" services to oil field customers, delivering necessary oil field materials to the customers’ well site and providing services and equipment for the management and storage of materials on-site once delivered. Mr. Hubbard is an individual residing in Arkansas. He was employed by the Defendant for from April 2019 to May 2020. The Plaintiff worked for the Defendant as a truck driver in the State of New Mexico within the three years preceding the filing of this lawsuit. Mr. Evans is an individual residing in Louisiana. He was employed by Defendants from April of 2019 through August of 2019. The Plaintiff worked for the Defendant as a truck driver in the State of New Mexico within the three years preceding the filing of this lawsuit.[BN] The Plaintiff is represented by: Linda G. Hemphill, Esq. Leigh Messerer, Esq. THE HEMPHILL FIRM, P.C. P.O. Box 33136 Santa Fe, NM 87594 Telephone: (505) 986-8515 E-mail: linda@hemphillfirm.com leigh@hemphillfirm.com - and - Benjamin W. Allen, Esq. Casey T. Wallace, Esq. WALLACE & ALLEN, LLP 440 Louisiana, Suite 1500 Houston, TX 77002 Telephone: (713) 224-1744 Facsimile: (713) 227-0104 E-mail: ballen@wallaceallen.com cwallace@wallaceallen.com CORAL SPRINGS: Snarski TCPA Suit Removed to S.D. Florida -------------------------------------------------------- The case captioned as Matthew Snarski, individually and on behalf of all others similarly situated v. Coral Springs KGB, Inc., Case No. CACE-21-0000484 was removed from the 17th Judicial Circuit, Broward County, Florida, to the U.S. District Court for the Southern District of Florida on Feb. 11, 2021. The District Court Clerk assigned Case No. 0:21-cv-60338-JIC to the proceeding. The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Coral Springs KGB, Inc. -- http://www.coralspringsautomall.com/-- retails automobiles and accessories.[BN] The Plaintiff is represented by: Jibrael Jarallah Said Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th St., 17th Floor Fort Lauderdale, FL 33301 Phone: (954) 907-1136 Email: jibrael@jibraellaw.com - and - Manuel Santiago Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd. Ste 1400 Fort Lauderdale, FL 33394 Phone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com The Defendant is represented by: Jeffrey Jordan Wilcox, Esq. HILL WARD HENDERSON 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 Phone: (813) 222-8725 Email: jwilcox@hwhlaw.com COSTCO WHOLESALE: Cohen Suit Removed From State Court to C.D. Cal. ------------------------------------------------------------------ The class action lawsuit captioned as NIR COHEN, individually and on behalf of all others similarly situated, v. COSTCO WHOLESALE CORPORATION, a Washington corporation; ROWLAND AIR, INC., a California corporation; and DOES 1 through 100, inclusive, Case No. 20STCV49155 (Filed Dec. 24, 2020), was removed from the Superior Court of the State of California for the County of Los Angeles, to the United States District Court for the Central District of California on Jan. 29, 2021. The complaint alleges causes of action against the Defendants including Violation of California Business and Professions Code, Section 7031(b); Unfair Business Practices Pursuant to California Business and Professions Code, Section 17200, et seq.; and False and Misleading Advertising Pursuant to California Business and Professions Code. The Plaintiff alleges that on November 12, 2020, he responded to Costco's offer for home improvement work. The Plaintiff contends that Costco was unlicensed when the home improvement work was performed. A review of Costco's business records reflects that the home improvement work on the Plaintiff's property was performed on December 8, 2020. While Costco denies the Plaintiff's allegations that it did not have a valid contractor license, presuming only for the purposes of removal that Costco was unlicensed during this timeframe, Costco received payment for contracting services from 2,061 individuals within the state of California, the suit says. Costco Wholesale is an American multinational corporation which operates a chain of membership-only warehouse clubs. Rowland Air provides a full range of heating and air conditioning services in Santa Clarita, Valencia CA, Lancaster, Palmdale, and San Fernando Valley.[BN] The Defendant is represented by: Gayle M. Athanacio, Esq. Cody A. DeCamp, Esq ROGERS JOSEPH O'DONNELL 311 California Street San Francisco, CA 94104 Telephone: (415) 956 2828 Facsimile: (415) 956 6457 E-mail: gathanacio@rjo.com cdecamp@rjo.com CULLEN/FROST: Class Suits Over PPP Loan Agent Fees Dismissed ------------------------------------------------------------ Cullen/Frost Bankers, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 5, 2021, for the fiscal year ended December 31, 2020, that the purported class action suits that alleged the company refuses to pay agent fees to purported agents of borrowers under the Paycheck Protection Program (PPP) in violation of Small Business Administration ("SBA") regulations, have been dismissed. In May of 2020, a purported class action lawsuit was filed against Frost Bank in a Texas Federal court alleging that Frost Bank had refused to pay agent fees to purported agents of borrowers under the PPP in violation of SBA regulations. The Plaintiff's motion to dismiss the Federal lawsuit was effected and as a result the Federal lawsuit is resolved. In July 2020, a purported class action lawsuit was filed against Frost Bank in a California Federal court alleging that Frost Bank had refused to pay agent fees to purported agents of borrowers under the PPP in violation of SBA regulations. The Plaintiff subsequently filed a motion to dismiss the lawsuit and the lawsuit was thereby resolved. In October 2020, a lawsuit was filed against Frost Bank in Texas State court alleging, among other claims, that Frost Bank had refused to provide a PPP loan to the purported applicant. Frost Bank removed the lawsuit to Federal court, and the presiding Federal judge subsequently dismissed the lawsuit with prejudice. Based in San Antonio, Tex., Cullen/Frost Bankers, Inc. is a financial holding company and a bank holding company. Through its subsidiaries, the Company provides products and services throughout numerous Texas markets, including commercial and consumer banking, trust and investment management, mutual funds, investment banking, insurance, brokerage, leasing, asset-based lending, treasury management and item processing. D&W FINE: Illegally Collects Employees' Fingerprints, Smith Alleges ------------------------------------------------------------------- NICOLE SMITH, individually and on behalf of all others similarly situated, Plaintiff v. D&W FINE PACK, LLC, Defendant, Case No. 2021L000182 (Ill. Cir., 18th Jud. Ct., Dupage Cty., February 10, 2021) is a class action against the Defendant for violations of the Biometric Information Privacy Act. According to the complaint, the Defendant did not and continues not to: (a) properly inform the Plaintiff and others similarly situated in writing of the specific purpose and length of time for which their fingerprint(s) were being collected, stored, disseminated and used; (b) provide a publicly available retention schedule and guidelines for permanently destroying the Plaintiff's and other similarly-situated individuals' fingerprints; (c) receive a written release from the Plaintiff and others similarly situated to collect, store, disseminate or otherwise use their fingerprint(s); and (d) obtain consent from the Plaintiff and others similarly situated to disclose, redisclose, or otherwise disseminate their biometric identifiers and/or biometric information to a third party. D&W Fine Pack, LLC is a manufacturer of food packaging products doing business in Illinois. [BN] The Plaintiff is represented by: Brandon M. Wise, Esq. Paul A. Lesko, Esq. PEIFFER WOLF CARR KANE & CONWAY, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 E-mail: bwise@peifferwolf.com plesko@peifferwolf.com DALE ELECTRONICS: Quezada Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Dale Electronics Corp. The case is styled as Jose Quezada, on behalf of himself and all others similarly situated v. Dale Electronics Corp., Case No. 1:21-cv-01241 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Dale Electronics Corp. -- https://daleproaudio.com/ -- wholesales and distributes electronic parts and electronic communications equipment.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com DAUGHERTY SYSTEMS: Seeks to Decertify Conditional Collective Class ------------------------------------------------------------------ In the class action lawsuit captioned as TAMARA O'REILLY v. DAUGHERTY SYSTEMS, INC., Case No. 4:18-cv-01283-SRC (E.D. Mo.), Defendant Daugherty Systems asks the Court to enter an order: 1. granting its motion to decertify conditional collective class; and 2. dismissing all claims of the Opt-in Plaintiffs without prejudice, and for such further relief the Court deems proper and just. On March 31, 2020, the Court granted conditional certification, conditionally certifying a collective class consisting of: "current and former female consultants and sales employees." On August 3, 2018, Plaintiff Tamara O'Reilly filed a Complaint on behalf of herself and all current and former consultants and sales employees employed by the Defendant, alleging that members of the collective were victims of a single decision, policy, or plan that resulted in female employees being paid less than their male comparators. Daugherty provides business consulting solutions. The Company offers management consulting, mobile consulting, business intelligence, custom development, and managed services. A copy of the Defendant's motion to decertify class dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/2MVNaFx at no extra charge.[CC] The Plaintiff is represented by: Matthew J. Ghio, Esq. GHIO LAW FIRM LLC 3115 S. Grand, Suite 100 St. Louis, MO 63118 Telephone: (314) 707-5853 Facsimile: (314) 732-1404 E-mail: matt@ghioemploymentlaw.com - and - Eli Karsh, Esq. LIBERMAN, GOLDSTEIN & KARSH 230 South Bemiston Ave., Suite 1200 Clayton, MO 63105 Telephone: (314) 862-3333 Ext 13 Facsimile: (314) 862-0605 E-mail: elikarsh@aol.com The Defendant is represented by: Abigail B. Schwab, Esq. Andrew J. Martone, Esq. Willie T. McGarry, Esq. HESSE MARTONE, P.C. 530 Maryville Centre Drive, Suite 250 St. Louis, MO 63141 Telephone: (314) 862-0300 Facsimile: (314) 862-7010 E-mail: andymartone@hessemartone.com abbyschwab@hessemartone.com williemcgarry@hessemartone.com DAVANTAGE GROUP: Settles Motor Warranty Class Action for $9.5MM --------------------------------------------------------------- InsuranceNews.com.au reports that members of a motor warranty class action have agreed to settle the lawsuit for $9.5 million, significantly lower than the $47.6 million they were seeking from Davantage Group, a subsidiary of listed fleet leasing company McMillan Shakespeare. Federal Court Justice Jonathan Beach announced the terms of the financial compensation in a ruling on Feb. 5, months after the two parties agreed to settle it last October and more than a year after he ruled the product contracts had been "intended to operate to permit denial of full coverage" of repair claims. Justice Beach says the compensation "represents a small recovery when one has regard to the estimated aggregate value of the group members' claims" but points out that Davantage's financial position has deteriorated, with net assets of just $956,000 at June 30 2019, compared to $26.6 million a year earlier. Furthermore, its parent company McMillan Shakespeare did not propose to indemnify Davantage in respect of any settlement that it agreed to pay or any judgment entered against it. It was also noted that Davantage's excess layer insurers -- CGU Insurance, Dual Australia Pty Ltd, and Berkley Insurance Australia -- have all denied indemnity, as has its primary insurer, Suncorp-owned Vero Insurance. "In summary, I accept that the $9.5 million payment offered by Davantage after commercial negotiation represents the best recovery that could be achieved," Justice Beach said. "I say this in circumstances where Davantage has no capacity to satisfy a substantial judgment on the applicant's and group members' claims in the proceeding and each of the relevant insurers have denied coverage. "In summary, in my view it is fair and reasonable and in the interests of group members to settle the proceeding for the global sum of $9.5 million." Consumer Action Law Centre CEO Gerard Brody says the class action provided some measure of access to justice for insurance customers who have been ripped off. "Rubbish warranties have been sold for far too long and this penalty is some good news," he told insuranceNEWS.com.au today. "But the sad fact is that only a fraction of potential claimants signed up to the class action so thousands of low-income families who have been ripped off by junk insurance have missed out. "It's time this scam is knocked on the head once and for all." [GN] DAVITA INC: Kyros Law Files Legal Claims on Behalf of Investors --------------------------------------------------------------- Kyros Law Offices is alerting investors of Davita Inc (NYSE:DVA) that the deadline in filing claims from the investor lawsuit settlement against the company is fast approaching. The company has agreed to settle a shareholder lawsuit filed against it by investors for over $135 million dollars. Davita Inc (NYSE:DVA) investors that purchased between 02/26/2015 and 10/06/2017 are urged to contact our law firm immediately to protect their rights. Visit our DVA Lawsuit Settlement website or call 1-800-934-2921 to speak to someone about your case. Your legal rights will be affected whether you act or do not act. If you do not act, you may permanently forfeit your right to recover on this claim. The shareholder lawsuit alleged that company officials made false statements stemming from allegations that senior officials at the company deliberately arranged to push patients into insurance plans they didn't need in order to increase profits. Davita Inc (NYSE:DVA) investors that purchased between 02/26/2015 and 10/06/2017 are urged to contact our law firm immediately to protect their rights. Visit our DVA Lawsuit Settlement website or call 1-800-934-2921 to speak to someone about your case. Receive alerts about potential class action lawsuits that may affect you by visiting the Class Action Lawsuit Center website. Kyros Law specializes in a wide range of complex litigation, mass torts, and corporate governance matters, including the representation of whistleblowers, shareholders and consumers in securities fraud, false claims act and class actions. Our lawyers have been responsible for recovering hundreds of millions of dollars for our clients throughout the United States, Africa, Asia and Europe. Visit our website to learn more about our firm. [GN] DECISION DIAGNOSTICS: Faruqi & Faruqi Reminds of March 16 Deadline ------------------------------------------------------------------ Faruqi & Faruqi, LLP, a leading national securities law firm, is investigating potential claims against Decision Diagnostics Corp. ("Decision Diagnostics" or the "Company") (Other OTC:DECN) and reminds investors of the March 16, 2021 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you suffered losses exceeding $300,000 investing in Decision Diagnostics stock or options between March 3, 2020 and December 17, 2020 and would like to discuss your legal rights, call Faruqi & Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext. 1310). You may also click here for additional information: Faruqi & Faruqi is a leading minority and Woman-owned national securities law firm with offices in New York, Delaware, Pennsylvania, California and Georgia. As detailed below, the lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose 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) the Company could not meet the FDA's emergency use authorization ("EUA") testing requirements for its purported COVID-19 test; (3) accordingly, Defendants had misrepresented the timeline within which it could realistically bring its COVID-19 test to market; (4) all 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. Specifically, on December 17, 2020, the Securities and Exchange Commission ("SEC") filed a complaint in federal court against Defendants, alleging that they had issued a series of press releases that falsely claimed that Decision Diagnostics had developed a finger-prick blood test that could detect COVID-19 in less than one minute (the "SEC Complaint"). According to the SEC Complaint, from March 2020 to at least June 2020, Defendants made false and misleading statements about the existence of Decision Diagnostics' COVID-19 device and progress towards achieving FDA EUA for that device. As alleged, at the time of these claims, Decision Diagnostics lacked a proven method for detecting the virus and had no physical testing device. The SEC Complaint further alleged that the statements created the misleading impression that Decision Diagnostics would soon introduce the COVID-19 test to the market, which led to surges in the price and trading volume of the Company's stock. Following the filing of the SEC Complaint, Decision Diagnostics' common share price fell $0.06 per share, or 60%, to close at $0.04 per share on December 18, 2020. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP also encourages anyone with information regarding Decision Diagnostics' conduct to contact the firm, including whistleblowers, former employees, shareholders and others. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP ( ). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. [GN] DIRECTV LLC: Creve Coeur Suit Removed from Circuit Ct. to E.D. Mo. ------------------------------------------------------------------ The class action lawsuit captioned as City of Creve Coeur, Missouri, v. DirecTV, LLC, et al., Case No. 18SL-CC02821-01, was removed from the St. Louis County Circuit Court, Missouri, to the U.S. District Court for the Eastern District of Missouri on Jan. 29, 2021. The District Court Clerk assigned Case No. 4:21-cv-00122-AGF to the proceedings. The case arises from contract-related issues and is assigned to the Hon. Judge Audrey G. Fleissig. DirecTV is an American direct broadcast satellite service provider based in El Segundo, California, and is a subsidiary of AT&T. Its satellite service, launched on June 17, 1994, transmits digital satellite television and audio to households in the United States, Latin America, and the Caribbean.[BN] The Plaintiff is represented by: Carl J. Lumley, Esq. CURTIS HEINZ PC 130 S. Bemiston Ave., Suite 200 St. Louis, MO 63105-1951 Telephone: (314) 725-8788 Facsimile: (314) 725-8789 E-mail: clumley@lawfirmemail.com - and - Elkin L. Kistner, Esq. BICK AND KISTNER PC 101 S. Hanley Road, Suite 1280 St. Louis, MO 63105 Telephone: (314) 571-6823 Facsimile: (314) 727-9071 E-mail: elkinkis@bick-kistner.com - and - Garrett Ray Broshuis, Esq. John W. Hoffman, Esq. Steven M. Berezney, Esq. KOREIN AND TILLERY LLC -- ST LOUIS 505 North 7th Street, Suite 3600 St. Louis, MO 63101 Telephone: (314) 241-4844 Facsimile: (314) 241-3525 E-mail: gbroshuis@koreintillery.com jhoffman@koreintillery.com sberezney@koreintillery.com - and - John F. Mulligan , Jr., Esq. 101 S. Hanley, Suite 1280 Clayton, MO 63105 Telephone: (314) 725-1135 Facsimile: (314) 727-9071 E-mail: jfmulliganjr@aol.com Defendant DirecTV, LLC is represented by: Booker T. Shaw, Esq. Robert J. Wagner, Esq. Roman P. Wuller, Esq. Katie Lee, Esq. THOMPSON COBURN LLP -- ST LOUIS One US Bank Plaza 505 N. 7th Street, Suite 2700 St. Louis, MO 63101 Telephone: (314) 552-6087 Facsimile: (314) 552-7087 E-mail: bshaw@thompsoncoburn.com rwagner@thompsoncoburn.com rwuller@thompsoncoburn.com klee@thompsoncoburn.com Defendants Dish Network Corp. and Dish Network L.L.C. are represented by: Jeffrey L. Schultz, Esq. ARMSTRONG TEASDALE LLP -- ST LOUIS 7700 Forsyth Blvd., Suite 1800 St. Louis, MO 63105 Telephone: (314) 621-5070 Facsimile: (314) 621-5065 E-mail: jschultz@atllp.com DISCOUNT DANCE: Blind Users Can't Access Website, Sanchez Claims ---------------------------------------------------------------- CHRISTIAN SANCHEZ, on behalf of himself and all others similarly situated v. DISCOUNT DANCE, LLC, Case No. (S.D.N.Y., Feb. 2, 2020) alleges that the Defendant 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 people. The Plaintiff contends that the Defendant's denial of full and equal access to its Website, www.discountdance.com, and therefore denial of its products and services offered thereby, is a violation of the Plaintiff's rights under the Americans with Disabilities Act. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read Website content using her computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet their definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. The Defendant is a dancewear company, and owns and operates the Website, offering features which should allow all consumers to access the goods and services and which the Defendant ensures the delivery of such goods throughout the United States, including New York State. The goods and services offered by the Defendant include the ability to browse dancewear for purchase and delivery, view sales, obtain the defendant's contact information, and related goods and services available online.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending ---------------------------------------------------------- DXC Technology Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the appeal on the order of dismissal in the purported class action suit filed before the United States District Court for the Eastern District of Virginia, is pending. On December 27, 2018, a purported class action lawsuit was filed in the United States District Court for the Eastern District of Virginia against the Company and two of its current officers. The lawsuit asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and is premised on allegedly false and/or misleading statements, and alleged non-disclosure of material facts, regarding the Company's business, operations, prospects and performance during the proposed class period of February 8, 2018 to November 6, 2018. The Company moved to dismiss the claims in their entirety, and on June 2, 2020, the court granted the Company's motion, dismissing all claims and entering judgment in the Company's favor. On July 1, 2020, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. The appeal remains pending. DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. DXC TECHNOLOGY: Hearing on Bid for Initial Cert. Set for April 15 ----------------------------------------------------------------- DXC Technology Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the plaintiffs' motion for preliminary certification of the collective action in Forsyth, et al. v. HP Inc. and Hewlett Packard Enterprise, is set to be heard on April 15, 2021. On August 18, 2016, this purported class and collective action was filed in the U.S. District Court for the Northern District of California, against HP Inc. (HP) and Hewlett Packard Enterprise (HPE) alleging violations of the Federal Age Discrimination in Employment Act (ADEA), the California Fair Employment and Housing Act, California public policy and the California Business and Professions Code. Former business units of HPE now owned by the Company may be proportionately liable for any recovery by plaintiffs in this matter. Plaintiffs seek to certify a nationwide class action under the ADEA comprised of all U.S. residents employed by defendants who had their employment terminated pursuant to a workforce reduction ("WFR") plan and who were 40 years of age or older at the time of termination. The class seeks to cover those impacted by WFRs on or after December 2014. Plaintiffs also seek to represent a Rule 23 class under California law comprised of all persons 40 years of age or older employed by defendants in the state of California and terminated pursuant to a WFR plan on or after August 18, 2012. In January 2017, defendants filed a partial motion to dismiss and a motion to compel arbitration of claims by certain named and opt-in plaintiffs who had signed release agreements as part of their WFR packages. In September 2017, the Court denied the partial motion to dismiss without prejudice, but granted defendants' motions to compel arbitration for those named and opt-in plaintiffs. The Court stayed the entire action pending arbitration for these individuals and administratively closed the case. A mediation was held in October 2018 with the 16 named and opt-in plaintiffs who were involved in the case at that time. A settlement was reached, which included seven plaintiffs who were employed by former business units of HPE that are now owned by the Company. In June 2019, a second mediation was held with 145 additional opt-in plaintiffs who were compelled to arbitration pursuant to their release agreements. In December 2019, a settlement was reached with 142 of the opt-in plaintiffs, 35 of whom were employed by former business units of HPE that are now owned by the Company, and for which the Company was liable. In December 2020, Plaintiffs filed a motion for preliminary certification of the collective action, which Defendants intend to oppose. A hearing on the motion has been scheduled for April 15, 2021. Former business units of the Company now owned by Perspecta may be proportionately liable for any recovery by plaintiffs in this matter. DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. DXC TECHNOLOGY: Hearing on Bid to Junk Class Suit Set for April 23 ------------------------------------------------------------------ DXC Technology Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the hearing on the motion to dismiss the consolidated purported class action suit is is scheduled for April 29, 2021. On August 20, 2019, a purported class action lawsuit was filed in the Superior Court of the State of California, County of Santa Clara, against the Company, directors of the Company, and a former officer of the Company, among other defendants. On September 16, 2019, a substantially similar purported class action lawsuit was filed in the United States District Court for the Northern District of California against the Company, directors of the Company, and a former officer of the Company, among other defendants. On November 8, 2019, a third purported class action lawsuit was filed in the Superior Court of the State of California, County of San Mateo, against the Company, directors of the Company, and a former officer of the Company, among other defendants. The third lawsuit was voluntarily dismissed by the plaintiff and re-filed in the Superior Court of the State of California, County of Santa Clara on November 26, 2019, and thereafter was consolidated with the earlier-filed action in the same court on December 10, 2019. The California lawsuits assert claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, and are premised on allegedly false and/or misleading statements, and alleged non-disclosure of material facts, regarding the Company's prospects and expected performance. Plaintiff in the federal action filed an amended complaint on January 8, 2020. The putative class of plaintiffs in these cases includes all persons who acquired shares of the Company's common stock pursuant to the offering documents filed with the Securities and Exchange Commission in connection with the April 2017 transaction that formed DXC. On July 15, 2020, the Superior Court of California, County of Santa Clara, denied the Company's motion to stay the state court case but extended the Company's deadline to seek dismissal of the state action, until after a decision on the Company's motion to dismiss the federal action. The Company has since moved to dismiss the state action, and the court has continued the motion until after the outcome of the federal action. On July 27, 2020, the United States District Court for the Northern District of California granted the Company's motion to dismiss the federal action. The Court's order permitted plaintiffs to amend and refile their complaint within 60 days, and on September 25, 2020, the plaintiffs filed an amended complaint. On November 12, 2020, the Company filed a motion to dismiss the amended complaint. A hearing on the motion is scheduled for April 29, 2021. DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. DYCK O'NEAL: Feb. 15 Extension to Class Status Bid Response Sought ------------------------------------------------------------------ In the class action lawsuit captioned as NAKIA CHEEKS individually, and on behalf of all similarly situated consumers, v. DYCK O'NEAL, INC., Case No. 8:19-cv-02148-GJH (D. Md.), the Defendant asks the Court to enter an order extending the deadline to respond to the motion to certify class. DONI's response is currently due Thursday, February 4, 2021. Through the instant motion, DONI seeks a 14-day extension of time, or until Monday, February 15, 2021, within which to respond to the Plaintiff's motion to certify class. This is an action involving the Fair Debt Collection Practices Act. On January 21, 2021, the Plaintiff filed a motion to certify class. Dyck-O'Neal is a debt collector. A copy of the Defendant's motion dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3d1O91z at no extra charge.[CC] The Defendant is represented by: Jaime W. Luse, Esq. Cori B. Schreider, Esq. TYDINGS & ROSENBERG LLP One East Pratt Street, Suite 901 Baltimore, MD 21202 Telephone: (410) 752-9700 Facsimile: (410) 727-5460 E-mail: jluse@tydings.com cschreider@tydings.com - and - Sangeeta Spengler, Esq. GOLDEN SCAZ GAGAIN, PLLC 201 North Armenia Avenue Tampa, FL 33609 Telephone: 813-251-5500 E-mail: spspenger@gsgfirm.com EAST BATON ROUGE, LA: Bids to Dismiss Belton v. Gautreaux Granted ----------------------------------------------------------------- In the lawsuit captioned CLIFTON BELTON, JR., ET AL. v. SHERIFF SID GAUTREAUX, IN HIS OFFICIAL CAPACITY AS SHERIFF OF EAST BATON ROUGE, ET AL., Case No. 20-00278-BAJ-SDJ (M.D. La.), the U.S. District Court for the Middle District of Louisiana granted two motions to dismiss: -- the Motion to Dismiss Pursuant to Rule 12(b) of the Federal Rules of Civil Procedure by Defendants Sheriff Sid J. Gautreaux, III, and Lt. Col. Dennis Grimes ("Sheriff Defendants"); and -- the Motion to Dismiss by Defendant City of Baton Rouge/Parish of East Baton Rouge ("City/Parish"). Collectively, the Defendants' Motions seek wholesale dismissal of the Plaintiffs' putative class action, with prejudice. The Plaintiffs oppose the Defendants' Motions. The Defendants have filed reply memoranda in further support of their respective Motions, and the Plaintiffs and the Defendants have each submitted supplemental letters to the Court regarding recent factual and legal developments relevant to the Plaintiffs' claims. The Plaintiffs' proposed class action is one of many in the Circuit and around the nation alleging unconstitutional prison conditions wrought by the ongoing COVID-19 pandemic. The Plaintiffs consist of 10 men who are, or have recently been incarcerated in the East Baton Rouge Parish Prison ("EBRPP"). They are all African-American, range in age from 21 to 60 years old, and many suffer from chronic health conditions, including diabetes, high blood pressure, and heart disease. One Plaintiff (Jerry Bradley) alleges that he contracted COVID-19 while imprisoned. All allege that they are at substantially greater risk of contracting COVID-19 as a result of the Defendants' failures to adequately safeguard prisoners against the virus. In their Amended Complaint, the Plaintiffs allege that the jail has made no efforts to implement the standard protective measures that medical experts have advised for all people. The jail does not practice or promote social distancing, does not adequately clean or disinfect common and high-touch areas, and otherwise leaves detained individuals without sufficient soap or masks to protect themselves; it provides inadequate medical care to detainees battling the coronavirus, and it has even stopped performing routine medical checks to track and treat transmissions of the virus, despite statements to the contrary in the media. According to the Plaintiffs, the jail has chosen to warehouse detainees, who test positive for or exhibit symptoms of COVID-19 in a building that has been condemned since 2018. Those individuals are confined in their cells for almost 24 hours every day without adequate access to the medical care they need. In short, the jail forces the individuals in its care to endure unconstitutional conditions that deny them the precautions and protections necessary to mitigate against the risks of COVID-19, most critically the ability to socially distance from those around them. As a result of these alleged conditions, the Plaintiffs seek various forms of injunctive relief, including an order immediately releasing medically vulnerable prisoners to home confinement, and an order directing the Defendants to improve their efforts to protect prisoners against COVID-19 through social distancing, and increased access to testing, masks, hand sanitizer, temperature checks, and personal hygiene and cleaning supplies. Critically, District Judge Brian A. Jackson finds, even as the Plaintiffs allege that Defendants have "made no efforts to implement the standard protective measures" against COVID-19, their Amended Complaint details multiple protective measures implemented by the Defendants since the onset of the pandemic. These include: closing the prison to outside visitors beginning in mid-March 2020; discontinuing all non-emergency off-site trips; reopening previously condemned portions of the prison to serve as isolation wings for prisoners testing positive for COVID-19; "quarantining" the general population according to housing "line,"; preventing prisoners from leaving their quarantined housing line except for medical care or removal to a COVID-19 isolation wing; testing prisoners for COVID-19; removing prisoners testing positive for COVID-19 to an isolation wing, and allowing such prisoners to return to the general population only after two successive negative COVID-19 tests; providing meals to prisoners in their housing lines rather than the mess hall; supplying masks to all prisoners or, in the absence of masks, cloth bandanas; providing "limited cleaning supplies" to prisoners; providing soap to prisoners; conducting universal temperature checks beginning in April 2020; and providing personal protective equipment to prison staff, including masks, gloves, and body suits. The Amended Complaint seeks recognition of a class consisting of "all current and future persons held at the East Baton Rouge Parish Prison during the course of the COVID-19 pandemic" ("Jail Class"). The Amended Complaint further seeks recognition of three subclasses: (1) members of the Jail Class that have not yet been convicted of an offense ("Pretrial Subclass"); (2) members of the Jail Class that have been convicted of an offense and are serving sentences ("Post-Conviction Subclass"); and (3) members of the Jail Class older than 65 years or suffering from pre-existing medical conditions putting them at higher risk of serious illness or death due to COVID-19 ("Medically Vulnerable Subclass"). The Plaintiffs allege two distinct constitutional violations: (1) the Defendants' failures to adequately protect prisoners against the COVID-19 pandemic have denied members of the Post-Conviction Subclass of their Eighth Amendment right to be free from cruel and unusual punishment (Count II); and (2) the same failures have denied members of the Pretrial Subclass of their Fourteenth Amendment right to due process (Count I). Additionally, based on the same alleged constitutional violations, the Medically Vulnerable Subclass seeks release to home confinement pursuant to the habeas corpus statute, 28 U.S.C. Section 2241 (Counts III and IV). The same day that they filed the Amended Complaint (May 27, 2020), the Plaintiffs sought a temporary restraining order requiring the Defendants to immediately release all members of the Medically Vulnerable Subclass to home confinement. On July 3, 2020, after multiple rounds of briefing and an evidentiary hearing, the Court denied Plaintiffs' request for a TRO. In relevant part, the Court's July 3 Order made a preliminary determination that the Plaintiffs' claims were unlikely to succeed because the Defendants' response to challenges posed by the COVID-19 pandemic belied the Plaintiffs' claims of "subjective deliberate indifference." Judge Jackson finds that the Defendants have clearly demonstrated that they have taken measures to implement precautions to protect inmates from the COVID-19 pandemic. This does not satisfy the requisite state of mind indicative of subjective deliberate indifference, which the Supreme Court has stated to be akin to recklessness. Though the Petitioners may disagree whether these measures are enough, EBRPP has taken the initiative, consulted with professionals, devised, and incorporated safety protocols and education for its inmates. While the Court does not rule on the alleged Constitutional violations at this time, it finds that the Petitioners have failed to demonstrate a substantial likelihood of success on the merits of their claims. On July 28, 2020, the Sheriff Defendants filed their Motion to Dismiss. On October 23, 2020, the City/Parish followed with its Motion. The arguments raised in each Motion are the same. First, the Defendants seek dismissal under Rule 12(b)(1), contending that the Court lacks jurisdiction because the Plaintiffs cannot show an imminent risk of harm and thus cannot establish standing. Additionally, the Defendants contend that any claims to immediate release must be dismissed because the Plaintiffs have failed to exhaust their administrative remedies, and because, generally, a writ of habeas corpus under 28 U.S.C. Section 2241 is reserved for cases alleging unconstitutional cause or duration of confinement, and is not available to plaintiffs challenging unconstitutional conditions of confinement. In the alternative, the Defendants seek dismissal under Rule 12(b)(6), arguing that the Plaintiffs' constitutional claims fail because Plaintiffs cannot show that they were subjected to "an objectively intolerable risk of harm" resulting from the Defendants' response to the COVID-19 pandemic, or that Defendants' response exhibits "subjective deliberate indifference." The Court determines that the Defendants' jurisdictional challenges fail, but that the Plaintiffs' action must nonetheless be dismissed because the allegations in the Plaintiffs' Amended Complaint defeat their assertions of "subjective deliberate indifference." When a complaint fails to state a claim, the Court should generally give the plaintiff a chance to amend under Rule 15(a) before dismissing the action with prejudice, unless it is clear that to do so would be futile. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002). The Court determines that amendment would be futile in light of the Plaintiffs' allegations defeating their assertions of the Defendants' subjective deliberate indifference. The Court will dismiss the Plaintiffs' action with prejudice, without granting leave to amend. Accordingly, the Defendants' Motions to Dismiss are granted, and that the action is dismissed with prejudice. The Plaintiffs' Motion for Class Certification is terminated. The Court will issue a Final Judgment separately. A full-text copy of the Court's Ruling and Order dated Feb. 4, 2021, is available at https://tinyurl.com/ywzwdbuz from Leagle.com. ELAP SERVICES: Hospital Bid to Appoint Interim Class Counsel Tossed ------------------------------------------------------------------- In the class action lawsuit captioned as South Broward Hospital District v. ELAP Services, LLC, et al., Case No. 0:20-cv-61007 (S.D. Fla.), the Hon. Judge Raag Singhal entered an order denying without prejudice the Plaintiff's Motion to Appoint Interim Class Counsel. The Court finds Plaintiff's Motion to be premature at this time. Should a change in circumstances arise, such as filing of a motion to certify class, another firm competing for lead counsel, or another similar class action pending, Plaintiff may re-file its Motion says Judge Singhal. The nature of suit states Contract - Other Contract. South Broward Hospital District. South Broward Hospital District, doing business as Memorial Healthcare System, provides medical and surgical hospital services. ELAP functions as a fiduciary sponsor of self-funded health plans. The Company provides plan sponsors legal advice to assist with DoL and HIPAA compliance, offers access to an independent review organization to assure medical compliance, and assumes responsibility for final level appeal decisions.[CC] ENDO INT'L: Court to Pick Bucks County as Lead in Pelletier Suit ---------------------------------------------------------------- In the lawsuit captioned ALEXANDRE PELLETIER, Individually and On Behalf of All Others Similarly Situated v. ENDO INTERNATIONAL PLC, RAJIV KANISHKA LIYANAARCHCHIE DE SILVA, SUKETU P. UPADHYAY, AND PAUL V. CAMPANELLI, Case No. 17-cv-5114 (E.D. Pa.), the U.S. District Court for the Eastern District of Pennsylvania is prepared to designate as the Lead Plaintiff the Bucks County Employees Retirement Fund, and its principal counsel, Lawrence F. Stengel, Esquire, as the Lead Counsel. The Court will disqualify Park Employees' Annuity and Benefit Fund of Chicago, and Bleichmar, Fonti & Auld LLP and will replace them as lead plaintiff and class counsel. At this litigation's core, the Plaintiffs allege that Endo and its executives misled investors regarding the source and resilience of record profits from their generics division while concealing unsustainably non-competitive pricing behavior and government investigations. The Plaintiffs argue that they, therefore, paid artificially high prices for Endo shares and were injured when the truth of Endo's behavior came to light, popping the pricing bubble. During three years of litigation and three supervising judges, the prospective lead plaintiff, Park Employees' Annuity and Benefit Fund of Chicago ("Park"), and class counsel Bleichmar, Fonti & Auld LLP ("BLA"), had moved for class certification under Rule 23 of the Federal Rules of Civil Procedure, but issues concerning their leadership role must be resolved. The present opinion will focus on Park and BLA's ("Park/BLA") continuing to represent the prospective class. Throughout discovery and class certification briefing, Park/BLA has acted in ways that have undermined their important roles in this case and the class' interests will be better served by new leadership taking the reins, says District Judge Michael M. Baylson. Four issues are paramount: representations about the timing of Park's acquisition of Endo shares, use of questionably misleading language in its papers to obscure the role of Park's investment advisor as the sole decisionmaker in the Endo acquisition process, Park/BLA have threatened the settlement of a related state court class action under dubious legal theories, triggering a potentially years-long delay in finalizing that settlement, and Park's typicality that may damage the class' interests at trial. To avoid the risk that Park/BLA' damaged credibility or potential inadequacy could harm the class, the Court will disqualify Park and BLA and will replace them as lead plaintiff and class counsel. Alexandre Pelletier filed the original complaint against Endo in November 2017 originally overseen by Judge Padova. In January 2018, the case was transferred to Judge Savage, who was overseeing another securities class action against Endo. Pursuant to the Private Securities Litigation Reform Act ("PSLRA"), Judge Savage found Park to be the appropriate lead plaintiff based on the PSLRA's preference for institutional investors and Park's significant financial losses, comparable to those of the alternative lead plaintiffs. He simultaneously appointed BLA as class counsel. His opinion assumed Park/BLA' adequacy and typicality. Park/BLA filed an amended complaint on behalf of the class, alleging two counts: (1) price-fixing conspiracy and (2) misleading stockholders through material misrepresentations and/or omissions. The case was then reassigned back to Judge Padova, who recused himself, leading to the case's assignment to this Court in September 2019. Following briefing and oral arguments on Endo's Rule 12 motion, the Court dismissed price-fixing claims against Endo in February 2020, but otherwise denied the motion to dismiss and permitted the Plaintiffs' other claim to proceed. As Park/BLA initially proposed the class period, it would include any Endo stock purchasers for a 729-day period. Park owned legally relevant Endo shares for about one-seventh of that period. What is more, it is now clear that it acquired those shares only after the first corrective disclosure on November 3, 2016, and it continued to acquire more shares throughout the class period. Decision Park/BLA have raised sufficient red flags here that the Court must order their replacement in this litigation, for the benefit of the alleged class, Judge Baylson opines. Absent class members deserve adequate representation, which Park/BLA had failed to provide. Replacement of the class' leadership will allow the litigation to proceed with better leadership so that if a class is certified, it will have a better chance of enjoying its day in court. The Court is not making any predictions of how the claim of liability will be determined. Judge Baylson notes that it is not impossible to determine where this behavior originated, whether from attorney or client. Nor does it matter in this context, where the lead plaintiff and the lead counsel are, in many ways, responsible for each other's conduct. Both bear responsibility, and both should be replaced, Judge Baylson holds. Most significantly, the need to replace Park/BLA is clear based on their representations to this Court, many of which were incorrect or misleading, Judge Baylson opines. Park/BLA clearly failed to ascertain the exact timing of Park's acquisition and misrepresented that lack of knowledge as if it were a certainty. More seriously, an inference arises they deliberately misled this Court as to purchase timing. Either raises concerns about Park/BLA' ability to adequately represent the class. Furthermore, Park/BLA attempted to suppress discovery in other jurisdictions to secure facts that this Court held to be relevant and producible, away from this Court's supervision. Park/BLA's attempt to do so without informing the local courts of this Court's prior ruling on the matter--even trying to cover up the explicit ruling of the Court--is very serious lapse of candor, if not worse, Judge Baylson points out. Park/BLA also obfuscated the role of Lombardia as the sole decisionmaker in Park's stock purchases. This distinction is legally relevant--a plaintiff who purchases shares must show that it relied on the defendant's misrepresentations or omissions (through a reliance on the market theory or otherwise); one that relies on a third-party advisor must show that its investment advisor relied on those misrepresentations or omissions, Judge Baylson holds, citing In re Advance Auto Parts, Inc. Sec. Litig., No. 18-212, 2020 WL 6544637, at *5 (D. Del. Nov. 6, 2020). Park/BLA' actions have prevented the state court litigants from receiving their desired class action settlements, which could result in years of delay, Judge Baylson notes. To the extent that Park/BLA' most recent proposed definition removes any overlap and permits execution of the settlement in Public Employees' Retirement System of Mississippi v. Endo, et al. ("MissPERS"), Case No. 2017-02081-MJ (Pa. Ct. Com. Pl., Mar. 3, 2020), the Court is concerned that Park/BLA failed to pursue this step on their own accord months ago, for the good of the MissPERS class members. Indeed, Park/BLA informed the Court that they will not dismiss its appeal at least until this Court certifies a class definition, which could take months to resolve. Park/BLA briefs regarding the MissPERS litigation shows evidence of the same fundamental and crucial effort to mislead judges in different courthouses, just as Park/BLA did not tell other judges about this Court's ruling on discoverability, Park/BLA told this Court something completely contrary to the state court's holding as to the scope of the MissPERS settlement's release. Finally, Judge Baylson holds, Park's purchase timing raises concerns of conflict with pre-disclosure purchasers, which, combined with the Court's other reservations about Park's representations made through its counsel, justify replacing Park as lead plaintiff. Where a lead plaintiff made its initial acquisition after a corrective disclosure, it may have a change in incentives, including to minimize the price impact of pre-purchase disclosures and maximize recovery on its own later-bought shares. This incentive could be stronger in cases such as this one, where there are very few alleged corrective disclosures over which loss causation is divided. Considering the totality of circumstances and in light of the concerns with Park/BLA' continued service in this litigation, the Court will remove them and reopen the lead plaintiff and lead counsel appointment. Based on filings which took place in late December of 2020, and the hearing which took place on January 21, 2021, this Court is prepared to designate as Lead Plaintiff the Bucks County Employees Retirement Fund, and its principal counsel, Lawrence F. Stengel, Esquire, as Lead Counsel. The Court will also designate individual clients of the Pomerantz firm, Alexandre Pelletier, Nathan Joseph Dole, and Lane(?) A. Wingard, as the co-lead Plaintiffs and the Pomerantz firm as the co-lead Counsel. The Court will designate another firm, located in Philadelphia, to work with the others. The Court will require the firm of Bleichmar, Fonti & Auld to cooperate fully with new Lead Counsel, including full access to its attorney-work product, documents and electronically stored information related to this case, which it secured while serving as lead counsel. Prompt cooperation will be essential in reviewing any fee petition that may be filed by the Bleichmar, Fonti & Auld firm at the conclusion of the case, assuming there is a settlement or a recovery on behalf of the class. In this connection, the Court discloses two short telephone conversations with Mr. Stengel in determining Mr. Stengel's availability to serve as the Lead Counsel, and that he would undertake the responsibility along with other law firms designated as co-lead counsel. The Court envisions Mr. Stengel being in charge of making assignments for additional discovery, briefing, strategy, and any settlement discussions, and if necessary, a trial. However, the bulk of the day-to-day work may be assigned to the other firms designated as co-lead Counsel. The Court notes that it is selecting three additional individuals represented by the Pomerantz firm as co-lead Plaintiffs because, based on their disclosures to the Court, they were actively involved personally, or through their personal relationships with investment advisors and stock brokers, and making decisions for the purchase or sale of Endo stock. Notwithstanding that Congress expressed a preference for institutional investors serving as lead plaintiffs, the Court believes that having an institutional investor, such as the Bucks County Fund (the beneficiaries of which are located within this district), as the Lead Plaintiff, but three individuals serving as co-lead Plaintiffs, would provide a broad range of testimony going to the merits of the claim. All of this is stated without prejudice to the defenses of Endo. The Court also notes that, although it may be unusual for a district judge to look after the interests of a putative class, this is required by the PSLRA and the discussions with Mr. Stengel were necessary to establish the appropriate leadership in the case, given the very unusual set of circumstances discussed above. Knowing Mr. Stengel for many years, the Court is quite sure that his performance as the Lead Counsel will be a benefit to a class, whether win, lose, or draw. A full-text copy of the Court's Memorandum dated Feb. 4, 2021, is available at https://tinyurl.com/3ff24mnr from Leagle.com. EXECUTIVE CAR RENTAL: Jardine Seeks Unpaid Overtime Under FLSA -------------------------------------------------------------- KEVIN JARDINE v. EXECUTIVE CAR RENTAL, Case No. 3:21-cv-00190-TKW-EMT (N.D. Fla., Feb. 2, 2021) is a class action brought by the Plaintiff seeking unpaid overtime pursuant to the Fair Labor Standards Act and relief pursuant to Florida Statutes 448.08, Accrued and Unpaid Wages and Commission. Mr. Jardine contends that he was not paid overtime for hours worked over 40 per week, even though he was a "non-exempt" employee, and thus entitled to such wages under federal law. The Plaintiff was employed by the Defendant as a counter agent preceding the filing of this complaint and performed work for the Defendant in the State of Florida and in the Northern District of Florida. The Defendant operates a commercial rental car company.[BN] The Plaintiff is represented by: Clayton M. Connors, Esq. THE LAW OFFICES OF CLAYTON M. CONNORS, PLLC. 4400 Bayou Blvd., Suite 32A Pensacola, FL 32503 Telephone: (850) 473-0401 Facsimile: (850) 473-1388 E-mail: cmc@westconlaw.com EXPRESS SCRIPTS: Perez Suit to File New Class Status Bid by Feb. 19 ------------------------------------------------------------------- In the class action lawsuit captioned as Diane Perez v. Express Scripts, et al., Case No. 2:19-cv-07752-CCC-ESK (D.N.J.), the Hon. Judge Edward S. Skiel entered an order granting the Plaintiff's motion to withdraw the pending motion for conditional certification and file a new motion for conditional certification by February 19, 2021. The Plaintiff filed the motion for class certification was filed on December 30, 2020. Class and conditional certification discovery continued after the filing of the motion, the deadline for which is March 2, 2021. The suit is a putative collective and class action filed pursuant to the Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). Express Scripts is a pharmacy benefit management organization. In 2017 it was the 22nd-largest company in the United States by total revenue as well as the largest pharmacy benefit management organization in the United States. A copy of the Plaintiff's motion to certify class dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/2Zb2wbD at no extra charge.[CC] The Plaintiff is represented by: Roosevelt N. Nesmith, Esq. LAW OFFICE OF ROOSEVELT N. NESMITH, LLC 363 Bloomfield Avenue, Suite 2C Montclair, NJ 07042 E-mail: roosevelt@nesmithlaw.com FADA GROUP: New Jersey Court Dismisses Lin Suit Without Prejudice ----------------------------------------------------------------- The U.S. District Court for the District of New Jersey granted in part and denied in part the Defendants' motion to dismiss the lawsuit captioned MINSHOU LIN, et al., Plaintiffs v. FADA GROUP INC. d/b/a SOGO, et al., Defendants, Case No. 20-5942 (D.N.J.). The putative collection and class action involves allegations that the Defendants failed to pay the Plaintiffs and similarly situated employees overtime in violation of the Fair Labor Standards Act ("FLSA") and the New Jersey Wage and Hour Law ("NJWHL"). Defendant Fada operates a restaurant where Plaintiffs Minshou Lin and Huotai Luo were employed. The Plaintiffs allege that the Defendants knowingly failed to pay them, and similarly situated employees, overtime wages. The Plaintiffs filed their two-count Complaint, asserting overtime violations against Defendants under the FLSA (Count One) and the NJWHL (Count Two). They also seek to bring claims on behalf of a proposed class of similarly situated, non-exempt employees who also were not paid overtime. The Defendants filed the Motion seeking to dismiss the Plaintiffs' Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiffs filed opposition to which the Defendants replied. The Court reviewed all submissions made in support and in opposition to the Motion, and considered the Motion without oral argument pursuant to L. Civ. R. 78.1(b). The Defendants first seek to dismiss the claims as to Lin because of the executive employee exemption. The FLSA requires employers to pay overtime compensation for a non-exempt employee's work that is over forty hours per week. However, 29 U.S.C. Section 213 provides that "any employee employed in a bona fide executive, administrative, or professional capacity" is exempt from the overtime requirement. In arguing that Lin is an executive employee, the Defendants rely on allegations that do not appear in the Complaint. Namely, the Defendants contend that during his employment, Lin was promoted to kitchen manager. As kitchen manager, Lin allegedly "oversaw and managed the entire kitchen staff." They also maintain that Lin had the authority to hire and fire employees. The Defendants' factual allegations regarding Lin's role as kitchen manager are not pled in the Complaint. Further, the Defendants do not contend that they are a matter of public record or that they appear in any document that is integral to or explicitly relied upon in the Complaint. Thus, the Court does not consider this information as to the motion to dismiss. Consequently, as pled, Lin is not exempt from the FLSA or NJWHL's overtime requirements, District Judge John Michael Vazquez holds. The Defendants' motion is denied on these grounds. Next, the Defendants argue that the Complaint must be dismissed because the Plaintiffs fail to plead that they were not paid overtime as required by the FLSA and the NJWHL. The Plaintiffs plead that they regularly worked more than forty hours a week. But while the Plaintiffs allege that they were not paid overtime, the Complaint only establishes the Plaintiffs' weekly gross pay, Judge Vazquez notes. The Plaintiffs do not plead what their hourly rate was, and without this information, the Court cannot determine whether they were paid time and a half for the overtime hours that the Plaintiffs regularly worked. Without this critical information, the Plaintiffs' failure to pay overtime claims are conclusory and not plausible, Judge Vazquez opines. Therefore, the Plaintiffs fail to state a claim, and their Complaint is dismissed. For the reasons stated in the Opinion, and for good cause shown, the Defendants' motion to dismiss is granted in part and denied in part. Accordingly, the Plaintiffs' Complaint is dismissed for failure to state a claim. The dismissal is without prejudice and the Plaintiffs will have 30 days to file an amended complaint that cures the deficiencies noted. If they do not file an amended pleading within that time, the Complaint will be dismissed with prejudice. An appropriate Order accompanies the Opinion. A full-text copy of the Court's Opinion dated Feb. 4, 2021, is available at https://tinyurl.com/sszsr5ds from Leagle.com. FEDEX CORP: Wins Bid to Dismiss Consolidated Securities Suit ------------------------------------------------------------ The U.S. District Court for the Southern District of New York granted with prejudice the Defendants' motion to dismiss the consolidated lawsuit titled IN RE FEDEX CORP. SECURITIES LITIGATION, Master File No. 1:19-cv-05990 (RA), Case No. 1:19-cv-06183 (RA), Case No. 1:19-cv-08723 (RA) (S.D.N.Y.). Lead Plaintiff City of Bradford Metropolitan District Council as administering authority to the West Yorkshire Pension Fund ("West Yorkshire" or "Plaintiff") brings the putative class action against FedEx and several current and former officers of the Company, alleging that the Defendants committed securities fraud in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10(b)-5. Specifically, the Plaintiff alleges that, from September 19, 2017 until December 18, 2018, the Defendants made numerous statements that misled the market as to the financial impact of a June 2017 Russian cyberattack (NotPetya virus) on FedEx's recently acquired European shipping subsidiary, TNT Express Services B.V. The Complaint alleges that, throughout the Class Period, FedEx misrepresented the status of its recovery from the NotPetya cyberattack. According to the Plaintiff, the Company's statements on the subject were materially misleading because they failed to disclose: (1) that TNT's international service was "largely disabled" for six months due to the virus; (2) that TNT was losing a significant proportion of its high-margin customers due to its failure to operate internationally; and (3) that NotPetya had substantially delayed, rather than accelerated, the integration of TNT into FedEx Express. The Plaintiff seeks to represent all persons and entities, who purchased FedEx common stock during the Class Period, and who were damaged thereby. The Defendants moved to dismiss the complaint pursuant to Rules 8(a), 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure, and the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. Section 78u-4. The Defendants contend that the complaint fails to allege sufficient facts to demonstrate (1) that the Defendants made any actionable misrepresentations or omissions or (2) a strong inference that Defendants acted with the requisite scienter. District Judge Ronnie Abrams notes that to establish that the Defendants acted with the requisite scienter--i.e., that they knew, or recklessly disregarded, the falsity or misleading nature of their public statements--the Complaint alleges that the Individual Defendants "were active and culpable participants in the fraudulent scheme," by virtue of their "receipt of information reflecting the true facts regarding FedEx," and their control over the public disclosure of the allegedly false statements. According to the Plaintiff, the Individual Defendants were "aware of key facts related to the Company's operations" that contradicted public statements about the lingering effects of NotPetya because of their positions as executive officers of FedEx, and because "FedEx's senior management, including the Individual Defendants, were in regular communication with TNT executives in Europe and took an active role in the integration of TNT into FedEx Express and the recovery efforts." The Defendants principally contend that Plaintiff fails to adequately plead the falsity of FedEx's statements about its recovery from NotPetya because those same statements were accompanied by numerous disclosures about the difficulties faced and expenses incurred by FedEx in that process. Having considered the documents that the Complaint incorporates by reference, the Court agrees. Even accepting the Plaintiff's allegations as true, the Court concludes that the challenged statements, when considered in their full context, would not mislead a reasonable investor as to NotPetya's effect on the Company or as to the status of the TNT integration. FedEx's numerous disclosures during the Class Period belie the Plaintiff's contention that FedEx "belatedly disclosed to the market the damage the NotPetya virus had caused to the Company and the FedEx Express/TNT segment" in December 2018. According to the Court's Opinion & Order, the "positive statements about the Company and its prospects" can be grouped into four categories: 1) references to the operating income improvement target; 2) statements regarding FedEx's progress in restoring TNT operations in the wake of NotPetya; 3) reassurances about the retention of TNT's customer base; and 4) statements concerning the pace and cost of TNT integration. The Court concludes that the Complaint fails to plausibly allege that any of these four categories of statements were false or materially misleading when made. It further concludes that the Complaint does not plead sufficient facts to raise a strong inference of scienter. Assuming, without deciding, that the first set of statements is actionable, the Court also concludes, among other things, that the Plaintiff has not alleged sufficient facts to demonstrate that any of the challenged representations were false or misleading when made. Because falsity and scienter are required elements of all the causes of action brought by the Plaintiff, the Defendants' motion to dismiss the Complaint is granted. The Plaintiff also requests leave to amend the Complaint in the event the Court dismisses the action for failure to state a claim. In this case, the Court concludes that amendment would be futile. When pressed at oral argument as to what amendments would be made to the Complaint were the Court to adopt the Defendants' arguments for dismissal, the Plaintiff's counsel responded only in vague terms about the possibility of clarifying or adding details to the allegations that would not change the outcome, Judge Abrams states. Absent the addition of new facts that would contradict the Defendants' public statements, Judge Abrams points out that Plaintiff cannot establish that the four categories of statements were false within the meaning of the securities laws. When assessed alongside FedEx's numerous and continuous disclosures about NotPetya, it is not plausible that the statements in question were misleading to a reasonable investor. Leave to amend is, therefore, denied as futile. For these reasons, the Defendants' motion to dismiss the Plaintiff's complaint is granted with prejudice. The Clerk of Court is directed to terminate item 80 on the docket and close this case. A full-text copy of the Court's Opinion & Order dated Feb. 4, 2021, is available at https://tinyurl.com/ybvhr725 from Leagle.com. FLO HEALTH: Faces Frasco Class Suit Over Data Disclosure Practices ------------------------------------------------------------------ ERICA FRASCO, individually and on behalf of all others similarly situated v. Flo Health, Inc., a Delaware corporation, Case No. 3:21-cv-00757-SK (N.D. Cal., Jan. 29, 2021) alleges that Flo Health's data disclosure practices constitute an extreme invasion of the Plaintiff and Class members' right to privacy and violates federal and state common law. Flo Health owns and develops the Flo Period & Ovulation Tracker ("Flo App" or "App"), one of the most popular health and fitness mobile applications. The Flo App purports to use artificial intelligence to provide advice and assistance related to women's health, such as by serving as an ovulation calendar, period tracker, pregnancy guide, and wellness and lifestyle tracker. Flo Health touts that its app is the "No. 1 mobile product for women's health." The Flo App has been installed more than 165 million times and has over 38 million monthly active users. The App has also been rated the No. 1 period tracker in the United States based on active audience and as the No. 1 most downloaded health app in the Apple App Store. In order to use the Flo App, millions of users -- including the Plaintiff -- provide Flo Health with personally identifying information, along with intimate details about their sexual health, menstruation cycles, gynecological health, and physical well-being through a series of "survey questions." Users also provided intimate, personal health details in response to probing survey questions about health and wellness. By providing this information, Flo Health claims to predict ovulation, aid in pregnancy and childbirth, and provide lifestyle and wellness suggestions, allowing users to "take full control of their health." Plaintiff and Class members provided this information to Flo Health based on the company's repeated assurances that their intimate health data would remain protected and confidential and would not be disclosed to third parties. Flo Health's privacy policies and public assurances have claimed -- time and time again -- that Flo Health would not share users' intimate health data with anyone. Flo Health's Website touts that "privacy in the digital age is of utmost importance. Flo provides a secure platform for millions of women globally." The Plaintiff contends that these assurances were patently false. In February 2019, a report published by the Wall Street Journal revealed that, despite Flo Health's promises that it would not share intimate health data, Flo Health had spent years disclosing the intimate health data that users entered into the Flo App to dozens of third parties, including major advertising companies such as Facebook, Inc. ("Facebook") and Google, LLC ("Google"), who were free to use this data for their own purposes. If Plaintiff and Class members had known that Flo Health would share their intimate health data, they would not have used the Flo App, the complaint says. Flo Health began as a startup in 2015 owned by a group of mobile app developers based in Minsk, Belarus. That same year, the company released the Flo App, the first mobile application to make use of artificial intelligence to accurately predict reproductive cycles.[BN] The Plaintiff is represented by: James M. Wagstaffe, Esq. Frank Busch, Esq. WAGSTAFFE, VON LOEWENFELDT, BUSCH & RADWICK LLP 100 Pine Street, Suite 725 San Francisco, CA 94111 Telephone: (415) 357-8900 Facsimile: (415) 357-8910 E-mail: wagstaffe@wvbrlaw.com busch@wvbrlaw.com - and - Christian Levis, Esq. Amanda Fiorilla, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 E-mail: clevis@lowey.com afiorilla@lowey.com - and - Jonathan Gardner, Esq. Carol C. Villegas, Esq. Michael P. Canty, Esq. Melissa H. Nafash, Esq. Ross M. Kamhi, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: jgardner@labaton.com cvillegas@labaton.com mcanty@labaton.com mnafash@labaton.com rkamhi@labaton.com FOGO DE CHAO: Garcia-Alvarez Labor Suit Removed to E.D. Texas ------------------------------------------------------------- The case styled CHRISTIAN GARCIA-ALVAREZ, individually and on behalf of all others similarly situated v. FOGO DE CHAO CHURRASCARIA (PITTSBURGH) LLC, FOGO DE CHAO CHURRASCARIA (KING OF PRUSSIA) LLC, FOGO DE CHAO CHURRASCARIA (PHILADELPHIA) LLC, FOGO DE CHAO CHURRASCARIA (PHOENIX) LLC, FOGO DE CHAO CHURRASCARIA (CA HOLDINGS) LLC, FOGO DE CHAO CHURRASCARIA (CALIFORNIA) LLC, FOGO DE CHAO CHURRASCARIA (EL SEGUNDO) LLC, FOGO DE CHAO CHURRASCARIA (IRVINE) LLC, FOGO DE CHAO CHURRASCARIA (LOS ANGELES) LLC, FOGO DE CHAO CHURRASCARIA (SAN DIEGO) LLC, FOGO DE CHAO CHURRASCARIA (SAN FRANCISCO) LLC, FOGO DE CHAO CHURRASCARIA (SAN JOSE) LLC, FOGO DE CHAO CHURRASCARIA (DENVER) LLC, FOGO DE CHAO CHURRASCARIA (PARK MEADOW) LLC, FOGO DE CHAO CHURRASCARIA (WASHINGTON, D.C.) LLC, FOGO DE CHAO CHURRASCARIA (JACKSONVILLE) LLC, FOGO DE CHAO CHURRASCARIA (MIAMI) LLC, FOGO DE CHAO CHURRASCARIA (ORLANDO) LLC, FOGO DE CHAO CHURRASCARIA (SUNRISE FLORIDA) LLC, FOGO DE CHAO CHURRASCARIA (ATLANTA) LLC, FOGO DE CHAO CHURRASCARIA (DUNWOODY ATLANTA) LLC, FOGO DE CHAO CHURRASCARIA (NAPERVILLE) LLC, FOGO DE CHAO CHURRASCARIA (CHICAGO) LLC, FOGO DE CHAO CHURRASCARIA (OAK BROOK ILLINOIS) LLC, FOGO DE CHAO CHURRASCARIA (OLD ORCHARD) LLC, FOGO DE CHAO CHURRASCARIA (ROSEMONT) LLC, FOGO DE CHAO CHURRASCARIA (INDIANAPOLIC) LLC, FOGO DE CHAO CHURRASCARIA (NEW ORLEANS) LLC, FOGO DE CHAO CHURRASCARIA (BALTIMORE) LLC, FOGO DE CHAO CHURRASCARIA (BETHESDA) LLC, FOGO DE CHAO CHURRASCARIA (BOSTON) LLC, FOGO DE CHAO CHURRASCARIA (BURLINGTON) LLC, FOGO DE CHAO CHURRASCARIA (TROY) LLC, FOGO DE CHAO CHURRASCARIA (MINNEAPOLIS) LLC, FOGO DE CHAO CHURRASCARIA (KANSAS CITY) LLC, FOGO DE CHAO CHURRASCARIA (ST. LOUIS) LLC, FOGO DE CHAO CHURRASCARIA (LAS VEGAS) LLC, FOGO DE CHAO CHURRASCARIA (SUMMERLIN) LLC, FOGO DE CHAO CHURRASCARIA (LONG ISLAND) LLC, FOGO DE CHAO 53RD STREET, NEW YORK LLC, FOGO DE CHAO CHURRASCARIA (WHITE PLAINS) LLC, FOGO DE CHAO CHURRASCARIA (PORTLAND) LLC, FOGO DE CHAO CHURRASCARIA (AUSTIN) LLC, FOGO DE CHAO CHURRASCARIA (LEGACY PLANO) LLC, FOGO DE CHAO CHURRASCARIA (DALLAS) LLP, FOGO DE CHAO CHURRASCARIA (DALLAS) LLC, FOGO DE CHAO (HOLDINGS) INC., FOGO DE CHAO CHURRASCARIA (HOLDINGS) LLC, FOGO DE CHAO CHURRASCARIA (HOUSTON) LLC, FOGO DE CHAO CHURRASCARIA (SAN ANTONIO) LLC, FOGO DE CHAO CHURRASCARIA (TEXAS GP) LLC, FOGO DE CHAO CHURRASCARIA (TYSONS) LLC, and FOGO DE CHAO CHURRASCARIA (BELLEVUE) INC., Case No. 2:20-cv-01345, was removed from the U.S. District Court for the Western District of Pennsylvania to the U.S. District Court for the Eastern District of Texas on February 9, 2021. The Clerk of Court for the Eastern District of Texas assigned Case No. 4:21-cv-00124-ALM to the proceeding. The case arises from the Defendants' alleged violations of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act by failing to pay the Plaintiff and all others similarly situated restaurant workers the legally required tipped minimum wage. Fogo De Chao Churrascaria (Pittsburgh) LLC is a restaurant operator based in Pittsburgh, Pennsylvania. Fogo De Chao Churrascaria (King of Prussia) LLC is a restaurant operator based in Pennsylvania. Fogo De Chao Churrascaria (Philadelphia) LLC is a restaurant operator based in Philadelphia, Pennsylvania. Fogo De Chao Churrascaria (Phoenix) LLC is a restaurant operator based in Phoenix, Arizona. Fogo De Chao Churrascaria (CA Holdings) LLC is a restaurant operator based in Plano, Texas. Fogo De Chao Churrascaria (California) LLC is a restaurant operator based in California. Fogo De Chao Churrascaria (El Segundo) LLC is a restaurant operator based in El Segundo, California. Fogo De Chao Churrascaria (Irvine) LLC is a restaurant operator based in Irvine, California. Fogo De Chao Churrascaria (Los Angeles) LLC is a restaurant operator based in Los Angeles, California. Fogo De Chao Churrascaria (San Diego) LLC is a restaurant operator based in San Diego, California. Fogo De Chao Churrascaria (San Francisco) LLC is a restaurant operator based in San Francisco, California. Fogo De Chao Churrascaria (San Jose) LLC is a restaurant operator based in San Jose, California. Fogo De Chao Churrascaria (Denver) LLC is a restaurant operator based in Denver, Colorado. Fogo De Chao Churrascaria (Park Meadow) LLC is a restaurant operator based in Park Meadow, Colorado. Fogo De Chao Churrascaria (Washington, D.C.) LLC is a restaurant operator based in Washington, D.C. Fogo De Chao Churrascaria (Jacksonville) LLC is a restaurant operator based in Jacksonville, Florida. Fogo De Chao Churrascaria (Miami) LLC is a restaurant operator based in Miami, Florida. Fogo De Chao Churrascaria (Orlando) LLC is a restaurant operator based in Orlando, Florida. Fogo De Chao Churrascaria (Sunrise Florida) LLC is a restaurant operator based in Florida. Fogo De Chao Churrascaria (Atlanta) LLC is a restaurant operator based in Atlanta, Georgia. Fogo De Chao Churrascaria (Dunwoody Atlanta) LLC is a restaurant operator based in Atlanta, Georgia. Fogo De Chao Churrascaria (Naperville) LLC is a restaurant operator based in Naperville, Illinois. Fogo De Chao Churrascaria (Chicago) LLC is a restaurant operator based in Chicago, Illinois. Fogo De Chao Churrascaria (Oak Brook Illinois) LLC is a restaurant operator based in Illinois. Fogo De Chao Churrascaria (Old Orchard) LLC is a restaurant operator. Fogo De Chao Churrascaria (Rosemont) LLC is a restaurant operator based in Rosemont, Illinois. Fogo De Chao Churrascaria (Indianapolic) LLC is a restaurant operator based in Indiana. Fogo De Chao Churrascaria (New Orleans) LLC is a restaurant operator based in New Orleans, Louisiana. Fogo De Chao Churrascaria (Baltimore) LLC is a restaurant operator based in Baltimore, Maryland. Fogo De Chao Churrascaria (Bethesda) LLC is a restaurant operator based in Bethesda, Maryland. Fogo De Chao Churrascaria (Boston) LLC is a restaurant operator based in Boston, Massachusetts. Fogo De Chao Churrascaria (Burlington) LLC is a restaurant operator based in Burlington, New Jersey. Fogo De Chao Churrascaria (Troy) LLC is a restaurant operator based in Troy, New Jersey. Fogo De Chao Churrascaria (Minneapolis) LLC is a restaurant operator based in Minneapolis, Minnesota. Fogo De Chao Churrascaria (Kansas City) LLC is a restaurant operator based in Kansas City. Fogo De Chao Churrascaria (St. Louis) LLC is a restaurant operator based in St. Louis, Minnesota. Fogo De Chao Churrascaria (Las Vegas) LLC is a restaurant operator based in Las Vegas, Nevada. Fogo De Chao Churrascaria (Summerlin) LLC is a restaurant operator based in Summerlin, Nevada. Fogo De Chao Churrascaria (Long Island) LLC is a restaurant operator based in Long Island, New York. Fogo De Chao 53rd Street, New York LLC is a restaurant operator based in New York. Fogo De Chao Churrascaria (White Plains) LLC is a restaurant operator based in White Plains, New York. Fogo De Chao Churrascaria (Portland) LLC is a restaurant operator based in Portland, Oregon. Fogo De Chao Churrascaria (Austin) LLC is a restaurant operator based in Austin, Texas. Fogo De Chao Churrascaria (Legacy Plano) LLC is a restaurant operator based in Plano, Texas. Fogo De Chao Churrascaria (Dallas) LLP is a restaurant operator based in Dallas, Texas. Fogo De Chao Churrascaria (Dallas) LLC is a restaurant operator based in Dallas, Texas. Fogo De Chao (Holdings) Inc. is a restaurant holding company. Fogo De Chao Churrascaria (Holdings) LLC is a restaurant holding company. Fogo De Chao Churrascaria (Houston) LLC is a restaurant operator based in Houston, Texas. Fogo De Chao Churrascaria (San Antonio) LLC is a restaurant operator based in San Antonio, Texas. Fogo De Chao Churrascaria (Texas GP) LLC is a restaurant operator based in Texas. Fogo De Chao Churrascaria (Tysons) LLC is a restaurant operator based in Tysons, Virginia. Fogo De Chao Churrascaria (Bellevue) Inc. is a restaurant operator based in Bellevue, Washington. [BN] The Plaintiff is represented by: Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave Pittsburgh, PA 15212 Telephone: (412) 766-1455 Facsimile: (412) 766-0300 E-mail: josh@goodrichandgeist.com - and – Carlos V. Leach, Esq. THE LEACH FIRM, P.A. 631 S. Orlando Ave, Suite 300 Winter Park, FL 32789 Telephone: (407) 574-4999 Facsimile: (833) 423-5864 E-mail: cleach@theleachfirm.com - and – Richard Celler, Esq. RICHARD CELLER LEGAL, P.A. 10368 W. SR 84, Suite 103 Davie, FL 33314 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 E-mail: richard@floridaovertimelawyer.com FORD MOTOR: Still Faces Class Action Over Fuel Economy Testing -------------------------------------------------------------- Associated Press reports that the U.S. Justice Department and state of California have ended investigations into Ford's gas mileage and emissions certification processes. Ford says in its annual report filed with the Securities and Exchange Commission on Feb. 5 that the DOJ and the California Air Resources Board told the company they don't intend to take further action. But the filing says probes by the U.S. Environmental Protection Agency and its Canadian counterpart are continuing. In 2018 a group of Ford employees reported possible problems with a mathematical model used to calculate pollution and mileage, prompting Ford to hire an outside firm to run tests. In 2019 Ford launched an investigation into whether it overstated gas mileage and understated emissions from a wide range of vehicles. The company disclosed the matter to the EPA and CARB. The Justice Department later opened the criminal investigation. Ford said in a statement on Feb. 5 that the DOJ and CARB findings are "consistent with the company's own investigation and conclusion that we appropriately completed our certification processes." Ford declined to releasing findings from its own investigation and said it has not changed any fuel economy ratings as a result. Ford faces a class-action lawsuit from owners who claim Ford "cheated on its fuel economy testing on some of its best-selling and most popular trucks" and said the issue affected over a million Ford truck owners. The lawsuit claims that "independent testing conducted on Ford F-150 and Ford Ranger vehicles has vindicated the concerns of both consumers and Ford's own employees: Ford did not follow appropriate coastdown testing procedures, and instead disclosed inaccurate resistance figures to increase the MPG Rating of its F-150 and Ranger vehicles." Coastdown testing measures the effects of wind and road resistance on a coasting vehicle. The lawsuit said "extra fuel costs for all 2018 and 2019 F-150s" would total approximately $2.32 billion for city driving, $2.09 billion highway, and $1.9 billion combined." Ford declined to comment on the lawsuit on Feb. 5 but argues in court papers it should be dismissed, saying owners are "implausibly claiming that Ford had a duty to disclose the 'true fuel economy' for the subject vehicles, as if such a figure actually exists." [GN] FORTUNE MEDIA: Blind Users Can't Access Website, Sanchez Claims --------------------------------------------------------------- CHRISTIAN SANCHEZ, on behalf of himself and all others similarly situated v. FORTUNE MEDIA (USA) CORPORATION, Case No. 1:21-cv-00938 (S.D.N.Y., Feb. 2, 2020) alleges that the Defendant 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 people. The Plaintiff contends that the Defendant's denial of full and equal access to its Website, www.fortune.com, and therefore denial of its products and services offered thereby, is a violation of the Plaintiff's rights under the Americans with Disabilities Act. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read Website content using her computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet their definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. The Defendant offers the commercial Website to the public. The Website offers features which should allow all consumers to access the goods and services whereby the Defendant allows for the delivery of those ordered goods to consumers throughout the United States, including New York State. The goods and services offered by Defendant include, the ability to browse magazines for purchase and delivery, view podcasts, obtain the defendant's contact information, and related goods and services available online.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal FRANKLIN COLLECTION: Wormley Files TCPA Suit in N.D. Texas ---------------------------------------------------------- A class action lawsuit has been filed against Franklin Collection Service Inc. The case is styled as Brianna Wormley, individually and on behalf of all others similarly situated v. Franklin Collection Service Inc., Case No. 4:21-cv-00154-O (N.D. Tex., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Franklin Collection Service, Inc. -- https://franklinservice.com/ -- provides collection and adjustment services.[BN] The Plaintiff is represented by: Frank Hershell Harber, III, Esq. HARBER LAW GROUP 771 E Southlake Blvd., Suite 111 Southlake, TX 76092 Phone: (817) 523-1611 Fax: (682) 237-2184 Email: frank@harberlawgroup.com - and - Ignacio Javier Hiraldo, Esq. IJH LAW 1200 Brickell Avenue, Suite 1950 Miami, FL 33131 Phone: (786) 496-4469 Fax: (786) 628-9291 Email: ijhiraldo@ijhlaw.com FROM NOTHING: Jaquez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against From Nothing, LLC. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. From Nothing, LLC, Case No. 1:21-cv-01252 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. From Nothing, LLC (FILA Skateboarding) -- http://www.fromnothingllc.com/-- offers athletic shoes for men.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com G95 INC: Faces Tatum-Rios ADA Suit in Southern District of New York ------------------------------------------------------------------- A class action lawsuit has been filed against G95 Inc. The case is captioned as Lynette Tatum-Rios v. G95 Inc., Case No. 1:21-cv-00853-ALC (S.D.N.Y., Jan. 29, 2021). The suit alleges violation of the Americans with Disabilities Act. The case is assigned to the Hon. Judge Andrew L. Carter, Jr. G95 manufactures medical-grade safety masks. The company is also the maker of the Bioscarf, a sustainable alternative to disposable face masks.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com GENERAL ELECTRIC: 2nd Cir. Affirms Dismissal of Varga ERISA Suit ---------------------------------------------------------------- The United States Court of Appeals for the Second Circuit affirmed the district court's judgment in the lawsuit titled ADELE VARGA, Individually and on Behalf of all others Similarly Situated, Plaintiff-Appellant v. GENERAL ELECTRIC COMPANY, JEFFREY ROBERT IMMELT, Defendants-Appellees, Case No. 20-1144-cv (2nd Cir.). Varga appeals from so much of the March 5, 2020 judgment of the U.S. District Court for the Northern District of New York (Sharpe, J.) as dismissed her putative class action complaint alleging that GE and Immelt failed to exercise their fiduciary duty of prudence to the participants of the GE Retirement Savings Plan in violation of the Employee Retirement Income Security Act ("ERISA"). Varga, a GE employee, participates in GE's 401(k) retirement plan. One of the 401(k)'s options is a GE Stock Fund, an employee stock option plan that invests almost entirely in GE stock. Varga invested in the GE Stock Fund in her 401(k) account. Varga's complaint alleges that in January 2018, GE announced the liabilities of its two insurance subsidiaries were under reserved by approximately $15 billion and that, in addition to $3.5 billion in contributions already made to shore up those reserves at the end of 2017, it anticipated the need to contribute several billion dollars. Following that announcement, GE's stock price decreased. Varga alleges that (1) GE's reinsurance subsidiaries plainly did not provide for adequate reserves for years, and GE and Immelt should have known of such shortcomings by 2009, or thereafter; and (2) GE failed to take corrective action to protect GE Stock Fund participants, either by closing the Fund to future participants, or publicly disclosing the underfunding by the close of 2009, or shortly thereafter. The allegations in Varga's complaint are similar to those made in a 2006 putative class action brought by participants in the GE Stock Fund, Cavalieri v. General Electric Company, No. 06cv315, 2009 WL 2426001 (N.D.N.Y. Aug. 6, 2009). The Cavalieri lawsuit also alleged that GE and others failed in their fiduciary obligations by continuing to maintain the GE Stock Fund as a 401(k) plan choice "even though they knew that the value was inflated by GE improperly under reserving for the insurance liabilities by $5 billion to $10 billion." The Cavalieri lawsuit settled in 2009. The district court dismissed Varga's lawsuit for failure to state a claim that satisfied the pleading standards set forth in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014). The appeal followed. On appeal, Varga argues that the district court erred in dismissing her breach of the duty of prudence claim because, among other things, she adequately pleaded alternative actions that the fiduciaries could have taken that "would have protected the plan and its participants." Her complaint lays out two alternative actions the fiduciaries could have taken, "earlier disclosure and closure of the fund to additional investment." As to the first alternative, Varga argues that a prudent fiduciary could not have concluded that disclosure would do more harm than good because GE's previous disclosures related to its insurance subsidiaries did not trigger a stock drop, and economic studies have shown that delayed disclosure triggers more severe stock drops. As to the second alternative, she argues that the 2009 settlement of Cavalieri "gave the fiduciaries a tailor-made pathway for closing the fund" without arousing concern from outside investors. She argues that these alternatives are on par with those found sufficient in Jander v. Retirement Plans Committee of IBM, 910 F.3d 620 (2d Cir. 2018). The Appellate Court disagrees. The district court concluded that Varga failed to adequately plead alternative actions that the fiduciaries "could not have concluded would do more harm than good." On appeal, Varga does not challenge the "could not" standard, instead arguing that Jander: provides clear and detailed guidance on the correct approach district courts within the circuit must take when assessing whether a complaint's allegations state a duty of-prudence claim under ERISA because a prudent fiduciary could not have concluded that corrective disclosure would do more harm than good. Though Varga contends that prolonged failure to disclose would only increase the reputational damages once the issue was inevitably disclosed, the district court correctly observed that Varga fails to allege any similar major triggering event to the impending sale in Jander that would make GE's eventual disclosure inevitable and instead relies on a general allegation that since other insurers with under-funded long-term care liabilities inevitably had to disclose their problems, GE would have to as well, the Appellate Court notes. It says, Varga's suggestion that the fiduciaries could have closed the fund in 2009 is similarly conclusory, unsupported by any factual matter suggesting that the fiduciaries could not have concluded that such an action would do more harm than good. Because it concludes that Varga failed to adequately plead alternative actions that the fiduciaries could have taken, the Appellate Court need not address Varga's additional argument that the district court erred in concluding that Varga failed to adequately plead the fiduciaries knew or should have known about the shortfall in reserves. The Appellate Court has considered the remainder of Varga's arguments and finds them to be without merit. Accordingly, the order of the district court is affirmed. A full-text copy of the Court's Summary Order dated Feb. 4, 2021, is available at https://tinyurl.com/4xrps3yo from Leagle.com. Matthew W. H. Wessler -- matt@guptawessler.com -- Gupta Wessler PLLC, in Washington, D.C., Appearing for the Appellant. Charles J. Crueger -- cjc@cruegerdickinson.com -- Crueger Dickinson LLC, in Whitefish Bay, Wisconsin (on the brief). Tyler W. Hudson -- thudson@wcllp.com -- Wagstaff & Cartmell LLP, in Kansas City, Missouri (on the brief). Jaime A. Santos -- jsantos@goodwinlaw.com -- Goodwin Procter LLP, (James O. Fleckner -- jfleckner@goodwinlaw.com -- Benjamin Hayes -- bhayes@goodwinlaw.com -- on the brief), in Washington, D.C., Appearing for the Appellee. GENERAL MOTORS: Goldstein's Claims in 2nd Amended Suit Narrowed --------------------------------------------------------------- In the case, GOLDSTEIN, et al., Plaintiffs v. GENERAL MOTORS LLC, Defendant, Case No. 3:19-cv-1778-JLS-AHG (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California granted in part and denied in part the Defendant's Motion to Dismiss Plaintiffs' Second Amended Class Complaint. On May 13, 2020, the Plaintiffs filed SAC in the putative class action against the Defendant. The Plaintiffs are six purchasers of new and used Cadillacs in the State of California. They allege, among other things, purported breaches of express and implied warranties and violations of various consumer protections laws based on allegedly defective Cadillac User Experience ("CUE") navigation and radio touch screen displays in 2013-2017 Cadillac ATS, SRX, and XTS vehicles and 2014-2017 Cadillac CTS, ELR, and Escalade vehicles. The Plaintiffs seek to represent all persons and entities who purchased or leased a Class Vehicle equipped with the Defendant's CUE touch screen display in the state of California. Additionally, they seek to represent a Consumers Legal Remedies Act ("CLRA") Sub-Class of "all members of the Class who are 'consumers' within the meaning of California Civil Code Section 1761(d)." The CUE "infotainment" system is an audio/visual interface comprised of a touch screen module that provides "entertainment and information delivery to drivers." The CUE controls the audio, phone, and climate inputs for the car and displays the rear-view camera when the vehicle is in reverse. The CUE is made of two major components: a projected capacitance touch screen and a plastic cover. The Plaintiffs allege that the CUE is defective. They allege that the "plastic cover is prone to delaminating or separating from the touch screen glass due to either mechanical or thermal stress. When the plastic cover separates, the Plaintiffs allege it causes a "spider-web-like pattern on the display" to form, which in turn prevents the CUE from recognizing any touch input from a user. The Plaintiffs allege that the CUE is "defectively designed" because of the placement of the screws and rubberized gasket that hold the plastic cover to the frame of the CUE. They allege that the Defendant "knew, or should have known, about the Defect." Similarly, they allege that Defendant was aware of the Defect because of complaints made "by consumers on internet forums" that the Defendant allegedly monitored. Lastly, the Plaintiffs allege that the Defendant was aware of the Defect "based on the large number of repairs performed to the CUE System's exhibiting delamination and spiderwebbing at its network of dealerships." The Defendant moves to dismiss the Plaintiffs' SAC for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Judge Sammartino granted in part and denied in part the Defendant's Motion to Dismiss. Specifically, she rules as follows: 1. The Defendant's motion to dismiss the Plaintiffs' UCL claim (Count 4) is granted. 2. The Defendant's motion to dismiss Plaintiffs' CLRA claim (Count 1) is granted as to Plaintiffs Uyenoyama, Wilder, and Sutton, and denied as to Plaintiffs Goldstein, Rodriguez, and Guzman. 3. The Defendant's motion to dismiss the Plaintiffs' fraudulent concealment claim (Count 5) is granted. 4. The Defendant's motion to dismiss Plaintiffs' implied warranty claims (Counts 2 and 3) is denied as to Plaintiffs Goldstein, Sutton, Rodriguez, and Guzman, and granted as to Plaintiffs Uyenoyama and Wilder. 5. The Defendant's motion to dismiss Plaintiffs' unjust enrichment claim (Count 6) is granted. Among other things, Judge Sammartino dismissed the Plaintiffs' UCL claim for failure to adequately plead that they have no adequate remedy at law. The Plaintiffs have failed to allege that they and the members of the putative class will be irreparably harmed or denied an adequate remedy at law in the absence of equitable relief. Judge Sammartino also dismissed the Plaintiffs' fraudulent concealment claim. She explains that under the economic loss doctrine, "plaintiffs may recover in tort for physical injury to person or property, but not for `purely economic losses that may be recovered in a contract action,'" citing Lusinyan v. Bank of Am., N.A., No. CV-14-9586 DMG (JCX), 2015 WL 12777225, at *4 (C.D. Cal. May 26, 2015) (quoting S.F. Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal.App.4th 1318, 1327 (1995)). Fraud claims based on affirmative misrepresentations may not be subject to the economic loss rule. The Plaintiffs have not alleged affirmative misrepresentations. The economic loss doctrine therefore bars their fraudulent concealment claim. The Plaintiffs' unjust enrichment claim is dismissed beause similar to their UCL claim, the Plaintiffs have failed to show entitlement to equitable relief, Sammartino finds. The Plaintiffs do not allege that their legal claims would not provide them with an adequate remedy. All claims dismissed in the Order are dismissed without prejudice. The Plaintiffs may file an Amended Complaint within 30 days of the date on which the Order is electronically docketed. A full-text copy of the Court's Feb. 3, 2021 Order is available at https://tinyurl.com/opwmj946 from Leagle.com. GENERAL MOTORS: Walker Files Suit in E.D. Michigan -------------------------------------------------- A class action lawsuit has been filed against General Motors LLC. The case is styled as Shawn Walker, on behalf of himself and all others similarly situated v. General Motors LLC, Case No. 2:21-cv-10324-AJT-APP (E.D. Mich., Feb. 11, 2021). The nature of suit is stated as Motor Vehicle Product Liability. General Motors Company -- https://www.gm.com/ -- is an American multinational corporation headquartered in Detroit that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services, with global headquarters in Detroit's Renaissance Center.[BN] The Plaintiff is represented by: Gretchen Freeman Cappio, Esq. KELLER ROHRBACK LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Phone: (206) 623-1900 Fax: (206) 623-3384 Email: gcappio@kellerrohrback.com GODADDY INC: Pinto Appeals Ruling in Drazen TCPA Suit to 11th Cir. ------------------------------------------------------------------ Objector Juan Enrique Pinto filed an appeal from a court ruling entered in the lawsuit entitled SUSAN DRAZEN, individually and on behalf of all others similarly situated, Plaintiff v. GODADDY.COM, LLC, Defendant, Case No. 1:19-cv-00563-KD-B, in the U.S. District Court for the Southern District of Alabama. As previously reported in the Class Action Reporter, the Plaintiff files this lawsuit for damages, and other legal and equitable remedies, resulting from the illegal actions of GODADDY.COM, LLC in negligently, knowingly, and/or willfully contacting Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act. Objector Pinto, a class member who formally challenges a proposed class action settlement on the ground that the settlement is not in the best interests of some or all of the class members, reiterated his arguments set forth in his objection to settlement and amount of attorneys' fees. He argued in part that this is a coupon settlement under the Class Action Fairness Act and that the requested attorneys' fees are too high and disproportionately benefit Class counsel instead of the Class. Pinto asked that the settlement either be amended to assuage his expressed concerns, or in the alternative be disapproved. Mr. Pinto files this petition seeking review of the Court's Order dated December 23, 2020, granting Motion to Approve Settlement Agreement Plaintiffs' Motion & Memorandum in Support of Final Approval of Class Action Settlement filed by Drazen. The Court approves the class action settlement as fair, reasonable, and not the result of collusion. The Court further certifies this action as a class action pursuant to Federal Rules of Civil Procedure 23(b)(3). The appellate case is captioned as Susan Drazen v. Juan Pinto, Case No. 21-10199, in the United States Court of Appeals for the Eleventh Circuit, January 19, 2021. The briefing schedule in the Appellate Case states that: -- Appellant's Certificate of Interested Persons was due on February 2, 2021 as to Appellant Juan Enrique Pinto; and -- Appellee's Certificate of Interested Persons is due on or before February 16, 2021 as to Appellee Susan Drazen.[BN] Plaintiff-Appellee SUSAN DRAZEN, on behalf of herself and other persons similarly situated, is represented by: John R. Cox, Esq. LAW OFFICE OF JOHN R. COX 9786-A Timber Cir Spanish Fort, AL 36527 Telephone: (251) 517-4753 E-mail: federalcourt.notices.jrclegal@gmail.com - and - Robert M. Hatch, Esq. BOCK HATCH LEWIS & OPPENHEIM, LLC 134 N Lasalle St Ste 1000 Chicago, IL 60602 Telephone: (312) 658-5500 E-mail: shinhatch@outlook.com - and - Evan Meyers, Esq. Yevgeniy Y. Turin, Esq. MCGUIRE LAW, PC 55 W Wacker Dr Fl 9 Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: emeyers@mcgpc.com - and - Kenneth J. Riemer, Esq. KENNETH J. RIEMER ATTORNEY AT LAW PO BOX 1206 Mobile, AL 36633 Telephone: (251) 432-9212 E-mail: kriemer01@gmail.com - and - Earl Price Underwood, Jr., Esq. UNDERWOOD & RIEMER, PC 21 S Section St Fairhope, AL 36532-2206 Telephone: (251) 990-5558 E-mail: epunderwood@gmail.com Movant-Appellant JUAN ENRIQUE PINTO is represented by: Robert William Clore, Esq. BANDAS LAW FIRM, PC 802 N Carancahua Ste 1400 Corpus Christi, TX 78401 Telephone: (361) 698-5200 - and - Thomas Jefferson Deen, III, Esq. DEENLAW, PC 207 Church St Mobile, AL 36602 Telephone: (251) 433-5860 GOOGLE LLC: Mikula Web Sues Over Monopoly of Display Ad Stack ------------------------------------------------------------- MIKULA WEB SOLUTIONS, INC., individually and on behalf of all others similarly situated v. GOOGLE LLC, Case No. 5:21-cv-00810 (N.D. Calif. Feb. 2, 2021) is brought on behalf of the Plaintiff and on behalf of similarly situated publishers that sold digital Display Ad inventory through Google's AdSense targeting consumers in the United States since March 11, 2008, seeking treble damages and injunctive relief for Google's longstanding and continuing violations of sections 1 and 2 of the Sherman Act. The case arises out of Google's exclusionary and anticompetitive campaign to obtain and maintain monopolies in several distinct, but closely related, relevant markets, including (a) publisher ad server services ("Publisher Ad Servers"); (b) display ad network services ("Ad Networks"); (c) display ad exchanges ("Exchanges"); and (d) display ad buying tools ("Ad Buying Tools") (collectively, the "Relevant Markets"). These markets constitute what is referred to as the "Display Ad Stack." While Google got its start in Search, today it is an advertising company. Google makes billions of dollars a year by collecting information about individual Internet users and then using that information to help advertisers find suitable persons to whom they can send direct, targeted ads. Google obtains user information from a number of sources, including through its Google Search service and Chrome web browser. Thanks to these and other Google offerings, Google knows when individual users log on, the Websites they visit, the things they search for, the products they buy, and other valuable information. Google has engaged in anticompetitive conduct that created and entrenched its market power at all levels of the Display Ad Stack, the suit says. As a result, Google has control over a dominant share of the Display Ad inventory on which advertisers will bid as well as over which advertisers can participate in the most significant auctions and how publishers prioritize and compare different sources to identify the advertiser that will ultimately "win" the right to place an ad in a particular ad slot, the Plaintiff adds. Display Ads are ads that appear on a Website, often in a side window or some other designated space on the page. The suppliers of that ad space -- usually the owner of the Website -- are generally referred to as "publishers." Because many publishers rely on Display Ads as an important source of funds for their businesses, the price at which they can sell space on their pages is critical. Mikula Web Solutions is a small business incorporated in Pennsylvania with its principal place of business in Doylestown, Pennsylvania. The Plaintiff assists small and medium sized business with complete Website development solutions including Website design, e-commerce, database applications, online marketing solutions, and Website hosting. As part of that, Mikula Web Solutions, Inc. sells digital Display Ad inventory through Google. As a direct result of Google's alleged unlawful, exclusionary conduct, Mikula Web Solutions has been paid lower-than-competitive rates for its digital Display Ad inventory. Google is a Delaware corporation with its principal place of business in Mountain View, California. Google is owned by Alphabet Inc., a publicly traded company incorporated and existing under the laws of the State of Delaware and headquartered in Mountain View, California. Google engages in, and its activities substantially affect, interstate trade and commerce. Google provides a range of products and services that are marketed, distributed, and offered to consumers throughout the United States and internationally.[BN] The Plaintiff is represented by: Dennis Stewart, Esq. Daniel E. Gustafson, Esq. Daniel C. Hedlund, Esq. Daniel J. Nordin, Esq. Ling S. Wang, Esq. GUSTAFSON GLUEK PLLC 600 B Street, 17th Floor San Diego, CA 92101 Telephone: (619) 595-3299 E-mail: dstewart@gustafsongluek.com Daniel E. Gustafson, Esq. Daniel C. Hedlund, Esq. Daniel J. Nordin, Esq. Ling S. Wang, Esq. - and - Marc H. Edelson, Esq. EDELSON LECHTZIN LLP 3 Terry Drive, Suite 205 Newtown, PA 18940 Telephone: (215) 867-2399 Facsimile: (267) 685-0676 E-mail: medelson@edelson-law.com - and - Joshua H. Grabar, Esq. GRABAR LAW OFFICE One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (267) 507-6085 Facsimile: (267) 507-6048 jgrabar@grabarlaw.com - and - E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Emily E. Hughes, Esq. THE MILLER LAW FIRM, P.C. 950 West University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 Facsimile: (248) 652-2852 E-mail: epm@millerlawpc.com ssa@millerlawpc.com eeh@millerlawpc.com - and - Simon Bahne Paris, Esq. Patrick Howard, Esq. SALTZ, MONGELUZZI & BENDESKY, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Telephone: (215) 496-8282 Facsimile: (215) 496-0999 E-mail: sparis@smbb.com phoward@smbb.com - and - Kenneth A. Wexler, Esq. Kara A. Elgersma, Esq. WEXLER WALLACE LLP 55 West Monroe Street, Suite 3300 Chicago, IL 60603 E-mail: kaw@wexlerwallace.com kae@wexlerwallace.com - and - Dianne M. Nast, Esq. Daniel N. Gallucci, Esq. Joseph N. Roda, Esq. NASTLAWLLC 1101 Market Street, Suite 2801 Philadelphia, PA 19106 E-mail: dnast@nastlaw.com dgallucci@nastlaw.com jnroda@nastlaw.com GOOGLE LLC: Paige Antitrust Suit Transferred to N.D. California --------------------------------------------------------------- The case styled J. JACKSON PAIGE, individually and on behalf of all others similarly situated v. GOOGLE LLC and ALPHABET INC., Case No. 1:20-cv-03158, was transferred from the U.S. District Court for the District of Columbia to the U.S. District Court for the Northern District of California on February 8, 2021. The Clerk of Court for the Northern District of California assigned Case No. 3:21-cv-00977-JD to the proceeding. The case arises from the Defendants' alleged monopolization of the U.S. market for mobile apps and in-app purchases by coercing the purchase of Android Mobile Apps and in-app products and services at artificial prices and by their patently exclusionary conduct in violations of the Sherman Act. Google LLC is a technology company that provides internet-related services and products, with its principal place of business in Mountain View, California. Alphabet Inc. is an American multinational conglomerate with its principal place of business in Mountain View, California. [BN] The Plaintiff is represented by: Jonathan W. Cuneo, Esq. Victoria Sims, Esq. Blaine Finley, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave., NW Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 E-mail: jonc@cuneolaw.com vicky@cuneolaw.com bfinley@cuneolaw.com - and – Gerard V. Mantese, Esq. MANTESE HONIGMAN, P.C. 1361 E. Big Beaver Road Troy, MI 48083 Telephone: (248) 457-9200 Facsimile: (248) 457-9201 E-mail: gmantese@manteselaw.com GT JAPAN: Cavallero Sues Over Mislabeled Vanilla Ice Cream ---------------------------------------------------------- MICHAEL CAVALLERO, individually and on behalf of all others similarly situated, Plaintiff v. G.T JAPAN, INC., Defendant, Case No. 7:21-cv-01077 (S.D.N.Y., Feb. 7, 2021) alleges that the Defendant manufactures, distributes, markets, labels and sells mochi ice cream under the Maeda-En brand represented as flavored only by vanilla and not containing any artificial flavors ("Product"). According to the complaint, the Defendant's representations of "Vanilla" and no mention of artificial flavor give consumers the impression they are buying a premium product with only natural flavoring ingredients from the characterizing vanilla ingredient. The Plaintiff and Class Members purchased the Product because they reasonably believed it was flavored only with natural ingredients like vanilla and did not contain artificial flavors. As a result of the false and misleading representations, the Product is sold at a premium price, approximately no less than no less than $6.99 for boxes of six 2 OZ pieces, excluding tax, compared to other similar products represented in a non-misleading way, and higher than it would be sold for absent the misleading representations, the suit says. G.t Japan, Inc. is located in Irvine, California and is part of the food wholesalers industry. [BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cutter Mill Rd Ste 409 Great Neck, NY 11021-3104 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com HACHETTE BOOK: Five Defendants Named in E-Book Price-Fixing Suit ---------------------------------------------------------------- Katherine Cowdrey, writing for The Bookseller, reports that US publishing's Big Five - Hachette, HarperCollins, Macmillan, Penguin Random House and Simon & Schuster - have now been named as defendants in an amended class suit originally brought against Amazon alone for anti-competitive behaviour in relation to e-books in the US. A class action complaint was initially filed mid January against Amazon, claiming that Amazon.com, the defendant, had "agreed to price restraints" with the five publishers, then described as "co-conspirators", causing consumers to "overpay" for e-books. [GN] HEALTH INSURANCE: Appointment of LKLSG, TDF as Class Counsel Sought ------------------------------------------------------------------- In the class action lawsuit captioned as ELIZABETH E. BELIN, et al., v. HEALTH INSURANCE INNOVATIONS, INC., et al., Case No. 0:19-cv-61430-AHS (S.D. Fla.), the Lead Plaintiff asks the Court to enter an order: 1. appointing Levine Kellogg Lehman Schneider Grossman LLP and The Doss Firm as Co-Lead Class Counsel; or 2. amending the Order on Motion for Class Certification by adding a sentence to the Order's Conclusion stating words to the effect that "The Court appoints Levine Kellogg Lehman Schneider + Grossman LLP and The Doss Firm as Co- Lead Class Counsel." On February 1, 2021, this Court certified a class and appointed named plaintiffs as Class Representatives (Lead Plaintiffs). As the Court is aware, the Firms represent Lead Plaintiffs and have prosecuted this case from its inception. Lead Plaintiffs move this Court to appoint LKLSG and TDF as Co-Lead Class Counsel on behalf of all others similarly situated pursuant to Federal Rule of Civil Procedure 23(g). LKLSG and TDF spent hundreds of pre-suit hours identifying and investigating the claims in this action, and thousands more to prosecute lawsuit since its filing in June 2019, the Plaintiffs say. Health Insurance Innovations is a product agnostic insurance technology platform. A copy of the Plaintiffs' motion dated Feb. 3, 2020 is available from PacerMonitor.com at https://bit.ly/3tPwm3w at no extra charge.[CC] The Plaintiffs are represented by: Jason Kellogg, Esq. Jeffrey C. Schneider, Esq. Lawrence A. Kellogg, Esq. Jason K. Kellogg, Esq. Victoria J. Wilson, Esq. LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP 201 South Biscayne Boulevard Citigroup Center, 22nd Floor Miami, FL 33131 Telephone: (305) 403-8788 Facsimile: (305) 403-8789 E-mail: vjw@lklsg.com acd@lklsg.com jcs@lklsg.com ah@lklsg.com jk@lklsg.com ah@lklsg.com lak@lklsg.com ah@lklsg.com - and - Jason R. Doss, Esq. THE DOSS FIRM, LLC The Brumby Building 127 Church Street, Suite 220 Marietta, GA 30060 Telephone: (770) 578-1314 Facsimile: (770) 578-1302 E-mail: jasondoss@dossfirm.com HIGHMARK BCBSD: Pennsylvania Court Denies Walker's Bid to Remand ---------------------------------------------------------------- In the lawsuit titled CHRISTOPHER JAMES WALKER, Plaintiff v. HIGHMARK BCBSD HEALTH OPTIONS, INC., Defendant, Case No. 2:20-CV-01975-CCW (W.D. Pa.), the U.S. District Court for the Western District of Pennsylvania denied the Plaintiff's Motion to Remand. In the putative class action lawsuit, the Plaintiff alleges that the Defendant violated the Telephone Consumer Protection Act ("TCPA") by placing unsolicited automated/pre-recorded calls to the Plaintiff's and putative class members' cellphones without those individuals' consent. The Plaintiff originally filed this action in the Court of Common Pleas of Allegheny County on November 30, 2020. The Defendant accepted service of the Complaint on December 9, 2020, and thereafter timely removed the case to the Court on December 21, 2020. On January 27, 2021, one day after the Defendant filed a motion to dismiss, in part, the Plaintiff's Complaint for lack of subject matter jurisdiction, the Plaintiff filed his Motion to Remand. In his Motion, the Plaintiff argues that the Defendant's Notice of Removal is deficient because it "fails to establish jurisdiction under Article III, Section 2 of the Constitution." In particular, the Plaintiff contends that the Defendant, as the party invoking the jurisdiction of this Court, has not demonstrated that the Complaint satisfies the injury in fact requirement for Article III standing. Therefore, because "any doubts regarding a federal court's jurisdiction are resolved in favor of remand," he claims that "conflicting opinions of federal court cases addressing Article III standing in TCPA cases" mandate remand their case. In opposition, the Defendant points out that in removing the case to federal court it invoked the Court's federal question jurisdiction under 28 U.S.C. Section 1331 because the Plaintiff alleges in his Complaint that itt violated the TCPA. It also argues that, even if the Plaintiff succeeds in having the case remanded for lack of jurisdiction, the case would become removable again as soon as the Plaintiff responds to discovery requests regarding damages. As such, and in the interest of judicial economy, the Defendant contends that the Plaintiff's Motion to Remand should be denied. Applying the analysis and holding of Susinno v. Work Out World, Inc., 862 F.3d 346 (3d Cir. 2017) to the present case, the Court finds that the Plaintiff has standing under Article III. It says the Plaintiff's Complaint alleges multiple violations of the TCPA by the Defendant, including six specifically alleged instances of unsolicited, pre-recorded calls and/or voicemail messages to the Plaintiff's cellphone from September through November 2020. And, although he does not explicitly claim that these calls were an invasion of privacy, the Complaint states that the Plaintiff was never a customer of the Defendant and "he never provided consent to Defendant for the calls and does not know how Defendant obtained his number," thereby implicating his privacy interests. Thus, under the reasoning of the Susinno court--which found one call and one voicemail message sufficient to confer standing--the Plaintiff has alleged injuries that are both clearly delineated by the statute and closely related to a harm traditionally recognized at common law, District Judge Christy Criswell Wiegand opines. Therefore, the injury in fact element of standing is apparent from the face of the Complaint. Furthermore, although not challenged, the Court also notes that the Complaint plainly satisfies the remaining standing elements: the alleged TCPA violations are attributed to the Defendant making unsolicited, pre-recorded calls to the Plaintiff's cellphone and the alleged injury is redressable through statutory and--if the violations are proven to have been willful--treble damages. Accordingly, and because the alleged violations of the TCPA clearly implicate federal question jurisdiction under 28 U.S.C. Section 1331, the Court concludes that it has subject matter jurisdiction over the case. For these reasons, the Plaintiff's Motion to Remand is denied. A full-text copy of the Court's Memorandum Opinion and Order dated Feb. 4, 2021, is available at https://tinyurl.com/127sirm3 from Leagle.com. HOMEGOODS INC: Blumenthal Nordrehaug Files Labor Class Action ------------------------------------------------------------- The San Francisco employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Homegoods, Inc., alleging the company violated the California Labor Code. The lawsuit against Homegoods, Inc., is currently pending in the Contra Costa County Superior Court, Case No. C21-00037. According to the lawsuit filed, Homegoods, Inc. allegedly (a) failed to pay minimum wages, (b) failed to pay overtime wages, (c) failed to provide legally required meal and rest periods, (d) failed to provide accurate itemized wage statements, (e) failed to reimburse employees for required business expenses, and (f) failed to provide wages when due, all in violation of the applicable Labor Code sections listed in Labor Code Sections Sections 201, 202, 203, 226, 226.7, 510, 512, 1194, 1197, 1197.1, 2802, and the applicable Wage Order(s), and thereby gives rise to civil penalties as a result of such alleged conduct. Cal. Lab. Code Sec. 226 provides "that every employer shall furnish each of his or her employees with an accurate itemized wage statement in writing showing . . . the corresponding amount of time worked at each hourly rate." From time to time, DEFENDANT allegedly failed to provide wage statements to employees that identified the correct gross and net wages earned, which resulted in DEFENDANT allegedly violating Cal. Lab. Code Sec. 226. If you would like to know more about the Homegoods, Inc. lawsuit, please contact Attorney Nicholas J. De Blouw today by calling (800) 568-8020. Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, Santa Clara County, Orange County and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] HYDROBUILDER LLC: Williams Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Hydrobuilder LLC. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Hydrobuilder LLC, Case No. 1:21-cv-01265 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Hydrobuilder.com -- https://hydrobuilder.com/ -- is an online retailer for all of indoor and outdoor gardening needs.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal IRHYTHM TECHNOLOGIES: Thornton Law Reminds of April 2 Deadline -------------------------------------------------------------- The Thornton Law Firm on Feb. 7 disclosed that a class action lawsuit has been filed on behalf of investors of iRhythm Technologies, Inc. (NASDAQ: IRTC). The case is currently in the lead plaintiff stage. Investors who purchased IRTC stock or other securities between August 4, 2020 and January 28, 2021 may contact the Thornton Law Firm's investor protection team by visiting www.tenlaw.com/cases/iRhythm to submit their information. Investors may also email investors@tenlaw.com or call 617-531-3917. FOR MORE INFORMATION: www.tenlaw.com/cases/iRhythm The complaint alleges that iRhythm and its senior executive made misleading statements to investors and failed to disclose that: (1) iRhythm's business would suffer as a result of the CMS's rulemaking; (2) reimbursement rates would in fact plummet; and (3) a lack of national pricing in the CMS rule and fee schedule would cause uncertainty and weakness in iRhythm's business. Interested iRhythm investors have until April 2, 2021 to retain counsel and apply to be a lead plaintiff if they are interested to do so. Investors do not need to be a lead plaintiff in order to be a class member. A lead plaintiff acts on behalf of all other investor class members in managing the class action. If investors choose to take no action, they can remain an absent class member. The class has not yet been certified. Until certification occurs, investors are not represented by an attorney. FOR MORE INFORMATION: www.tenlaw.com/cases/iRhythm Thornton Law Firm's securities attorneys are highly experienced in representing investors in recovering damages caused by violations of the securities laws. Its attorneys have established track records litigating securities cases in courts throughout the country and recovering losses on behalf of investors. This may be considered Attorney Advertising in some jurisdictions. Prior results do not guarantee or predict a similar outcome with respect to any future matter. CONTACT: Thornton Law Firm LLP 1 Lincoln Street State Street Financial Center Boston, MA 02111 www.tenlaw.com/cases/iRhythm [GN] IRHYTHM TECHNOLOGIES: Vincent Wong Reminds of April 2 Deadline -------------------------------------------------------------- The Law Offices of Vincent Wong on Feb. 7 disclosed that class actions have commenced on behalf of certain shareholders in the following companies. If you suffered a loss you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. There will be no obligation or cost to you. iRhythm Technologies, Inc. (NASDAQ:IRTC) If you suffered a loss, contact us at:http://www.wongesq.com/pslra-1/irhythm-technologies-inc-loss-submission-form?prid=12727&wire=1 Lead Plaintiff Deadline: April 2, 2021 Class Period: August 4, 2020 - January 28, 2021 Allegations against IRTC include that: (1) iRhythm's business would suffer as a result of the CMS' rulemaking; (2) reimbursement rates would in fact plummet; (3) a lack of national pricing in the CMS rule and fee schedule would cause uncertainty and weakness in the Company's business; and (4) as a result of the foregoing, Defendants' public statements were materially false and misleading at all relevant times Tricida, Inc. (NASDAQ:TCDA) If you suffered a loss, contact us at:http://www.wongesq.com/pslra-1/tricida-inc-loss-submission-form?prid=12727&wire=1 Lead Plaintiff Deadline: March 8, 2021 Class Period: September 4, 2019 - October 28, 2020 Allegations against TCDA include that: (i) Tricida's NDA for veverimer was materially deficient; (ii) accordingly, it was foreseeably likely that the FDA would not accept the NDA for veverimer; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. Bit Digital, Inc. (NASDAQ:BTBT) If you suffered a loss, contact us at:http://www.wongesq.com/pslra-1/bit-digital-inc-loss-submission-form?prid=12727&wire=1 Lead Plaintiff Deadline: March 22, 2021 Class Period: December 21, 2020 - January 8, 2021 Allegations against BTBT include that: (1) that Bit Digital overstated the extent of its a bitcoin mining operation; and (2) 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. To learn more contact Vincent Wong, Esq. either via email vw@wongesq.com or by telephone at 212.425.1140. Vincent Wong, Esq. is an experienced attorney who has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 Fax. 866.699.3880 E-Mail: vw@wongesq.com [GN] JERRY ERWIN: Miller BIPA Suit Removed From Circuit Ct. to C.D. Ill. ------------------------------------------------------------------- The class action lawsuit captioned as KATHERINE MILLER, on behalf of herself and a class of similarly situated individuals v. JERRY ERWIN ASSOCIATES, LLC, Case No. 2020-L-000186 (Filed Dec. 21, 2021), was removed from the Circuit Court of Champaign County, Illinois, to the United States District Court for the Central District of Illinois (Urbana Division) on Jan. 29, 2020. The District Court Clerk assigned Case No. 1:21-cv-01043-CSB-EIL to the proceeding. The Plaintiff's complaint alleges that JEA purportedly has violated the Illinois Biometric Information Privacy Act (BIPA) by failing to institute, maintain and adhere to a publicly available retention schedule for biometric identifiers or biometric information; failing to obtain informed consent before obtaining biometric identifiers or information; and failing to store and maintain biometric in a manner consistent with the reasonable standard of care within its industry. The Plaintiff's claims are premised on the same underlying operative factual allegations, namely that the Plaintiff worked for JEA and that "JEA required certain employees to scan their fingerprints in order to clock in and out at JEA jobsites," that "JEA recorded and stored certain employees' fingerprint biometrics using fingerprint-scanning computer technology," and that "JEA did not inform either the Plaintiff or class members the specific purpose and length of the term for which their biometric data would be collected, stored and/or used." Further, the Plaintiff alleges JEA "did not obtain Plaintiff's or class members' written consent to capture and store Plaintiff and class members' biometric data." The Plaintiff asserts claims for reckless, or, alternatively, negligent violations of BIPA and seeks declaratory and injunctive relief as well as statutory damages, attorneys' fees and costs. JEA provides healthcare services. The Company offers assisted living, skilled nursing, hospice, and respite care services.[BN] The Plaintiff is represented by: Roberto Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 107 W. Van Buren Street, Suite 209 Chicago IL 60605 E-mail: rlc@beaumontcostales.com whb@beaumontcostales.com The Defendant is represented by: Mary A. Smigielski, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 550 W. Adams St., Ste. 500 Chicago, IL 60661 Telephone: (312) 345-1718 Facsimile: (312) 345-1778 E-mail: mary.smigielski@lewisbrisbois.com JOHNSON & JOHNSON: Briskin Sues Over Baby Powder's Side Effects --------------------------------------------------------------- ALAN BRISKIN, individually and as Administrator/Executor of the ESTATE OF SUSAN BRISKIN, DECEASED, Plaintiff v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC., f/k/a JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; PERSONAL CARE PRODUCTS COUNCIL, f/k/a COSMETIC TOILETRY AND FRAGRANCE ASSOCIATION (CTFA), JOHN DOES/JANE DOES 1-30; UNKNOWN BUSINESSES AND/OR CORPORATIONS 1-50, Defendants, Case No. ATL-L-000430-21 (N.J. Super., Atlantic Cty., February 9, 2021) is a class action against the Defendants for violations of the New Jersey Products Liability Act, the New Jersey Punitive Damages Act, and the common law. The case arises from the Defendants' alleged false and misleading advertising and marketing of Johnson & Johnson's Baby Powder. The Defendants allegedly failed to provide adequate and proper warnings and/or instructions regarding the increased risk of cancer associated with the use of the product by women to powder their perineal area. Had the Plaintiff's Decedent received a warning that the use of J&J Baby Powder would have significantly increased her risk of cancer, she would not have used the same. As a proximate result of the Defendants' design, manufacture, marketing, sale, and distribution of J&J Baby Powder, the Plaintiff's Decedent has been injured catastrophically severe and permanent pain, suffering, disability, impairment, loss of life, loss of care, comfort, and economic damages, the suit says. Johnson & Johnson is a medical device company headquartered in New Brunswick, New Jersey. Johnson & Johnson Consumer, Inc., formerly known as Johnson & Johnson Consumer Companies, Inc., is a consumer health products manufacturer based in New Jersey. Personal Care Products Council, formerly known as Cosmetic Toiletry and Fragrance Association, is a trade association based in Washington, D.C. [BN] The Plaintiff is represented by: Richard M. Golomb, Esq. GOLOMB & HONIK, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Telephone: (215) 985-9177 JONES SEPTIC: Settlement Agreement Gets Approval in Rumph Suit -------------------------------------------------------------- In the class action lawsuit captioned as KENNETH RUMPH v. JONES SEPTIC TANK, INC., RODERICK B. JONES, and RODERICK H. JONES, Case No. 7:19-cv-00085-HL (M.D. Ga.), the Hon. Judge Hugh Lawson entered an order: 1. granting the Joint Motion to approve settlement agreement; 2. dismissing the Plaintiffs' complaint; 3. denying as moot the Plaintiffs' motion for status conference. Settlement Terms: -- Reasonable Hourly Rate The Court agrees that funds attributable to the Plaintiff Brontzman's unrelated claims do not require this Court's scrutiny under Fair Labor Standards Act's (FLSA's) provisions. An hourly rate of $334.83 is reasonable in this district. The Court recently approved a $300 rate, and counsel's representation of a class of five plaintiffs warrants a slightly higher rate. -- Lodestar Calculation The settlement agreement compensates counsel $26,774.66 including fees and costs. There is a "strong presumption that the lodestar figure represents a reasonable fee." Because the settlement agreement awards counsel a fee just below the lodestar figure, the Court finds that the proposed attorney's fees award is reasonable. The settlement agreement seeks to resolve the Plaintiffs' claims under the FLSA. The Plaintiffs allege that Defendants failed to pay their overtime wages. A copy of the Court's order dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/2OjV6Rd at no extra charge.[CC] KAWADA COMPANY: Garcia Seeks Online Hotel Booking's Access Features ------------------------------------------------------------------- ORLANDO GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. KAWADA COMPANY OF AMERICA, LTD. and DOES 1-10, Defendant, Case No. 21STCV04858 (Cal. Super., Los Angeles Cty., February 8, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act and the Unruh Civil Rights Act. The case arises from the Defendant's failure to provide information about the accessible features in the rooms at the Kawada Hotel on its reservation Website at https://www.kawadahotel.com/ for people with disabilities, including the Plaintiff. The Website reservation system lacks sufficient information needed by disabled travelers to assess independently whether a given hotel room would work for them. As a result, the Plaintiff is unable to engage in an online booking of the hotel room with any confidence or knowledge about whether the room will actually work for him due to his disability, the suit says. Kawada Company of America, Ltd. is an owner and operator of the Kawada Hotel located at 200 S. Hill St., Los Angeles, California. [BN] The Plaintiff is represented by: Raymond Ballister Jr., Esq. Russell Handy, Esq. Amanda Seabock, Esq. Zachary Best, Esq. CENTER FOR DISABILITY ACCESS 8033 Linda Vista Road, Suite 200 San Diego, CA 92111 Telephone: (858) 375-7385 Facsimile: (888) 422-5191 E-mail: amandas@potterhandy.com KEURIG DR PEPPER: Faces Class Suit Over Deceptive Vanilla Flavoring ------------------------------------------------------------------- Corinne Ramey, writing for The Wall Street Journal, reports that the lawsuits started in 2019, when Spencer Sheehan puzzled over a can of A & W Root Beer stamped with the words, "MADE WITH AGED VANILLA." "I looked at it and said, 'Yeah, I don't think it's correct, or completely truthful,'" said Mr. Sheehan, a lawyer in the Long Island suburbs of New York City who decided to sue Keurig Dr Pepper Inc., which owns the A & W brand. Now a battle over vanilla is playing out in federal courts across the U.S., with more than 100 proposed class-action cases filed over vanilla flavoring, many by Mr. Sheehan, within the past two years. At issue is one question: Is vanilla really vanilla without vanilla beans? On one side are plaintiffs' lawyers, like Mr. Sheehan, who argue in lawsuits that food manufacturers are duping consumers by implying products are made with vanilla when they contain at most a trace of the plant. On the other are companies -- McDonald's Corp., Wegmans Food Markets Inc., Trader Joe's and Chobani LLC among them -- that argue consumers don't expect to find real vanilla in their vanilla soy milk or vanilla Greek yogurt as long as it tastes like vanilla. A spokeswoman for Keurig Dr Pepper Inc. said the suit's claims have no merit and its products are truthfully marketed and labeled. The suit is ongoing. [GN] KEYPOINT GOVERNMENT: Loses Bid to Compel Arbitration in Brayman --------------------------------------------------------------- The U.S. District Court for the District of Colorado denied the Defendant's motion to compel arbitration in the lawsuit titled RACHEL BRAYMAN, DANA McCARTHY, and ADRIANA PONCE, individually and on behalf of all other similarly situated individuals, Plaintiffs v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant, Case No. 18-cv-0550-WJM-NRN (D. Colo.). KeyPoint moved to compel arbitration of California state law claims and strike related Rule 23 class action allegations. The named Plaintiffs bring the action against KeyPoint for alleged violations of the Fair Labor Standards Act ("FLSA") and violations of California law. Their FLSA and California law claims concern KeyPoint's alleged failure to properly compensate a certain class of employees known as "Investigators" for overtime hours worked, as well as other employment and wage violations. Ms. Brayman filed the lawsuit on March 8, 2018. The original complaint included a FLSA collective action claim against KeyPoint based on its failure to pay overtime wages. The Court granted FLSA conditional collective action certification under 29 U.S.C. Section 216(b) on November 1, 2018. As redefined by the Court on December 16, 2019, the FLSA collective action class is defined as: All persons who worked as, or who were hired to be, a Field Investigator, Background Investigator, or in other position with similar job duties, for Defendant KeyPoint Government Solutions, Inc. at any time from April 6, 2015, to September 18, 2019. On December 16, 2019, the Court issued an order analyzing the arbitration agreements signed by the FLSA opt-in plaintiffs. Itconcluded based on a plain reading of the arbitration agreements that the putative FLSA collective action members, who worked as, or were hired to be Investigators as of March 8, 2018, (the day Brayman initiated the lawsuit) could not be forced to arbitrate their claims individually and could instead join the collective action. On August 9, 2020, the Plaintiffs filed the First Amended Complaint, which, among other things, added five causes of action arising under California statutes, regulations, and/or administrative orders: failure to pay overtime wages; failure to provide accurate itemized wage statements; failure to provide rest breaks and meal periods; failure to pay "final wages" to those who have left KeyPoint's employ; and unfair competition, by engaging in the acts and practices all of the previous claims. The First Amended Complaint also included a proposed Rule 23 class action, defined as: All persons who worked as, or who were hired to be, a Field Investigator, Background Investigator, or another position with similar job duties, in the State of California for Defendant KeyPoint Government Solutions, Inc., at any time within four years prior to the filing of Plaintiffs' Complaint. KeyPoint filed the instant Motion on July 23, 2020. In the Motion, KeyPoint contends that 31 individuals, who fall within the definition of the proposed Rule 23 class ("California Plaintiffs") signed arbitration agreements before the Plaintiffs filed the First Amended Complaint and, therefore, must arbitrate any California state law claims. District Judge William J. Martinez notes that two clauses in the arbitration agreements are relevant to the Motion. One is the "Arbitrator Decides Clause," which provides that "the Arbitrator, and not any federal, state, or local court or agency, will have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement." The second relevant clause is the "Pending Litigation Exception," which provides that "this Agreement does not apply to any class, collective, or other representative action proceeding that is currently pending and to which you are a current or purported class member as of the day this Agreement is signed by Employee." KeyPoint argues: (1) a plain reading of the arbitration agreements requires the arbitrator to decide whether the California Plaintiffs' state law claims are subject to arbitration; and (2) even if the Court were to reach this question itself, the arbitration agreements require the California Plaintiffs to bring the California state law claims, added in the First Amended Complaint, against KeyPoint in arbitration. Invoking the Arbitrator Decides Clause, KeyPoint contends that the arbitrator has the exclusive authority to decide whether the Pending Litigation Exception applies to the California state law claims and the California Rule 23 class. The Court has previously addressed KeyPoint's argument that the Arbitrator Decides Clause requires the arbitrator to determine whether the California Plaintiffs' claims are subject to arbitration. Judge Martinez finds that the present situation does not require that the Court deviate from its prior holding. An alternate ruling would require all 31 California Plaintiffs to arbitrate whether their claims may be brought in federal court, potentially leading to 31 different rulings. Moreover, an arbitrator would be forced to resolve disputes regarding the meaning of the Court's prior order interpreting the Pending Litigation Exception. Thus, the Court again rejects KeyPoint's claim that the Arbitrator Decides Clause unmistakably delegates the authority to determine whether the California Plaintiffs' state law claims are exempted from arbitration under the Pending Litigation Exception to individual arbitrators. The crux of the parties' dispute revolves around the proper interpretation of the Pending Litigation Exception, which provides that the Agreement does not apply to any class, collective, or other representative action proceeding that is currently pending and to which you are a current or purported class member as of the day this Agreement is signed by Employee. KeyPoint argues that the 31 California Plaintiffs executed their arbitration agreements before the Plaintiffs moved to file the First Amended Complaint, which added California state claims to the litigation. According to KeyPoint, because the Pending Litigation Exception only applies to a "class, collective, or other representative action proceeding that is currently pending" at the time the arbitration agreements were signed, the Pending Litigation Exception does not cover the California state law claims because these claims did not exist at the time that the California Plaintiffs signed their arbitration agreements. In response, the Plaintiffs contend that the Pending Litigation Exception applies to the California state law claims. The Court agrees with the Plaintiffs. KeyPoint's argument--that specific claims must have been currently pending at the time the California Plaintiffs signed their arbitration agreements to be exempt from arbitration--is contrary to the plain language of the arbitration agreements, Judge Martinez finds. The Pending Litigation Exemption states that the arbitration agreements do not apply to currently pending collective action "proceedings" to which potential plaintiffs are a current or purported class member. The use of the term "proceedings" demonstrates that the focus is on whether there is a currently pending lawsuit--not whether the specific claims within a lawsuit were pending at the time the arbitration agreements were signed, Judge Martinez opines. In drafting the arbitration agreements, KeyPoint could have written the Pending Litigation Exception to clarify that the exception only applies to currently pending claims within a class, collective, or other representative action. It did not do so, Judge Martinez adds, among other things. Accordingly, KeyPoint's request that the Court compel the California Plaintiffs to arbitrate their state law claims, strike Plaintiffs' Rule 23 Class allegations as to the arbitration agreement signatories, and stay the remaining proceedings pending arbitration is denied. A full-text copy of the Court's Order dated Feb. 4, 2021, is available at https://tinyurl.com/4jntkfvk from Leagle.com. KINGSFORD PRODUCTS: Briquettes Aren't 100% Natural, Lee Claims -------------------------------------------------------------- Timothy Lee, individually and on behalf of all others similarly situated v. The Kingsford Products Company, LLC, Case No. 7:21-cv-00924 (S.D.N.Y., Feb. 2, 2021) alleges that the Kingsford engages in deceptive business practices in the marketing, advertising and promotion of its 100% Natural Hardwood Briquettes ("Product"), often described as "barbecue charcoals." The Product is marketed as "100% Natural Hardwood Briquets" which delivers a "Cleaner Burn." However, the representations are misleading because the Product is not "100% Natural" nor "100% Natural Hardwood." The Product is not "100% Natural" because it contains synthetic ingredients such as borax. The Product is not "100% Natural Hardwood" because it contains wood scraps including between 3-8% sawdust, instead of only hardwood, which is the source for lump charcoal. The front label contains a graphic of a green flame accompanied by the statement "Cleaner Burn." The green flame and comparative claim give consumers the impression the Product is beneficial, or less harmful to the environment, compared to other fire sources such as propane gas and lump charcoal, the Plaintiff alleges. As a result of the Defendant's conduct and omissions, the Plaintiff and the putative class purchased the Product, which failed to conform as promised, says the complaint. Mr. Lee is a citizen of Dutchess County, New York. He purchased the Product on at least one occasion, at Home Depot, 80 Independent Way SE, Brewster, New York between January 27, 2020 and July 27, 2020. The Plaintiff purchased the product for personal and household use in reliance on the labeling, including "100% Natural," "100% Natural Hardwood" and "Cleaner Burn." As a result of the representations made by the Defendant, he expected the product to conform to the descriptions. Had he known the truth about the misrepresentations and omissions, he would not have purchased the Product, says the Plaintiff. The Defendant manufactures, markets, labels and sells its "100% Natural Hardwood Briquettes" for between $13-$16 for a 12-pound bag, available at convenience, grocery, home improvement and other retail stores.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cutter Mill Road, Suite 409 Great Neck, NY 11021 Telephone: (516) 268-7080 Facsimile: (516) 234-7800 E-mail: spencer@ spencersheehan.com - and - James Chung, Esq. LAW OFFICE OF JAMES CHUNG 43-22 216th Street Bayside, NY 11361 Telephone: (718) 461-8808 Facsimile: (929) 381-1019 E-mail jchung_77@msn.com KORE ESSENTIALS: Paguada Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Kore Essentials, Inc. The case is styled as Dilenia Paguada, on behalf of herself and all others similarly situated v. Kore Essentials, Inc., Case No. 1:21-cv-01244 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kore -- https://www.koreessentials.com/ -- offers men's belts with 40+ sizing positions to adjust with for a perfect fit.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com KOTOBUKI RESTAURANT: Fong Files FLSA Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Kotobuki Restaurant, Inc., et al. The case is styled as Angela Fong, Hong Ying Zhang, Sheng Lin, Mary Y. Yueh, on behalf of themselves and others similarly situated v. Kotobuki Restaurant, Inc. (doing business as: Kotobuki, doing business as: Kotobuki-Hauppauge), Kotobuki Roslyn, Inc. (doing business as: Kotobuki, doing business as: Kotobuki Roslyn), Kotobuki Babylon, Inc. (doing business as: Kotobuki, doing business as: Kotobuki-Babylon), Kotobuki Manhattan, Inc. (doing business as: Kotobuki, doing business as: Kotobuki-Manhattan), Kotobuki Management, Inc. (doing business as: Kotobuki), Yoshihiro Narita, Eric Kim, Case No. 2:21-cv-00747-GRB-ST (E.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Fair Labor Standards Act. Kotobuki Restaurant -- http://www.kotobukirestaurants.com/-- is a Japanese restaurant in New York City which offers straightforward sashimi, and shares a menu with unusual rolls & other Japanese fare in a modern space.[BN] The Plaintiffs are represented by: Aaron Schweitzer, Esq. John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Blvd. Suite 119 Flushing, NY 11355 Phone: (718) 762-1324 Email: troylaw@troypllc.com johntroy@troypllc.com KRAFT TOOL: Burbon Files ADA Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Kraft Tool Company. The case is styled as Luc Burbon and on behalf of all persons similarly situated v. Kraft Tool Company, Case No. 1:21-cv-00761 (E.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Kraft Tool -- https://www.krafttool.com/ -- manufactures quality Trowel Trade Tools for concrete, masonry, drywall, plaster, asphalt and tile professionals.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com LANE BRYANT: Young Files ADA Suit in S.D. California ---------------------------------------------------- A class action lawsuit has been filed against Lane Bryant, Inc., et al. The case is styled as Sarah Young, individually and on behalf all others similarly situated v. Lane Bryant, Inc., a Delaware corporation; Lane Bryant #6243, Inc., a Florida corporation; Does 1-10 inclusive; Case No. 3:21-cv-00261-AJB-LL (S.D. Cal., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Lane Bryant Inc. -- https://www.lanebryant.com/ -- is an American retail women's clothing store chain focusing on plus-size clothing.[BN] The Plaintiff is represented by: Thiago M. Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard 12th Floor Los Angeles, CA 90010 Phone: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com LAS VEGAS SANDS: Daniels Family 2001 Revocable Trust Suit Underway ------------------------------------------------------------------ Las Vegas Sands Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 5, 2021, for the fiscal year ended December 31, 2020, that the company continues to defend a purported class action suit initiated by The Daniels Family 2001 Revocable Trust. On October 22, 2020, The Daniels Family 2001 Revocable Trust, a putative purchaser of the Company's shares, filed a purported class action complaint in the U.S. District Court against LVSC, Sheldon G. Adelson and Patrick Dumont. The complaint asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and alleges that the company (LVSC) made materially false or misleading statements, or failed to disclose material facts, from February 27, 2016 through September 15, 2020, with respect to its operations at the Marina Bay Sands, its compliance with Singapore laws and regulations, and its disclosure controls and procedures. On January 5, 2021, the U.S. District Court entered an order appointing Carl S. Ciaccio and Donald M. DeSalvo as co-lead plaintiffs. Pursuant to a scheduling order entered by the U.S. District Court, the plaintiffs anticipate filing an amended complaint on or before March 8, 2021. The Company anticipates bringing a motion to dismiss the amended complaint on or before May 7, 2021. All briefing on the motion to dismiss is scheduled to be completed by August 5, 2021. Las Vegas Sands said, "This action is in a preliminary stage and management has determined that based on proceedings to date, it is currently unable to determine the probability of the outcome of this matter or the range of reasonably possible loss, if any. The Company intends to defend this matter vigorously." Las Vegas Sands Corporation is an American casino and resort company based in Paradise, Nevada, United States. Its resorts feature accommodations, gaming and entertainment, convention and exhibition facilities, restaurants and clubs, as well as an art and science museum in Singapore. The company is based in Las Vegas, Nevada. LIONS GATE: Continues to Seek Added Reimbursement from Insurers --------------------------------------------------------------- Lions Gate Entertainment Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2021, for the quarterly period ended December 31, 2020, that the company is continuing to seek additional insurance reimbursement against certain insurers related to the settlement in the settled putative class suit initiated by purported Starz Networks stockholders. Between July 19, 2016 and August 30, 2016, seven putative class action complaints were filed by purported Starz stockholders in the Court of Chancery of the State of Delaware (the "Fiduciary Litigation"). On August 22, 2018, the parties to the Fiduciary Litigation reached an agreement in principle providing for the settlement of the Fiduciary Litigation on the terms and conditions set forth in an executed term sheet. On October 9, 2018, the parties to the Litigation executed a stipulation of settlement, which was filed with the court (the "Stipulation"). The Stipulation provided for, among other things, the final dismissal of the Fiduciary Litigation in exchange for a settlement payment made in the amount of $92.5 million, of which $37.8 million was reimbursed by insurance. The Fiduciary Litigation settlement was approved by the Court of Chancery of the State of Delaware and the settlement amount and insurance reimbursement discussed above were paid during the quarter ended December 31, 2018. The Company is continuing to seek additional insurance reimbursement, including pursuant to a lawsuit filed by the Company on November 7, 2018 against certain insurers. On November 5, 2018, an insurer that entered into an agreement and contributed $10.0 million to the Company's aggregate insurance reimbursement filed a lawsuit seeking declaratory judgment for reimbursement of its agreed upon payment. The Company believes the lawsuit to be without merit and intends to vigorously defend it. No further updates were provided in the Company's SEC report. Lions Gate Entertainment Corp. engages in motion picture production and distribution, television programming and syndication, home entertainment, interactive ventures and games, and location-based entertainment in Canada, the United States, and internationally. Lions Gate Entertainment Corp. was founded in 1986 and is headquartered in Santa Monica, California. LLOYD'S, LONDON: 632 Metacom Suit Moved From N.Y. to Rhode Island ----------------------------------------------------------------- The U.S. District Court for the Southern District of New York grants the Defendants' motion to transfer to the District of Rhode Island the lawsuit styled 632 METACOM, INC. d/b/a HOMETOWN TAVERN, individually and on behalf of all others similarly situated, Plaintiff v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY NO. XSZ146282, Defendants, Case No. 20-CV-3905 (RA) (S.D.N.Y.). The Plaintiff brought the putative class action against the Defendants alleging breach of contract and seeking a declaratory judgment that its commercial insurance policy covers certain losses related to COVID-19. The lawsuit concerns the scope of a commercial property insurance policy that the Plaintiff purchased from the Defendants. The Policy provides commercial property coverage for the Plaintiff's restaurant located at 632 Metacom Avenue, in Warren, Rhode Island, and covers, inter alia, loss of business income sustained due to suspension of operations caused by direct physical loss or damage or orders from a "civil authority." Pursuant to the Policy, the Plaintiff is to notify its insurance broker, Massachusetts-based XS Brokers Insurance Agency, Inc., in the event of a claim. The Policy specifies that the insurance coverage "shall be subject to the applicable state law to be determined by the court of competent jurisdiction as determined by the provisions of the Service of Suit clause contained herein." That clause provides that service of process in any suit instituted against any one of the Underwriters upon the Policy "may be made upon Messrs Mendes & Mount, 750 Seventh Avenue, New York, New York 10019-6829, U.S.A." In late March 2020, the Plaintiff notified the Defendants of property loss and business interruption caused by the COVID-19 pandemic, which it maintains is covered by the Policy. In response, the Defendants requested additional information beyond that required by the Policy and told the Plaintiff that it would have to review the Policy to evaluate its claim for coverage. On May 19, 2020, the Plaintiff filed a putative class action in the Southern District of New York, alleging that the Defendants have uniformly refused to pay their insureds under their standard policy for losses related to COVID-19. The putative class includes a nationwide class comprising "all policyholders of Defendants who made a claim and were denied coverage under one of the Defendants' policies due to COVID-19," as well as a Rhode Island subclass, comprising those who purchased such policies in Rhode Island. According to the Complaint, upon information and belief, the forms and endorsements used in the Plaintiff's Policy are materially the same as those policies held by the members of the proposed class. The Plaintiff maintains that venue is proper in the Court because the Policy specifically provides that service of process may be made upon an agent domiciled in the Southern District of New York. The Court accepted the case as related to Gio Pizzeria & Bar Hospitality, LLC, et al. v. Certain Underwriters at Lloyd's, London Subscribing to Policy Numbers ARP-74910-20 and ARP-75209-20, a putative class action filed on April 17, 2020, against the Defendants by two Florida restaurants alleging breach of contract under a substantially similar policy. On August 20, 2020, that case was transferred to the Southern District of Florida by a stipulation that followed the Defendants' filing of a motion to transfer venue. On July 28, 2020, alongside a motion to dismiss for failure to state claim, the Defendants filed the instant motion to transfer pursuant to 28 U.S.C. Section 1404(a). Maintaining that the connection between the Southern District of New York and the dispute is "nonexistent," the Defendants argue that the Court should transfer the action to the District of Rhode Island for the convenience of parties and witnesses and in the interest of justice. The Plaintiff defends the propriety of venue in this District on the grounds that the class-action nature of the suit renders its connection to Rhode Island immaterial and for all intents and purposes, it appears that the Defendants' headquarters are located in New York because Lloyd's has offices in the District. The Defendants counter that Lloyd's is an insurance marketplace that is not a defendant in the action, and that the Plaintiff's allegations regarding the location of any Lloyd's office are irrelevant. The Court held an initial status conference on November 6, 2020, and stayed discovery pending resolution of the Defendants' motions. As an initial matter, District Judge Ronnie Abrams notes that it is plain--and the Plaintiff does not appear to dispute--that the action could have been brought in the District of Rhode Island. First, a civil action may be brought in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." Those criteria, he says, are satisfied in the case as the Plaintiff is a Rhode Island business that is seeking insurance coverage for lost income that is largely attributable to stay-at-home orders issued by the state of Rhode Island. Second, the Defendants, by virtue of their status as foreign insurers, "may be sued in any judicial district." The Judge, therefore, finds that the Plaintiff could have commenced this action in the transferee district. Having determined that the action could have been brought in the District of Rhode Island, the Court turns to the discretionary inquiry as to whether transfer would best serve the convenience of the parties and the interests of justice. Because the "operative facts upon which the litigation was brought bear little material connection" to the Southern District of New York, it affords little weight to the Plaintiff's choice of forum, citing Cerussi v. Union Coll., 144 F.Supp.2d 265, 270 (S.D.N.Y. 2001). The Court does not credit the Plaintiff's argument that the connection between New York and this litigation is "substantial." To support that contention, the Plaintiff avers that a "Google search reveals that Lloyd's American headquarters are located" in a Manhattan office that houses Lloyd's' American President and General Counsel. The Defendants counter that Lloyd's is neither a defendant in this action nor a party to the Policy, but rather an insurance market in which Underwriters operate. Accordingly, the Court affords the Plaintiff's choice of forum little to no weight in its Section 1404(a) analysis. The Court finds that this important factor--Locus of Operative Facts--weighs in favor of transfer to Rhode Island. Where, as in the instant case, a party has not shown that any of the operative facts arose in the Southern District of New York, the locus of operative facts will substantially favor transfer from the district. Although the Complaint does not allege where the Policy was negotiated or purchased, it does allege that the Policy was issued to the Plaintiff at an address in Rhode Island. Nothing in the record suggests that any relevant events concerning the Policy took place in New York. The Plaintiff maintains, however, that its filing of the suit as a nationwide class action changes the inquiry. Noting that "putative class members are spread all over the country," it argues that the primary locus should be determined by the Defendants' headquarters. Judge Abrams notes that the Defendants are headquartered in the United Kingdom, and lack any cognizable connection to New York. Because all of the identified "operative documents and sources of proof" concern conduct in Rhode Island--namely the Policy and its applicability to the putative losses that took place in Rhode Island as a result of stay-at-home orders promulgated in that state--the Court concludes that the locus of operative facts is in Rhode Island. Accordingly, this factor favors the Defendants. Consideration of the convenience of witnesses similarly favors transfer to Rhode Island, Judge Abrams holds. While nearly all of the identifiable potential witnesses are located in Rhode Island, none are in New York. Judge Abrams opines, among other things, that a Rhode Island court is better suited to interpret the Policy's language under Rhode Island law. In sum, all relevant factors demonstrate that transferring the action to the District of Rhode Island would promote convenience and the interests of justice, Judge Abrams holds. Because most witnesses and evidence appear closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer. Although it is a putative nationwide class action, the balance of factors at this stage of the case favors transfer to the home district of the Lead Plaintiff. For the reasons set forth, the Defendants' motion to transfer the action to the U.S. District Court for the District of Rhode Island is granted. A full-text copy of the Court's Memorandum Opinion & Order dated Feb. 4, 2021, is available at https://tinyurl.com/9zadku7u from Leagle.com. LOADED BOARDS: Quezada Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Loaded Boards, Inc. The case is styled as Jose Quezada, on behalf of himself and all others similarly situated v. Loaded Boards, Inc., Case No. 1:21-cv-01242 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Loaded Boards -- https://loadedboards.com/ -- is a manufacturer of high performance bamboo longboards, longboard wheels, longboard skateboards and snowboards.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com LOGISTICARE SOLUTIONS: Feb. 18 Response to Class Status Bid Sought ------------------------------------------------------------------ In the class action lawsuit captioned as LA'RIA CHAPMAN, Individually and on behalf of all others similarly situated, v. LOGISTICARE SOLUTIONS, LLC, Case No. 2:20-cv-12875-AJT-APP (E.D. Mich.), the Defendant LogistiCare and Plaintiff La'Ria Chapman ask the Court to enter an order granting extension of time to respond to each Parties' currently pending motions which are both due on February 4, 2021. -- LogistiCare's response to Plaintiff's Opposed Pre- Discovery Motion for Conditional Class Certification and Court Supervised Notice to Putative Class Members Pursuant to 29 U.S.C. section 216(B); and -- The Plaintiff's response to LogistiCare's Motion to Dismiss, or in the Alternative, Motion to Transfer. The Parties ask the Court that the deadline for both responses be moved up to and including February 18, 2021. LogistiCare provides non-emergency medical transportation management services. A copy of the Parties' motion dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3qdtdIz at no extra charge.[CC] Attorneys in Charge for the Plaintiff and Putative Class Members, are: Jennifer McManus, Esq. FAGAN MCMANUS, P.C. 25892 Woodward Avenue Royal Oak, MH 48067 Telephone: (248) 658-8951 E-mail: jmcmanus@faganlawpc.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 E-mail: clif@a2xlaw.com austin@a2xlaw.com The Defendant is represented by: Bronwyn H. Pepple, Esq. WILLIAMS WEESE PEPPLE & FERGUSON PC 1801 California Street, Suite 3400 Denver, CO 80202 Telephone: (303) 861-2828 E-mail: bpepple@williamsweese.com MANHATTAN LUXURY: Class Status Bid Nixed w/o Prejudice ------------------------------------------------------ In the class action lawsuit captioned as BRIAN WATSON, et al., v. MANHATTAN LUXURY AUTOMOBILES, INC., Case No. 1:20-cv-04572-LGS (S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered an order that: 1. the third-party subpoena respondent CDK Global, LLC's application to designate two customer lists produced on November 16, 2020, as "Confidential" pursuant to this action's protective order is granted; -- To the extent the Plaintiffs seek to use CDK's customer lists in another action without the need of a third- party subpoena, Plaintiffs and CDK shall confer and attempt to reach agreement; 2. the Plaintiffs' application to strike certain evidence is denied without prejudice to renewal as a motion in limine prior to trial; -- For clarity, the Defendant may use Plaintiff Greene's response to a "New York inspection" text message in connection with any motion prior to trial; 3. the discovery is no longer stayed, and the parties' request for extension of expert discovery is granted; -- A Second Amended Civil Case Management Plan, adopting the parties' proposed deposition schedule, will follow separately; and 4. the Plaintiffs' motion for class certification is denied without prejudice to renewal by April 30, 2021; -- The Defendant shall file its opposition by May 21, 2021, and the Plaintiffs shall file their reply by June 2, 2021; and -- The parties shall comply with the Court's Individual and Emergency Rules and Practices with respect to exhibits, page limits and courtesy copies. Manhattan Luxury Automobiles, Inc. was founded in 1994. The Company's line of business includes the retail sale of new and used automobiles. A copy of the Court's order dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/2ZbORBo at no extra charge.[CC] MARKET VIEW: AWL Borrowers Sue Over Payday Loans in E.D. Pa. ------------------------------------------------------------ DIANA BUTLER, individually and behalf of a class of similarly situated persons v. MARKET VIEW, LLC, d/b/a DebtTrader, NORTHWOOD ASSET MANAGEMENT GROUP, LLC and various John Does, Case No. 5:21-cv-00424-JLS (E.D. Pa., Jan. 29, 2021) is brought against the Defendants for their alleged knowing participation in a conspiracy with a notorious "payday lending" enterprise known as American Web Loans ("AWL"), which victimized the Plaintiff and the putative classes. According to the complaint, the Plaintiff and the consumers in the putative classes were victimized by "payday" loans, which are short-term credit products sold with crushing interest rates and targeted at low-income individuals with high credit risks. The credit products offered by AWL were sold over the Internet and were described as "fast cash" that provided funds immediately. Allegedly, AWL is one of the more notorious and long-lasting of these lending Websites. It is purportedly operated by a Native American tribe, but for all practical purposes it has been in fact controlled by and for the profit of non-defendant Mark Curry and entities controlled by him, including the non-defendant entitles MacFarlane Group and Sol Partners. The Plaintiff and the members of the putative class are AWL borrowers. One of the most common forms of these illegal schemes has been the so-called "tribal lending" schemes. In a tribal-lending scheme, otherwise known as "rent-a-tribe," a payday lender allegedly recruits a Native American tribe to establish a tribal business entity to function as the nominal, originating lender in order to create a tribal veneer for the business. The Plaintiff asserts damage claims under the Racketeering Influenced Corrupt Organizations Act ("RICO"), and the Fair Debt Collection Practices Act ("FDCPA"), and seeks declaratory relief under state law. The Plaintiff further contends that the Defendants are among entities that conspired with the AWL tribal lending scheme that victimized Plaintiff and the proposed class by providing the essential service of purchasing nonperforming loans from the scheme. Plaintiff Butler was ensnared into a 600% payday loan made by AWL. Her loan was sold to Northwood in a transaction brokered by DebtTrader. AWL is one of several tribal lenders that launder its illegal debt through DebtTrader, and Northwood is one of many debt buyers that is engaged in collecting AWL loans purchased through DebtTrader. Market View, LLC, which operates under its trademark "DebtTrader," is an online platform that connects tribal lending businesses to debt-buyers willing and able to purchase, and thereby monetize, the lenders' nonperforming loans. The Defendant Northwood is a debt-buyer that has purchased millions of dollars in illegal, "tribal" payday loans through DebtTrader.[BN] The Plaintiff is represented by: Irv Ackelsberg, Esq. John J. Grogan, Esq. David A. Nagdeman, Esq. LANGER, GROGAN & DIVER, PC 1717 Arch Street, Suite 4020 Philadelphia, PA 19103 Telephone: (215) 320-5660 Facsimile: (215) 320-5703 E-mail: iackelsberg@langergrogan.com MCKINSEY & CO: Pembroke Pines Sues For Misbranding OxyContin Drugs ------------------------------------------------------------------ THE CITY OF PEMBROKE PINES, FLORIDA, individually and on behalf of all others similarly situated, Plaintiff v. MCKINSEY & COMPANY, INC., Defendants, Case No. 0:21-cv-60305 (S.D. Fla., Feb. 5, 2021) alleges that the Defendant is liable for the successful efforts to increase OxyContin sales after 2007 guilty plea of Purdue Frederick Company, the parent of Purdue Pharma, L.P. ("Purdue"), for misbranding OxyContin. According to the complaint, McKinsey's mandate was to increase the sales of the drug in light of the fact that Purdue had plead guilty to misbranding, and the owners of Purdue now wished to exit the opioid market due to the perceived reputational risks of remaining there. McKinsey's task was to thread the needle, to increase OxyContin sales given the strictures imposed by the 5-year Corporate Integrity Agreement. This McKinsey did, turbocharging the sales of a drug it knew fully well was addictive and deadly, while paying at least tacit respect to the Corporate Integrity Agreement, the suit says. McKinsey & Company, Inc. is a management consulting firm. The Company offers consultation to various industries such as electronic, aerospace, automotive, chemical, financial, oil and gas, public sector, and healthcare. [BN] The Plaintiff is represented by: Mark J. Dearman, Esq. Paul J. Geller, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 E-mail: pgeller@rgrdlaw.com mdearman@rgrdlaw.com -and- James D. Young, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 76 South Laura Street, Suite 1100 Jacksonville, FL 32202 Telephone: (904) 361-0012 Facsimile: (904) 366-7677 E-mail: jyoung@forthepeople.com -and- Juan Martinez, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 North Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 393-5463 E-mail: juanmartinez@forthepeople.com -and- Robert C. Gilbert, Esq. Scott Weiselberg, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 West Las Olas Boulevard, Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 E-mail: gilbert@kolawyers.com weiselberg@kolawyers.com -and- Matthew Browne, Esq. BROWNE PELICAN PLLC 7007 Shook Avenue Dallas, TX 75214 Telephone: (405) 642-9588 E-mail: mbrowne@brownepelican.com -and- Eugene K. Pettis, Esq. Debra P. Klauber HALICZER PETTIS & SCHWAMM, P.A. One Financial Plaza 100 SE 3rd Avenue, 7th Floor Fort Lauderdale, FL 33394 Telephone: (954) 523-9922 E-mail: service@hpslegal.com MEDCIPHERS LLC: Underpays Personal Support Aides, Dawson Suit Says ------------------------------------------------------------------ KIM DAWSON, CHARLENE BURRELL, AMEIKA EDMONDS, and TANYA SMALL, individually and on behalf of all others similarly situated, Plaintiffs v. MEDCIPHERS, LLC, DAVINA CONSULTING, LLC, and JEFFREY B. AIBEL, Defendants, Case No. 1:21-cv-00588-ELR (N.D. Ga., February 9, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act of 1938 by failing to compensate the Plaintiffs and Class members appropriate minimum wage and overtime pay for all hours worked, failing to keep accurate time records, and failing to properly post wage notices. The Plaintiffs were employed by the Defendants as personal support aides at any time between 2016 to the present. Medciphers, LLC is a multi-service health-care company headquartered in Norcross, Georgia. Davina Consulting, LLC is a consulting firm with its principal place of business of 2376 Shallowford Terrace, Atlanta, Georgia. [BN] The Plaintiff is represented by: Nicholas P. Martin, Esq. Frank DeMelfi, Esq. MARTIN | DEMELFI, LLC 1742 Mount Vernon Road, Suite 300 Dunwoody, GA 30338 Telephone: (770) 450-6155 E-mail: nmartin@martin-demelfi.com fdemelfi@martin-demelfi.com MEDSTAR HEALTH: District of Maryland Refuses to Toss ERISA Suit --------------------------------------------------------------- The U.S. District Court for the District of Maryland denied the Defendants' motion to dismiss the consolidated lawsuit titled In re MedStar ERISA Litigation, Case No. RDB-20-1984 (D. Md.). The Plaintiffs in the consolidated class action allege breach of fiduciary duty under the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. Section 1001, et seq. ("ERISA"), failure to monitor, and, in the alternative, knowing breach of trust, for the alleged imprudent management of the MedStar Health, Inc. Retirement Savings Plan. On November 6, 2020, Defendants MedStar, the MedStar Health, Inc. Retirement Savings Plan Committee, the Board of Directors of MedStar Health, Inc., and the unnamed members of the Committee and Board ("Does. 1-20"), filed a Motion to Dismiss the Plaintiffs' Amended Complaint, arguing that the Plaintiffs have failed to state a claim for relief. The Plaintiffs in the consolidated class action are participants in the MedStar Health, Inc. Retirement Savings Plan ("Plan"), a qualified tax-deferred, defined contribution retirement plan. As of December 31, 2018, the Plan had 25,010 participants with account balances and assets totaling nearly $1.8 billion, placing it in the top 0.1% of all defined contribution plans by plan size. MedStar, a Maryland non-profit corporation, is the Plan's sponsor. The Plaintiffs assert that MedStar's Administrative Committee is the Plan's administrator. They further assert that MedStar's Board has the ability to appoint and monitor the members of the Committee. Accordingly, the Plaintiffs allege that MedStar, its Board, the members of the Board, the Administrative Committee, and the members of the Committee are all fiduciaries under Sections 1002 and 1102 of the ERISA. Unable to identify the current members of the MedStar Board nor the Administrative Committee, the Plaintiffs named Does 1-20 as placeholders. They contend that pursuant to Rule 15 of the Federal Rules of Civil Procedure, they will seek to amend their Amended Complaint to name the members of the Committee and other responsible individuals as defendants as soon as their identities are discovered. The Plan is a single-employer 403(b) plan in which participants direct the investment of their contributions into various investment options offered by the Plan. Each participant's account is credited with the participant contributions, and earnings or losses thereon. The Plan pays Plan expenses from its assets, and the majority of administrative expenses are paid by participants as a reduction of investment income. Each participant's account is charged with the amount of distribution taken and an allocation of administrative expenses. The available investment options for participants of the Plan include various mutual funds, guaranteed investment contracts, and a self-directed brokerage account. Among other investments, the Plan lineup offers a suite of 13 target date funds. A target date fund is an investment vehicle that offers an all-in-one retirement solution through a portfolio of underlying funds that gradually shifts to become more conservative as the assumed target retirement year approaches. Managers make changes to the allocation to stocks, bonds, and cash over time, and these shifts are referred to as a fund's "glide path." The underlying mutual funds that target date fund managers choose to represent each asset class can be "actively" or "passively" managed. Funds are "actively" managed when the investment manager is responsible for deciding which securities should be bought and sold and in which quantities. On the other hand, "passively" managed funds simply track an establish market index. In their Amended Complaint, the Plaintiffs in part argue that the Defendants failed to monitor the average expense ratios charged to similar sized plans. They allege that participants in the Plan were offered an "exceedingly expensive menu of investment options, clearly demonstrating that Defendants neglected to benchmark the costs of the Plan lineup or consider ways in which to lessen the fee burden on participants during the pertinent period." From 2014 through 2018, the Plaintiffs allege that the Plan paid out investment management fees of 0.45% to 0.47% of its total assets, considerably more than those of comparable plans. The Plaintiffs' Amended Complaint also challenges the inclusion of three specific funds in that menu: i. The Fidelity Freedom Fund ("Active suite"); ii. The John Hancock Disciplined Value Fund; and iii. The Baron Small Cap Fund. The Plaintiffs' primary claim in the case is that the Defendants breached their duty of imprudence in continuing to offer the Active suite, the John Hancock Fund, and the Baron Fund as investment options in the Plan, despite their deficiencies. With respect to the John Hancock and Baron Funds, the Plaintiffs provide data comparing each fund to the benchmarks selected by the funds' managers, as well as their peer groups as identified by Morningstar. The data suggests that each fund was underperforming their benchmarks and peer groups on both annualized bases, as well as on rolling five- and ten-year bases. In their Motion to Dismiss, the Defendants' primarily argue that the Plaintiffs have failed to state a plausible claim for relief because they cannot use the passively-managed Index suite as a benchmark for the actively-managed Active suite. District Judge Richard D. Bennett opines that the Defendants' arguments with respect to the selection of the Index suite as the Active suite's benchmark do not compel dismissal of the Plaintiffs' Complaint. Moreover, the Judge says, even if this were the proper stage to consider the use of the Index suite as a benchmark, the case is distinguishable from the California court's opinion in Davis v. Salesforce.com, Inc., as the Plaintiffs' have based their claim for imprudence on numerous other grounds. With respect to the Active suite, the Plaintiffs have not only alleged that the Active suite underperformed in comparison to the Index suite, but also that the Active suite saw an outflow of investment, as well as received criticism from different financial news and reporting services. Additionally, the Defendants do not challenge the manager-selected identified as the benchmarks for the other allegedly underperforming John Hancock and Baron Funds. Finally, in addition to claiming imprudence based on the retention of the Active suite, John Hancock, and Baron Funds, the Plaintiffs also assert that the Defendants failed to prudently monitor the Plan's expenses as a whole, alleging the aggregate amount of investment management fees paid by the Plan between 2014 and 2018 was 0.46-0.48% of its total assets, far in excess of the average total plan cost of 0.28% for comparable plans. Given these numerous factual allegations, the Plaintiffs have plausibly stated a claim to relief under Count I of their Amended Complaint, Judge Bennett concludes. In Count II of their Amended Complaint, the Plaintiffs assert that Defendant MedStar is responsible for appointing, overseeing, and removing members of the Administrative Committee, who, in turn, are responsible for appointing, overseeing, and removing members of the Committee. The Amended Complaint continues, stating that "in light of its appointment and supervisory authority, MedStar had a fiduciary responsibility to monitor the performance of the Committee and its members" and both MedStar and the Administrative Committee "had a fiduciary responsibility to monitor the performance of the members of the Committee." As the Plaintiffs' allegations are sufficient to make a plausible claim that the Defendants breached their fiduciary duties, such allegations also implicate their duty to monitor, Judge Bennett finds. He holds that the Plaintiffs' substantive allegations concerning the Defendants' relationships to one another and the Plan are sufficient to support the Plaintiffs' monitoring claims. In Count III of their Amended Complaint, the Plaintiffs assert in the alternative to their claims for breach of fiduciary duty and failure to monitor that to the extent any of the Defendants are not found to be fiduciaries or co-fiduciaries under ERISA, each such Defendant should be liable for the conduct at issue in sthe case. The Plaintiffs contend that all Defendants allegedly possessed the requisite knowledge and information to avoid fiduciary breaches at issue here and allegedly knowingly participated in breaches of fiduciary duty by permitting the Plan to offer a menu of poor and expensive investment options. Given the allegations with respect to the roles and relationships of the Defendants identified in the Complaint, dismissing their claim under Count III at this time would be premature. Judge Bennett holds that the Plaintiffs have stated a plausible claim for relief. For these reasons, the Defendants' Motion to Dismiss is denied. A full-text copy of the Court's Memorandum Opinion dated Feb. 4, 2021, is available at https://tinyurl.com/4f3ancok from Leagle.com. MENORAH PARK: Class of Nurses Conditionally Certified in Thompson ----------------------------------------------------------------- In the lawsuit entitled KEISHA THOMPSON, on behalf of herself and all other similarly situated, Plaintiff v. MENORAH PARK CENTER FOR SENIOR LIVING BET MOSHAV ZEKENIM HADATI, Defendant, Case No. 1:17cv2580 (N.D. Ohio), the U.S. District Court for the Northern District of Ohio grants the Plaintiff's Motion for Conditional Certification, Expedited Opt-In Discovery and Court Supervised Notice to Potential Opt-In Plaintiffs. Plaintiff Thompson brings thecollective and class action against Defendant Menorah for alleged unpaid wages on behalf of a class defined as: All former and current hourly RNs, LPNs, and nursing assistants employed by Menorah Park Center for Senior Living Bet Moshav Zekenim Hadati during any period of time between January 11, 2015 and the present. According to the Plaintiff, the collective class members are similarly situated as they were all classified by Menorah as non-exempt, hourly employees and all were subject to the same alleged FLSA-violative policies of not being paid for all hours worked and not being paid at the statutory overtime rate for hours worked that exceeded forty hours in a given week. More specifically, the Plaintiff alleges that she and the putative collective and class members were required to clock out at the end of their shifts but were expected to complete work such as completing patient charting, other documentation, patient care and various other nursing duties while off the clock. The Plaintiff and two opt-in Plaintiffs have submitted declarations declaring all three and the putative class were subject to the same FLSA-violative policies. Defendant Menorah was established in 1906 and currently operates a 360-bed nursing home facility in Beachwood, Ohio, for long term care patients and short term post-hospital rehabilitation patients. Menorah opposes the Motion for Conditional Certification, contending the Plaintiffs are not similarly situated, are not representative of the class since they have not worked for Menorah in the last three years, were largely part-time employees and many other employees attest that they have been paid for all hours worked and were paid the statutory rate for hours worked beyond forty hours per week. Moreover, it argues that the Plaintiff has not demonstrated any alleged FLSA violation by Menorah was willful and, therefore, the applicable time frame should be two years. In their Reply, the Plaintiffs argue that Menorah's defenses concern factual disputes, which are inappropriate for the Court to consider at the first stage of the certification process. Having considered the arguments and evidence submitted by the parties, the Court finds that at this stage of the proceedings, the Plaintiffs have met their "modest" burden and are entitled to conditional certification by their Declarations. Thompson's Declaration asserts she was a Registered Nurse that worked for Menorah from April to December 2017. Thompson further declares she was required to clock out but then perform additional work for Menorah without being paid. Opt-In Plaintiff Rhonda Jackson attests she was a Nursing Assistant with Menorah from September 2008 to October 2016. Jackson declares she was required to keep working after clocking out. Shantee Wilburn is another opt-in Plaintiff, who worked for Menorah from July 2016 to June 2017 as a Nursing Assistant. Wilburn's declaration mirrors that of Jackson and Thompson. Senior District Judge Christopher A. Boyko holds that these Declarations are sufficient to meet the Plaintiffs' modest burden to show that the Plaintiff, Opt-In Plaintiffs and members of the putative class were all subject to the same FLSA-violative pay policies. The Defendant disputes that that Plaintiffs worked full time, worked overtime or have personal knowledge that other employees were subject to the same alleged FLSA-violative policies as the Plaintiffs. However, Judge Boyko notes, as caselaw makes clear, these factual challenges are not to be considered at the first stage of conditional certification when discovery has not been completed and the Plaintiff bears only a modest burden to show they are similarly situated to the purported collective. Judge Boyko adds that it is sufficient for this stage that the Plaintiffs have established a Menorah policy or practice that applies to the purported class and have advanced arguments that the policy violates the FLSA. Menorah has filed separately a Motion to Strike Specified Paragraphs Submitted by the Plaintiff. It seeks to strike those portions of the Plaintiff's and the Opt-In Plaintiffs' Declarations wherein they declare they "observed" the allegedly unlawful pay practices of Menorah were applied to other workers and declare they are similarly situated to other employees of Menorah. The Court denies the Motion as the Plaintiff relies on Rule 12f of the Federal Rules of Civil Procedure, which applies solely to pleadings. Moreover, the Plaintiffs' observations are not speculation but are purportedly based on their personal knowledge. While Menorah contends they could not have observed the pay practices of other employees or observed employees in other areas of Menorah's facilities, these are questions that go to credibility, which the Court does not address at conditional certification, Judge Boyko holds. Furthermore, the Plaintiffs will be subject to depositions where Menorah may question them at length. While Menorah contends the Plaintiffs' declarations that they are similarly situated to other employees is a legal conclusion, the Court finds that it is based on their observations of hours worked off the clock over forty hours and their observations that other employees were not paid for working off the clock or at the statutory overtime rate per Menorah policy. Therefore, the Court denies Menorah's Motion to Strike. Lastly, Menorah argues the relevant time period should be two years and not three as the Plaintiffs have produced no evidence that Menorah's alleged FLSA-violative pay practices were willful. However, as the Plaintiff points out, this is a merits determination to be resolved after discovery, Judge Boyko points out. Therefore, the Court grants the Plaintiff's Motion for Conditional Certification. It orders expedited discovery as outlined in the Plaintiff's proposed order approved by the Court and docketed herein. The Court also approves the Notice as attached at ECF # 43-5. A full-text copy of the Court's Opinion and Order dated Feb. 4, 2021, is available at https://tinyurl.com/1lumjomc from Leagle.com. MERCEDES-BENZ USA: Faces Class Action Over Radiator Guards ---------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Mercedes-Benz class action lawsuit has been filed over radiator guards that are allegedly needed to protect against damage from rocks and other debris that cause damaged radiators and coolant leaks. According to the Mercedes class action lawsuit, these models were formally equipped with wire mesh guards or injection-molded ABS plastic to protect the aluminum radiators from rocks and pebbles. 2016-present Mercedes-Benz AMG GT 2016-present Mercedes-Benz AMG C43 2016-present Mercedes-Benz AMG C63 2016-present Mercedes-Benz AMG CLS63 2016-present Mercedes-Benz AMG E43 2016-present Mercedes-Benz AMG E63 2016-present Mercedes-Benz AMG S63 2016-present Mercedes-Benz AMG S65 2016-present Mercedes-Benz AMG SL63 2016-present Mercedes-Benz AMG SL65 2016-present Mercedes-Benz AMG SLC43 2016-present Mercedes-Benz AMG SLC63 2016-present Mercedes-Benz AMG G63 2016-present Mercedes-Benz AMG G65 2016-present Mercedes-Benz AMG GLC43 2016-present Mercedes-Benz AMG GLC63 2016-present Mercedes-Benz AMG GLE43 2016-present Mercedes-Benz AMG GLE63 2016-present Mercedes-Benz AMG GLS63 The Mercedes class action alleges the front bumper covers and air inlets were equipped with protective grilles prior to 2016 model years, which allegedly means Mercedes knew the vehicles needed the guards. Rocks that strike the radiator cause leaking coolant which leads to insufficient coolant system pressure, a warped head and catastrophic engine failure. California plaintiff Hagop Hadjian purchased a new 2016 Mercedes-Benz AMG C63S, but within the first year he allegedly noticed fluid was leaking and a warning appeared about low coolant. The plaintiff took his vehicle to a Mercedes dealership on March 27, 2017, and complained about the coolant leak and low coolant warning. The technician performed a coolant pressure test and allegedly found, "INTERCOOLER FOR LOW CIRCUIT TURBO SYSTEM HAS A TINNY (sic) HOLE FROM ROAD SOME MATERIAL. ESTIMATE PROVIDED. CUSTOMER DECLINED REPAIR, CLIENT WAS ADVISED THE (sic) THIS COULD CAUSE MORE DAMAGE EVEN TO THE ENGINE IF NOT REPAIRED." Even though the vehicle was less than a year old and had only 9,000 miles on it, the class action lawsuit says the Mercedes dealer refused to cover repairs under warranty. The plaintiff says he took his vehicle to a different Mercedes dealership which agreed to cover the labor costs for replacing the low-temperature turbo radiator in his vehicle, but charged him $1,050 for the repair. However, the plaintiff alleges his radiator is still exposed to rocks and debris because there are no guards or covers to prevent the problem. In May 2019, Mercedes-Benz announced Service Campaign 2019040010 for E-Class and GLC-Class vehicles to install grilles to protect the radiators. "Daimler AG ("DAG"), the manufacturer of Mercedes-Benz vehicles, has determined that on certain Model Year ("MY") 2018-2019 E-Class and GLC-Class (213, 253 platform) vehicles, the installed stone chip guard does not correspond to current production specifications. As a result, this may allow stones to contact the radiator." - Service Campaign 2019040010 According to the Mercedes class action lawsuit, owners may have to pay up to $80,000 to replace engines that fail due to overheating from coolant leaks, and even replacing damaged radiators and associated components gets expensive. The class action also alleges Mercedes must know about the problems based on customer complaints and the "sheer number and cost of engine and radiator replacements." The Mercedes-Benz class action lawsuit was filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division: Hadjian, et al., v. Mercedes-Benz USA, LLC. The plaintiff is represented by Berger Montague PC, and Capstone Law APC. [GN] MERCEDES-BENZ USA: Faces Hadjian Suit in Northern Dist. of Georgia ------------------------------------------------------------------ A class action lawsuit has been filed against Mercedes-Benz USA, LLC. The case is captioned as Hadjian v. Mercedes-Benz USA, LLC, Case No. 1:21-cv-00469-SCJ (N.D. Ga., Jan. 29, 2021). The nature of suit states as contract product liability. The case is assigned to the Hon. Judge Steve C. Jones. Mercedes-Benz USA is the distributor for passenger cars of Daimler AG in the United States located in Sandy Springs, Georgia, USA. It is a subsidiary of Daimler AG and today sells cars from the Mercedes-Benz brand.[BN] The Plaintiff is represented by: E. Michelle Drake, Esq. Russell D. Paul, Esq. BERGER & MONTAGUE, P.C. -- MN 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net MERCEDES-BENZ USA: Zaroukian Sues Over Defective Panoramic Sunroofs ------------------------------------------------------------------- HILARET ZAROUKIAN, individually and on behalf of all others similarly situated v. MERCEDES-BENZ USA, LLC and DAIMLER AG, Case No. 1:21-cv-00472-MLB D (N.D. Ga., Jan. 29, 2021) alleges that the Mercedes vehicles suffer from an inherent design, manufacturing and/or materials defect whereby their panoramic sunroofs spontaneously shatter without outside influence. The Plaintiff contends that the alleged defect is inherent in every Mercedes vehicle equipped with a panoramic sunroof (the Class Vehicles.) Panoramic sunroofs are aesthetically pleasing and command a premium price. They also pose new and significant engineering challenges. Replacing metal portions of automobile roofs with large sections of glass requires precision in the strengthening, attachment, and stabilization of the glass. Allegedly, Mercedes, along with other manufacturers, failed to meet these engineering challenges, with at least three manufacturers issuing safety recalls due to the panoramic sunroofs' propensity to spontaneously shatter. Historically, automobile sunroofs have been modestly sized, spanning just a small portion of the roof over the driver and front passenger seats. Starting in the mid-2000s, automobile manufacturers expanded sunroofs in size so that now on some vehicles a sunroof (i.e., sheet(s) of glass) accounts for nearly the entire roof of a vehicle. These expanded sunroofs are often referred to as "panoramic." Plaintiff Hilaret Zaroukian is a citizen of the State of California residing in Los Angeles County. Defendant Mercedes-Benz designs, manufactures, markets, distributes, and sells Mercedes automobiles in multiple locations in the United States and worldwide. Defendant Daimler AG is a foreign corporation headquartered in Stuttgart, Baden-Wurttemberg, Germany. Daimler AG is engaged in the business of designing, engineering, manufacturing, testing, marketing, supplying, selling, and distributing motor vehicles, including the Class Vehicles, in the United States. Daimler AG also developed, reviewed, and approved the marketing and advertising campaigns designed to sell the Class Vehicles. Daimler AG is the parent of, controls, and communicates with Mercedes-Benz USA, LLC concerning virtually all aspects of the Class Vehicles distributed in the United States. Mercedes-Benz USA, LLC acts as the sole distributor for Mercedes-Benz vehicles in the United States, purchasing those vehicles from Daimler AG in Germany for sale in this country.[BN] The Plaintiff is represented by: Rachel Soffin, Esq. Mark E. Silvey, Esq. Gregory F. Coleman, Esq. Adam A. Edwards, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: rachel@gregcolemanlaw.com mark@gregcolemanlaw.com greg@gregcolemanlaw.com adam@gregcolemanlaw.com - and - Steven R. Weinmann, Esq. Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Steven.Weinmann@capstonelawyers.com Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com - and - Joshua H. Haffner, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2625 Los Angeles, CA 90071 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 E-mail: jhh@haffnerlawyers.com gl@haffnerlawyers.com MICHIGAN: Court Dismisses Most Claims in Richards v. Whitmer ------------------------------------------------------------ The U.S. District Court for the Western District of Michigan dismissed most of the claims in the lawsuit styled KYLE B. RICHARDS, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case No. 2:20-cv-122 (W.D. Mich.). The Plaintiff is presently incarcerated with the Michigan Department of Corrections ("MDOC") at the Baraga Correctional Facility ("AMF") in Baraga, Baraga County, Michigan. The events about which he complains occurred at that facility. The Plaintiff sues Michigan Governor Gretchen Whitmer and MDOC Director Heidi Washington. The Plaintiff also sues AMF staff Warden Kristopher Taskila and Resident Unit Manager Unknown Perttu. The case is a civil rights action brought by a state prisoner under 42 U.S.C. Section 1983 and, purportedly, under various other federal and international laws. Originally, the Plaintiff filed his complaint with the U.S. District Court for the Eastern District of Michigan. On July 15, 2020, that court ordered the Plaintiff's case transferred to the Western District of Michigan, which was effectuated the following day. On July 28, 2020, this Court granted the Plaintiff's request for leave to proceed with pauper status, noting that although he had at least three strikes within the meaning of 28 U.S.C. Section 1915(g), he had sufficiently alleged imminent danger under the exception provided by that subsection. When the Court granted Plaintiff leave to proceed with pauper status, it informed him that it would screen the complaint under 28 U.S.C. Sections 1915(e), 1915A and/or 42 U.S.C. Section 1997e(c)(1) and will determine whether dismissal or service of process is appropriate. Yet, the Plaintiff has shown little interest in waiting. In the time since the Court informed the Plaintiff that it would screen the complaint, he has filed 10 motions with the Court; five "supplements" either to the complaint or to pending motions; and sent numerous letters to the Clerk of the Court requesting, among other items, forms for issuing subpoenas. Upon notification that the Plaintiff had served or attempted to serve subpoenas on the Macomb County Prosecutor's Office--directing the office to send him "[a]ll child pornographic materials that have been collected or prosecuted by Macomb County within the last 30 years," including both photographs and videos--and on the Embassy of Japan in the United States, the Court quashed both subpoenas as abusive. The Court further ordered the Plaintiff to cease serving subpoenas without the Court's authorization and to file a response indicating the status of the other subpoena forms issued by the Clerk of the Court. In response to the Court's order, the Plaintiff filed two notices of interlocutory appeal challenging the order, a motion requesting leave to appeal with pauper status, an objection to the Court's order, a motion for reconsideration of the Court's order, and a response to the Court's order. Thus, presently before the Court is the complaint and a series of the Plaintiff's pending motions. Under Rule 21 of the Federal Rules of Civil Procedure, a court may at any time, with or without motion, add or drop a party for misjoinder or nonjoinder. Applying this standard, the Court will dismiss without prejudice Defendants Whitmer, Washington, and Taskila because they are misjoined. Further, under the Prison Litigation Reform Act ("PLRA"), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. The Court says it must read the Plaintiff's pro se complaint indulgently, citing Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept the Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. The Court will dismiss all claims against Defendant Perttu except for the Plaintiff's Eighth Amendment claims related to physical assaults. District Judge Hala Y. Jarbou notes that although the body of the Plaintiff's complaint exceeds 30 pages and is organized into 13 claims, the complaint contains relatively few factual allegations giving rise to a claim under Section 1983 or any other law. The Plaintiff's few factual allegations relate to the multiple physical attacks he has endured and believes he will continue to endure while in prison. The Plaintiff believes he has been targeted because, as he asserts, he identifies as a bisexual child lover ("BCL"), pedophile, and pedosexual, and "pedophiles in prison are frequent targets of violence." Connected to this identification, the Plaintiff alleges that he was attacked at least 10 times in 2020. The assailants in most of these attacks allegedly referenced the Plaintiff's attraction to children. The Plaintiff contends that these attacks are hate crimes within the description of 34 U.S.C. Section 30501 because he was, and continues to be, targeted for his sexual orientation. The Plaintiff appears to focus his first claim, however, on an argument that the Defendants have been dismissive that his allegations constitute hate-based violence under Section 30501. Additionally, Defendant Perttu allegedly responded to the attacks on April 5, May 7, and June 15, 2020, but Perttu "refused to lock any of the assailants up, or even remove them from the Plaintiff's environment." The Plaintiff further alleges, among other things, that the MDOC does not adequately protect him. He asserts that the MDOC does not place prisoners who identify as pedophiles in special housing. The Plaintiff alleges that Defendants Whitmer, Washington, and Taskila are aware that he has been attacked, but they have not provided alternative housing. He further alleges that his mother called Defendant Whitmer's office and spoke with her directly, but that Whitmer's responses "were legally defensive, evasive, and geared at avoiding liability." Much of the complaint--claims 7 to 13--has no connection to, or mention of, any of the Defendants. Instead, the Plaintiff challenges the constitutionality of numerous child pornography and obscenity criminal statutes found within Title 18 of the United States Code. The Plaintiff asks that the Court issue declaratory judgments finding 18 U.S.C. Sections 1460-1470 and 2250-2260 constitutionally invalid. The Plaintiff further requests that the Court "fashion a new rule of law" to overturn the obscenity test adopted by the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973). To justify these measures, the Plaintiff offers several arguments, including that the statutes unlawfully discriminate against those who identify as child lovers, pedophiles, and pedosexuals. For relief, the Plaintiff seeks $930,000 in damages, as well as injunctive and declaratory relief. The Plaintiff further alleges that Defendant Perttu has been deliberately indifferent to his safety and well-being by encouraging other prisoners to attack him and failing to discipline prisoners when they did attack him. The Plaintiff purports that Defendant Perttu's conduct violated the Eighth and Fourteenth Amendments, as well as what he identifies as two international treaties: the Universal Declaration of Human Rights (UDHR) and the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Upon initial review, the Court determines that the Plaintiff has alleged facts sufficient to state an Eighth Amendment Claim against Defendant Perttu. Judge Jarbou also finds that the Plaintiff's Fourteenth Amendment claim appears to be grounded in his belief that prisoners, who have attacked him because he identifies as a BCL, pedophile, and pedosexual should be prosecuted for hate crimes, yet these prisoners have not been charged. The Plaintiff is essentially alleging that Defendant Perttu violated his constitutional rights by failing to pursue an investigation and criminal prosecution of his attackers. Judge Jarbou opines that the Plaintiff cannot compel a criminal prosecution because private citizens, whether or not they are incarcerated, cannot compel a criminal prosecution of another. Therefore, the Plaintiff fails to state a Fourteenth Amendment claim against Defendant Perttu. Although the Plaintiff purports to bring his claims under both the UDHR and CAT, he has not articulated on what basis he believes Defendant Perttu--or any of the other Defendants--has violated either international agreement, Judge Jarbou holds. Indeed, the Plaintiff cannot. The Supreme Court has determined that the UDHR is merely aspirational and "does not of its own force impose obligations as a matter of international law." Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004). Accordingly, the Plaintiff is unable to sustain a claim under either the UDHR or the CAT. To the extent the Plaintiff attempts to bring a claim against Defendant Perttu within Claims 3 to 13 of the complaint, he fails to state a claim, Judge Jarbou holds. The Plaintiff mentions Defendant Perttu only twice within the entire span of Claims 3 to 13, and his allegations are entirely void of specific conduct. The Plaintiff's allegations against Defendant Perttu found in Claims 3 to 13, therefore, fall far short of the minimal pleading standards under Rule 8 of the Federal Rules of Civil Procedure. As a consequence, the Plaintiff's claims against Defendant Perttu in Claims 3 to 13 must be dismissed. The Plaintiff indicates that he intends his complaint to serve as the basis for a class action against the Defendants. He further requests that the Court certify three classes: (1) persons convicted of crimes related to child pornography who have been discriminated against or denied safety while in prison; (2) Queer individuals who identify as a child lovers, pedosexuals, or pedophiles and have been threatened, assaulted, or harassed based on their sexual orientation; and (3) Queer individuals who identify as a child lovers, pedosexuals, or pedophiles who have been discriminated against or denied services in prison based on their sexual orientation. Because the Plaintiff is an incarcerated pro se litigant, the Court finds that he is not an appropriate representative of a class. Therefore, the Court will deny the Plaintiff's request for class certification. The Plaintiff has also requested appointment of counsel to represent him in this action. Judge Jarbou notes that appointment of counsel is a privilege that is justified only in exceptional circumstances. Notwithstanding the Plaintiff's argument in favor of appointment, he has been an active litigant who has demonstrated that he is highly capable of presenting his position. Therefore, the Court will deny the Plaintiff's motions for appointment of counsel at this juncture. The Plaintiff has also filed a motion requesting that the Court expedite screening. Despite delays, the Court has now screened the complaint. The Court will, therefore, deny the Plaintiff's motion as moot. In his fourth pending motion, the Plaintiff asks to transfer the case to the Eastern District of Michigan, because Defendant Perttu claims to have told the Plaintiff that he had spoken to "the presiding judge," has developed a relationship with said judge, and that the said judge had told Perttu that the case would be dismissed. In addition, Defendant Perttu allegedly told the Plaintiff that he personally knew the other judges in this district and that MDOC officials work closely with this Court. The Plaintiff claims that, in light of the ex parte communications and the relationships between Defendant Perttu and this Court, disqualification of Judge Jarbou and transfer of venue are required. Notwithstanding Plaintiff's allegations about what Defendant Perttu might have told him, this Court has no personal relationship with Defendant Perttu or any other MDOC official, Judge Jarbou holds. Indeed, the Plaintiff's action was reassigned from Judge Maloney to Judge Jarbou for unrelated reasons while this motion was pending. Judge Jarbou has never engaged in any ex parte discussions concerning the Plaintiff's lawsuits with any state official. Because the Court has no bias against the Plaintiff, disqualification is unwarranted. Additionally, because the Plaintiff's motion to transfer venue is wholly dependent on his unsubstantiated claim of judicial bias, the motion will be denied. The Plaintiff has filed a motion for a preliminary injunction specifically requesting an order to freeze federal aid to the State of Michigan. As a preliminary matter, the Plaintiff has failed to demonstrate that the injunctive relief he seeks is available to him, Judge Jarbou says. After initial screening, Defendant Perttu is the only Defendant who remains in the case. Yet, the Plaintiff seeks injunctive relief against a non-party--the United States. The relief he requests is extraordinarily intrusive, attempts to control the United States in its direction of funds to the State of Michigan, and would cause drastic harm to the State of Michigan, Judge Jarbou opines. The relief requested in the Plaintiff's motion, therefore, utterly fails to comply with the strictures of Section 3626(a)(2). Accordingly, the Court will deny the Plaintiff's motion. The Plaintiff has filed a motion requesting a federal investigation and further requesting ongoing monitoring. The Plaintiff justifies his request with assertions that Defendant Perttu and non-party Officer Hill have allegedly altered the Plaintiff's filings and that non-party MDOC employee Sandin may enter an appearance in this case on the Plaintiff's behalf. The Court has carefully reviewed the Plaintiff's filings and found nothing to suggest that they have been fraudulently altered by Defendant Perttu or Officer Hill. Moreover, neither MDOC employee Sandin nor anyone else has attempted to enter an appearance on the Plaintiff's behalf. Absent any evidence validating the Plaintiff's dubious allegations, the Court will deny his motion. Upon discovering that the Plaintiff had co-opted the authority of the Court by serving subpoenas soliciting child pornography and that he abused the process by attempting to serve a subpoena on a Foreign Sovereign before his complaint was screened, the Court issued an order quashing those subpoenas and issuing the Plaintiff sanctions under Rule 45. The Plaintiff has filed an objection and motion for reconsideration. Upon review and for the reasons previously set forth, this Court finds no error in its order, and the Plaintiff's Objection and Motion for Reconsideration fails to meet the standard set forth by Rule 7.4(a). Accordingly, the Court will deny the Plaintiff's objection and motion for reconsideration. Conclusion Having conducted the review under Rule 21 of the Federal Rules of Civil Procedure, the Court determines that Defendants Whitmer, Washington, and Taskila will be dropped from this action. The Plaintiff's claims against these Defendants will be dismissed without prejudice. Having further performed the review required by the PLRA, the Court will also dismiss, for failure to state a claim, all claims against Defendant Perttu except for Eighth Amendment claims. The Plaintiff's Eighth Amendment claims against Defendant Perttu, specifically related to the encouragement of prisoners to attack the Plaintiff, remain in the case. A full-text copy of the Court's Opinion dated Feb. 4, 2021, is available at https://tinyurl.com/5fqb4baf from Leagle.com. MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit ---------------------------------------------------------------- Microchip Technology Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2021, for the quarterly period ended December 31, 2020, that discovery is ongoing in the putative class action suit entitled, Jackson v. Microchip Technology Inc., et al., Case No. 2:18-cv-02914-JJT. Beginning on September 14, 2018, the Company and certain of its officers were named in two putative shareholder class action lawsuits filed in the United States District Court for the District of Arizona, captioned Jackson v. Microchip Technology Inc., et al., Case No. 2:18-cv-02914-JJT and Maknissian v. Microchip Technology Inc., et al., Case No. 2:18-cv-02924-JJT. On November 13, 2018, the Maknissian complaint was voluntarily dismissed. The Jackson complaint is allegedly brought on behalf of a putative class of purchasers of Microchip common stock between March 2, 2018 and August 9, 2018. The complaint asserts claims for alleged violations of the federal securities laws and generally alleges that the defendants issued materially false and misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects during the putative class period. The complaint seeks, among other things, compensatory damages and attorneys' fees and costs on behalf of the putative class. On December 11, 2018, the Court issued an order appointing the lead plaintiff. An amended complaint was filed on February 22, 2019. Defendants filed a motion to dismiss the amended complaint on April 1, 2019, which motion was granted in part and denied in part on March 11, 2020. The class certification was filed by the plaintiff on September 11, 2020, and defendants filed their response and statement of non-opposition on October 16, 2020. Discovery is ongoing. Microchip Technology Inc. develops and manufactures semiconductor products for various embedded control applications worldwide. The company, which was incorporated in 1989, is based in Chandler, Arizona. MIDLAND CREDIT: Faces Silverman FDCPA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is captioned as David Silverman v. Midland Credit Management, Inc., Case No. 7:21-cv-00841-NSR (S.D.N.Y., Jan. 29, 2021). The suit alleges violations of the Fair Debt Collection Practices Act involving consumer credit. The case is assigned to the Hon. Judge Nelson Stephen Roman. MCM provides debt recovery solutions for consumers across a broad range of assets. MCM purchases portfolios of defaulted consumer receivables and manages them by partnering with its consumers as they repay their obligations and work toward financial recovery.[BN] The Plaintiff is represented by: Jonathan Mark Cader, Esq. Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500, 5th Floor Garden City, NY 11530 Telephone: (516) 203-7600 E-mail: jcader@barshaysanders.com csanders@barshaysanders.com MIDTOWN INVESTMENTS: Website Lacks Accessibility Info, Garcia Says ------------------------------------------------------------------ ORLANDO GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. MIDTOWN INVESTMENTS, INC. and DOES 1-10, Defendant, Case No. 21STCV04836 (Cal. Super., Los Angeles Cty., February 8, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act and the Unruh Civil Rights Act. The case arises from the Defendant's failure to provide information about the accessible features in the rooms at the Rotex Hotel on its reservation Website at https://rotexhotel.info/ for people with disabilities, including the Plaintiff. The Website reservation system lacks sufficient information needed by disabled travelers to assess independently whether a given hotel room would work for them. As a result, the Plaintiff is unable to engage in an online booking of the hotel room with any confidence or knowledge about whether the room will actually work for him due to his disability, the suit says. Midtown Investments, Inc. is an owner and operator of the Rotex Hotel located at 3411 W. Olympic Blvd., Los Angeles, California. [BN] The Plaintiff is represented by: Raymond Ballister Jr., Esq. Russell Handy, Esq. Amanda Seabock, Esq. Zachary Best, Esq. CENTER FOR DISABILITY ACCESS 8033 Linda Vista Road, Suite 200 San Diego, CA 92111 Telephone: (858) 375-7385 Facsimile: (888) 422-5191 E-mail: amandas@potterhandy.com MILLER COUNTY, AR: Grissom's Bid to Certify Inmates Class Denied ---------------------------------------------------------------- Magistrate Judge Barry A. Bryant of the U.S. District Court for the Western District of Arkansas denies the Plaintiff's motion for class certification in the lawsuit styled CHARLES D. GRISSOM, JR., Plaintiff v. JACKIE RUNION, Sheriff Miller County; JEFFIE WALKER, Warden Miller County Detention Center; Center ("OCDC"); SOUTHERN HEATH CARE PARTNER; and NURSE STEVEN KING, Defendants, Case No. 4:21-cv-4003 (W.D. Ark.). The Plaintiff filed the pro se civil rights pursuant to 42 U.S.C. Section 1983 on January 26, 2021. His application to proceed in forma pauperis was granted that same day. Currently before the Court is the Plaintiff's "Class Certification Motion Pursuant to Civil Rule 23.2 Action Relating to Uncorported Association." Service was ordered on the Defendants on January 26, 2021. To date, it appears no Defendants have been formally served. The Court has determined no response is necessary from the Defendants to rule the on instant motion and, therefore, the issue is ripe for consideration. In his Motion, the Plaintiff represents to the Court that 15 other Miller County Detention Center inmates wish to join the case as Plaintiffs and proceed as a class action lawsuit. He goes on to state, "Plaintiff, Charles D. Grissom Jr. Et Al advocate this Class Certification Motion as to assist the aboved Plaintiff's in this Class Action as an Hold." The Plaintiff identifies the following inmates in the caption of his motion as those who desire to join in the lawsuit: Dannie Tackett, Tony Fullbright, Robbert Harmon, Gergory Williams, Kenny Howard, Robbert Dodge, Timmothy Jordan, Williams Boswell, Tony Taylor, David Smith, Jose L. Aguilar, Kenneth Baradshaw, Micheal Roberts, Richard L. Smith, and Troy C. Terry. Under Rule 23(a) of the Federal Rules of Civil Procedure, a plaintiff can sue as a representative of or on behalf of parties only if: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." In particular, because of the requirement under Rule 23(a)(4) that a class have adequate representation, courts have repeatedly declined to allow pro se prisoners to represent a class in a class action, Judge Bryant notes. Because the Plaintiff is not a licensed attorney, he cannot satisfy the requirements of either Rule 23(a) or Rule 23(g). He can, therefore, only bring the claims in his individual capacity and not on behalf of a class. As previously stated, the Plaintiff is attempting to add 15 inmates currently incarcerated in the Miller County Detention Center as Plaintiffs in the action. As interpreted by relevant case law, the Prison Litigation Reform Act requires each prisoner who brings a civil action to submit a separate complaint and a separate application to proceed in forma pauperis. Accordingly, the Plaintiff's motion for "Class Certification Motion Pursuant to Civil Rule 23.2 Action Relating to Uncorported Association" is denied. The Clerk is directed to mail a 1983 Prisoner Litigation Packet to each of the following 15 new prospective Plaintiffs at the Miller County Detention Center: * Dannie Tackett; * Tony Fullbright; * Robert Harmon; * Gergory (Gregory) Williams; * Kenny Howard; * Robert Dodge; * Timmothy (Timothy) Jordan; * Williams Boswell; * Tony Taylor; * David Smith; * Jose L. Aguilar; * Kenneth Baradshaw (Bradshaw); * Michael Roberts; * Richard L. Smith; and * Troy C. Terry. A full-text copy of the Court's Order dated Feb. 4, 2021, is available at https://tinyurl.com/53nkyknj from Leagle.com. MODERN ROOFING: Faces Restrepo Suit Over Unpaid Wages, Retaliation ------------------------------------------------------------------ CARLOS E. RESTREPO, individually and on behalf of all others similarly situated, Plaintiff v. MODERN ROOFING EXPERTS, INC., a/k/a MODERN ROOFING EXPERTS DBA MCE, LUIS D. FERNANDEZ, and MONIKA NEUVIRTHOVA, Defendants, Case No. 2:21-cv-14080 (S.D. Fla., February 9, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and Class members appropriate minimum wage and overtime pay for all hours worked, failing to keep accurate time records, and terminating employment based on retaliation. The Plaintiff was hired by the Defendants as a driver from approximately September 01, 2020 to December 24, 2020. Modern Roofing Experts, Inc. is a construction company specialized in commercial and residential roofing, installation of impact windows and doors, and related construction services, with its principal place of business located at 834 SE Lincoln Avenue, Stuart, Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com MONROE COUNTY, NY: Restaurants Allowed to Break COVID Curfew ------------------------------------------------------------ Natalie Kucko, writing for WHAM, reports that some Monroe County business owners feel left out after a class-action lawsuit granted 94 restaurants the ability to stay open past 10 p.m. Saturday night, Feb. 6, tables filled up quickly at Robbie's Bar and Grill. The owner said it's a weight lifted to operate during normal hours. "It's huge. The excitement, I can't even sleep. I've been on cloud nine," said Robbie Tennant, owner of Robbie's Bar and Grill. Yet, Tennant said the pressure is building. "Now I'm a target. I am worried about that, I am worried about the repercussions. Again, we are doing everything we can to make sure we don't ruin this for everyone else," said Tennant. A judge granted Monroe and Erie County restaurants included in the lawsuit a temporary restraining order, but other businesses listed will not be able to return to normal hours this weekend. "We're obviously happy our local businesses are able to start to catch up on what they've lost," said Connie Macleod, general manager of Bathtub Billy's. The Greece restaurant was included in the lawsuit, but not granted permission to stay open past 10 p.m. "We fight to keep our customers here. We have a really good football base. It's just really sad to know it'll be pretty much empty tomorrow," Macleod said, referring to the big game on Feb. 7. "It's very frustrating you can drive two miles down the street and be able to stay until midnight, where here you have to be out by 10 p.m.," said Macleod. The attorney's office said they expect a ruling from a Monroe County Judge later this week for businesses part of the second class, including Bathtub Billy's. [GN] MPC HOLDINGS: Class Certification Bid Stricken in Morris FLSA Suit ------------------------------------------------------------------ In the class action lawsuit captioned as Morris v. MPC Holdings, Inc., Case No. 1:20-cv-02840 (D. Colo.), the Hon. Judge Christine M. Arguello entered an order striking motion to certify Class for failure to comply with D.C.COLO.LCivR 7.1. The suit alleges violation of the Fair Labor Standards Act.[CC] MPC HOLDINGS: Morris Seeks to Certify Class of Day Rate Inspectors ------------------------------------------------------------------ In the class action lawsuit captioned as MARCUS MORRIS v. MPC HOLDINGS, INC. D/B/A PLATTE RIVER INSPECTION SERVICES, Case No. 1:20-cv-02840-CMA-NYW (D. Colo.), the Plaintiff asks the Court to enter an order granting conditional certification of and authorizing notice be sent to: "all current and former inspectors who worked for or on behalf of Platte River Inspection Services and who were paid according to its day rate pay plan in the past three years (the "Day Rate Inspectors"). Mr. Morris worked for Platte River as a Day Rate Inspector performing various roles as a Coating Inspector, Horizontal Drilling Inspector, and Welding Inspector in Colorado. Platte River Inspection Services is an innovative solutions provider in the oil and gas industry. A copy of the Plaintiff's motion to certify class dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/2LFiqrI at no extra charge.[CC] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq Carl A. Fitz, Esq JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com cfitz@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com MUIR LONGBOARD: Quezada Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Muir Longboard Shop, Inc. The case is styled as Jose Quezada, on behalf of himself and all others similarly situated v. Muir Longboard Shop, Inc., Case No. 1:21-cv-01243 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Muir Longboard Shop -- https://www.muirskate.com/ -- run by skateboard enthusiasts focuses solely on quality, custom-assembled longboards.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: marskhaimovlaw@gmail.com NATIONAL FOOTBALL: Gill Sues Over Game Pass Livestream Subscription ------------------------------------------------------------------- SIETEL SINGH GILL, individually and on behalf of other similarly situated individuals, Plaintiffs v. NATIONAL FOOTBALL LEAGUE; NFL ENTERPRISES, LLC; Defendants, Case No. 1:21-cv-01032 (S.D.N.Y., Feb. 4, 2021) is a class action by the Plaintiff and the Class who purchased the Defendants' Game Pass International Weekly or Annual "Pro" Subscription ("Game Pass"), which should have provided uninterrupted live streaming of the February 2, 2020 Super Bowl LIV ("Super Bowl"). The Plaintiff alleges in the complaint that as a result of Defendants' technical or other failures, Game Pass crashed multiple times during the Super Bowl, and the Plaintiff and Class Members were unable to livestream crucial portions of the game, including the final three minutes when the teams were locked in a one-score game. The Defendants' alleged conduct constitutes breach of contract, breach of implied warranty of merchantability, and unjust enrichment for which class redress is warranted. National Football League (NFL) manages a professional sports league. The Company offers news, scores, teams, games, tickets, and other related services. [BN] The Plaintiff is represented by: Karl S. Kronenberger, Esq. KRONENBERGER ROSENFELD, LLP 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: (415) 955-1155 Facsimile: (415) 955-1158 E-mail: karl@KRInternetLaw.com -and- Eugene Rome, Esq. ROME & ASSOCIATES, A.P.C. 2029 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone: (310) 282-0690 Facsimile: (310) 282-0691 E-mail: eugene@romeandassociates.com NECA/IBEW FAMILY: Court Modifies Class Certification in D.T. Suit ----------------------------------------------------------------- In the class action lawsuit captioned as D.T., by and through his parents and guardians, K.T. and W.T., individually, on behalf of similarly situated individuals, and on behalf of the NECA/IBEW Family Medical Care Plan, v. NECA/IBEW FAMILY MEDICAL CARE PLAN, THE BOARD OF TRUSTEES OF THE NECA/IBEW FAMILY MEDICAL CARE PLAN, SALVATORE J. CHILIA, ROBERT P. KLEIN, DARRELL L. MCCUBBINS, GEARY HIGGINS, LAWRENCE J. MOTER, JR., KEVIN TIGHE, JERRY SIMS, AND ANY OTHER INDIVIDUAL MEMBER OF THE BOARD OF TRUSTEES OF NECA/IBEW FAMILY MEDICAL CARE PLAN, Case No. 2:17-cv-00004-RAJ (W.D. Wash.), the Hon. Judge Richard A. Jones entered an order modifying class certification for the purpose of settlement, as follows: "all individuals who: (1) have been, are or will be participants or beneficiaries under the NECA-IBEW Family Medical Care Plan at any time between January 4, 2011 and March 31, 2021, inclusive; and (2) while they were eligible for benefits under the Plan and during the Settlement Class Period incurred out-of-pocket expenses or incurred but not yet paid expenses for neurodevelopmental therapy (speech, occupational or physical therapy) or applied behavior analysis therapy to treat a "Qualified Mental Health Condition." "Qualified Mental Health Condition" shall mean a condition listed in Appendix A of the Settlement Agreement and excluded under the Plan's Development Delay Exclusion. The Court further confirms that the Named Plaintiff D.T., by and through his parents, K.T. and W.T., shall continue as class representative and Richard E. Spoonemore, and Eleanor Hamburger of Sirianni Youtz Spoonemore Hamburger PLLC shall continue as class counsel. A copy of the Court's order modifying class certification for the purpose of settlement dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3rO9teW at no extra charge.[CC] NETFLIX INC: Lancaster Joins Class Action Over Streaming Services ----------------------------------------------------------------- Antelope Valley Press reports that the City has joined a class action complaint against Netflix and Hulu in January over payment for streaming services traveling over broadband wireline facilities that utilize the public right of way. In the complaint, the city says the streaming services are required to pay 5% of their gross revenue derived from their operations in California cities, counties, and joint powers authorities because of the use of those facilities. "Accordingly, Defendants should be and are required by law to pay each of those cities, counties, cities and counties, or joint powers authorities a video service provider fee of up to 5% of their gross revenue, as derived from their providing video service in that city, county, city and county, or joint powers authority," the complaint said. Attorneys from the California law firms of Andrus Anderson and Schneider Wallace Cottrell Konecky, Texas law firm Nix Patterson, and Chicago law firm DiCello Levitt Gutzler filed the complaint on Jan. 15. Nix Patterson and DiCello Levitt Gutzler filed similar complaints on behalf of cities in Nevada, Ohio, and Texas. California does not tax streaming services such as Netflix, Hulu and Spotify. [GN] NEW YORK CITY: Class Action Settlement Wins Preliminary Approval ---------------------------------------------------------------- In the class action lawsuit captioned as DANIELLE ROSENFELD and VINCENT GARCIA, on behalf of themselves and all others similarly situated, v. TARA LENICH; CITY OF NEW YORK; LU-SHAWN M. THOMPSON, AS ADMINISTRATOR OF ESTATE OF KENNETH P. THOMPSON; ERIC GONZALEZ; MARK FELDMAN; WILLIAM SCHAEFER; BRIAN DONOHUE; WILLIAM POWER; MICHAEL DOWLING; JOSEPH PIRAINO; and ROBERT KENAVAN, Case No. 1:18-cv-06720-NGG-PK (E.D.N.Y.), the Hon. Judge Nicholas G. Garaufis entered an order: 1. granting the Plaintiffs' unopposed Motion for Preliminary Approval of a Class Action Settlement; 2. granting preliminary class certification; 3. appointing class counsel; and 4. approving proposed notice procedures and class administrator; and 5. adopting the Plaintiffs' proposed schedule of events related to the Fairness Hearing and will hold the hearing by videoconference on September 23, 2021 at 10:00 a.m. Settlement Terms: -- On August 7, 2020, the Named Plaintiffs filed a Motion for Preliminary Approval of a $3.2 million class settlement agreement with the City Defendants. -- The Settlement Agreement defines the Settlement Class as "[a]ll persons or entities, including the Class Representatives, whose wire or electronic communications with Stephanie Rosenfeld's personal cellular phone and/or with Jarrett Lemieux's personal cellular phone were intercepted using the [wiretap] system at the Kings County District Attorney's Office during the Class Period." -- An "entity" (non-human) belongs to the Settlement Class only if the human person who used the entity's phone number cannot be identified. -- Stephanie Rosenfeld and Jarrett Lemieux are not included in the Settlement Class. -- The Settlement Agreement calls for the $3.2 million award to be distributed among class members based on the number of each member's communications that were intercepted, according a system of "Award Units": a class member with one intercepted communication is assigned 6 Award Units; a class member with at least two but no more than ten intercepted communications is assigned 7.5 Award Units; a class member with at least eleven but no more than 100 intercepted communications is assigned 10 Award Units; and a party with more than 100 intercepted communications is assigned 15 Award Units. -- The minimum value of an Award Unit is $756, and the maximum value is $1,000, depending on how many class members in each category submit timely claims -- Thus, every class member will receive at least $4,536 and no more than $15,000. The Plaintiffs Danielle Rosenfeld and Vincent Garcia bring this putative class action against the Defendants, on behalf of themselves and all other persons or entities whose communications were illegally wiretapped by Ms. Lenich over a period spanning June 2015 to November 2016. The Plaintiffs claim that they are entitled to statutory damages under Title I of the Electronic Communications Privacy Act of 1986, known as the Wiretap Act. A copy of the Court's order dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/3dire2n at no extra charge.[CC] NICK'S MANAGEMENT: Predmore Suit Stayed; Bid to Arbitrate Granted ----------------------------------------------------------------- The U.S. District Court for the Northern District of Texas grants the motion to compel arbitration and stay the litigation in the lawsuit styled JULIA PREDMORE, individually and on behalf of all others similarly situated, Plaintiff v. NICK'S MANAGEMENT, INC., NICK'S CLUBS, INC. f/k/a ADVENTURE PLUS ENTERPRISES, INC. d/b/a PT'S MEN'S CLUB, and NICK MEHMETI, Defendants, Case No. 3:20-CV-00513-X (N.D. Tex.). The case arises out of the alleged misclassification of exotic dancers as independent contractors. The Plaintiff, Julia Predmore, claims that the Defendants misclassified her as an independent contractor instead of an employee, resulting in violations of the Fair Labor Standards Act. The Defendants moved to dismiss due to an arbitration agreement and/or stay the litigation and compel arbitration. Predmore then moved to certify a collective action, and the Defendants requested a stay of the motion to certify a collective action. After careful consideration, the Court denies the motion to dismiss due to the arbitration clause but grants the motion to compel arbitration and stay this litigation. Accordingly, the Court dismisses as moot Predmore's motion to certify a collective action and dismisses as moot the Defendants' motion to stay certification of a collective action. The Court administratively closes this case and will reopen it upon the filing of a motion regarding the arbitration award. The Defendants claim that Predmore signed a valid Licensing Agreement that included: (1) a clause compelling arbitration of any "disputes arising under the Agreement as well as any disputes that may have arisen at any time during the relationship between the parties," and (2) a class-action waiver. Ms. Predmore signed the Licensing Agreement on February 13, 2019. By signing the Agreement, Predmore also acknowledged that she had read and reviewed the Agreement including the attached terms and conditions in its entirety, and that she had been given an opportunity to ask the Club questions about it or express any concerns about the Agreement, and that she had an opportunity to consult with an attorney. That agreement also contained an arbitration clause. The language of the Agreement satisfies the Defendants' initial burden. The burden now shifts to Predmore to offer some evidence that the Agreement is invalid. But she offers none, District Judge Brantley Starr states. Predmore does not claim that she did not sign the Agreement or that she lacked the mental capacity to consent; instead, she argues that the Agreement is substantively and procedurally unconscionable. Because the Defendants satisfied their initial burden, and Predmore failed to offer any evidence to rebut the existence of a valid agreement, the Court finds that the parties created a valid arbitration agreement under Texas law. Before the Court can consider Predmore's unconscionability challenges, it must determine whether the Agreement contains a delegation clause. The Agreement states that to the fullest extent permitted by law, the arbitrator will apply the commercial arbitration rules of the American Arbitration Association. The Court finds that this language evinces a clear and unmistakable intent to arbitrate arbitration agreement. The Agreement, therefore, contains a delegation clause. When a contract contains a delegation clause, the Court's analysis is limited to specific challenges to the delegation clause. If a party challenges the contract as a whole, the Court must leave that determination to the arbitrator. So, the Court's analysis of Predmore's unconscionability arguments hinges on whether they are challenges to the contract in its entirety or to the delegation clause specifically. Ms. Predmore argues that the arbitration agreement is procedurally unconscionable because: (1) the Club required dancers to sign it as a condition of employment; (2) they did not have adequate time to review it; (3) the Club did not present them with an explanation of the terms; (4) they are not highly educated; and (5) the opt-in plaintiff does not speak English as a first language. The Court finds that none of these bases of alleged procedural unconscionability challenge the delegation clause specifically. The conditions under which Predmore and the opt-in plaintiff signed the Agreement are not isolated to the delegation clause; they are inherently related to the contract in its entirety. For example, the fact that the Club required dancers to sign the Agreement as a condition of employment is not tied only to the delegation clause; dancers were required to sign the contract in its entirety. Because Predmore's procedural-unconscionability arguments attack the Agreement as a whole, it is for the arbitrator--not the Court--to resolve whether the Agreement is procedurally unconscionable. Importantly, Predmore explained that she is not contesting any of the terms of her agreement--she is instead contending that the Agreement is a sham and that she, along with other exotic dancers, was in fact an employee. Viewed against this backdrop, Predmore's substantive-unconscionability claims target the contract as a whole and not the delegation clause specifically. Judge Starr notes that Predmore appears to argue that the Agreement is substantively unconscionable for two separate, but interrelated, reasons: (1) the cost-splitting provision would "force dancers to pay hefty costs just to commence an arbitration proceeding;" and (2) the cost-splitting provision conflicts with her statutory rights under the Act. Although Predmore mentions the delegation provision in passing, her argument is not in reality tailored to the delegation provision. Had Predmore challenged "the delegation provision by arguing that these common procedures as applied to the delegation provision rendered that provision unconscionable," the Court would be bound to consider the challenge. But Predmore did not do that, Judge Starr finds. Indeed, she made clear that she was challenging the Agreement as a whole, not the delegation provision. Therefore, the arbitrator must assess her substantive-unconscionability challenges. Finally, the Court addresses whether Club owner Nick Mehmeti and Nick's Management, as non-signatories, may compel arbitration. The parties do not dispute that the Club is a signatory to the Agreement; as such, it may enforce the Agreement. But the parties do dispute whether non-signatories Nick's Management and Mehmeti can enforce the Agreement. The Defendants argue that because Mehmeti and Nick's Management are agents of the Club, they did not need to sign the Agreement. They also argue that they did not need to sign because equitable estoppel and/or the intertwined-claim theory applies. But whether Mehmeti and Nick's Management can compel arbitration pursuant to these legal theories is a question for the arbitrator. That is so because the scope of who is covered by the term "parties," as used in the Agreement is a question of contract interpretation, not contract formation. The Defendants urge the Court to either dismiss the action upon compelling arbitration or to stay the action and compel arbitration. Predmore argues that a stay is the appropriate remedy. The Court agrees with Predmore. For these reasons, the Court denies the Defendants' motion to dismiss but grants their motion to stay and compel arbitration. It dismisses as moot Predmore's motion to certify a collective action and dismisses as moot the Defendants' motion to stay the certification of a collective. A full-text copy of the Court's Memorandum Opinion and Order dated Feb. 4, 2021, is available at https://tinyurl.com/5dx9az6e from Leagle.com. NICOLAS THOMAS SCOTT: Scott Buying Kit Carson County Land for $76K ------------------------------------------------------------------ Nicolas Thomas Scott and Mandy Lea Scott ask the U.S. Bankruptcy Court for the District of Colorado to authorize the sale of the real property described as Township 8 South, Range 42 West of the 6th Principal Meridian, Section 33 SE 4, in Kit Carson County, Colorado, also known as SE4 33-8S-42W ("Land"), to Scott Land, LLC for $75,500. Creditor MNB Bank obtained an appraisal of the Land dated Jan. 30, 2020. In the Appraisal, the Land is described as follows: "The SE/4 33-8-42 includes 23.5 acres irregularly shaped CRP tract near the west-middle of the quarter with an annual payment of approximately $35.00/acre (per owner). The 23.5 acres has 1 payment remaining (expires 2020) and 81.2 acres is expired CRP grass (expired 2015). Payments provided by owner, and are assumed to be reasonably accurate. Approximately 54.2 acres rolling native grass located on the north side of the quarter. No on-site water." The Appraisal includes a valuation of the Land in the amount of $239,000. The Debtors have entered a contract for the sale of the Land to Scott Land, subject to Court approval. MNB has or may assert a lien against the Land pursuant to following recorded instruments ("DOT Liens"): (a) Deed of Trust securing an indebtedness not to exceed $11 million recorded with the Kit Carson County Clerk and Recorder on May 31, 2017 at Reception No. 00573986; (b) Deed of Trust securing an indebtedness not to exceed $3,053,400 recorded with the Kit Carson County Clerk and Recorder on Jan. 5, 2015 at Reception No. 201500567374; and, (c) Deed of Trust securing an indebtedness not to exceed $5 million recorded with the Kit Carson County Clerk and Recorder on May 1, 2013 at Reception No. 201300562962. MNB also asserts judgment liens against the Land pursuant to following recorded transcripts of judgments ("Judgment Liens"): (a) Transcript of Judgment in the amount of $155,306.16 recorded with the Kit Carson County Clerk and Recorder on Feb. 28, 2020 at Reception No. 00580451; (b) Transcript of Judgment in the amount of $77,536.36 recorded with the Kit Carson County Clerk and Recorder on Feb. 28, 2020 at Reception No. 00580452; (c) Transcript of Judgment in the amount of $2,333,239.25 recorded with the Kit Carson County Clerk and Recorder on Feb. 28, 2020 at Reception No. 00580453; (d) Transcript of Judgment in the amount of $547,278.46 recorded with the Kit Carson County Clerk and Recorder on Feb. 28, 2020 at Reception No. 00580454; and, (e) Transcript of Judgment in the amount of $3,840,337.83 recorded with the Kit Carson County Clerk and Recorder on Feb. 28, 2020 at Reception No. 00580455. The validity and extent of the DOT Liens and the Judgment Liens are at issue in (a) the pending litigation between the Debtors and MNB in the Kit Carson County District Court Case No. 2018CV30026 set for trial to commence in April 2021 and (b) the pending appeal in Colorado Court of Appeals Case No. 2020CA000523 of the judgment from which the Judgment Liens arose. The Debtors have entered a contract for the sale of the Land to the Buyer subject to Court approval. They propose to sell the Land free and clear of liens, encumbrances, and interests. The Contract includes the following terms: a. The Buyer will provide an earnest money deposit in the amount of $3,775, which amount will be held by Kit Carson County Abstract pending closing; b. The sale price is $75,500; c. The sale includes water rights of record or appurtenant to the Land, if any; d. The Land is being sold "as is, where is" and "with all faults"; e. Title will be conveyed by general warranty deed; f. Closing costs will be paid one-half by Debtors and one-half by the Buyer; g. The lease payment for 2021 due on the Land will be pro-rated to the date of closing between the Debtors and the Buyer. To the extent the above summary is inconsistent with the terms and conditions found in the Contract, the Contract will control. The Buyer is owned by Marilyn Scott. Ms. Scott is the Debtors' grandmother. Pursuant to 11 U.S.C. Sections 361(2) and 363(e), if the sale is approved, adequate protection will be provided to MNB in the form of a replacement lien on the proceeds of the sale, which will be held by the Debtors in a segregated account pending further orders of the Court. A copy of the Contract is available at https://tinyurl.com/8upkupz9 from PacerMonitor.com free of charge. The Purchaser: SCOTT LAND, LLC 310 S 15th Street Burlington, CO 80807 Nicolas Thomas Scott and Mandy Lea Scott sought Chapter 11 protection (Bankr. D. Colo. Case No. 20-14159 KHT) on June 17, 2020. NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit ----------------------------------------------------------------- Norfolk Southern Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the company continues to defend multiple lawsuits, including consolidated cases in the District of Columbia, related to fuel surcharges. In 2007, various antitrust class actions filed against us and other Class I railroads in various Federal district courts regarding fuel surcharges were consolidated in the District of Columbia by the Judicial Panel on Multidistrict Litigation. In 2012, the court certified the case as a class action. The defendant railroads appealed this certification, and the Court of Appeals for the District of Columbia vacated the District Court's decision and remanded the case for further consideration. n October 10, 2017, the District Court denied class certification. The decision was upheld by the Court of Appeals on August 16, 2019. Since that decision, various individual cases have been filed in multiple jurisdictions and also consolidated in the District of Columbia. Norfolk said, "We believe the allegations in the complaints are without merit and intend to vigorously defend the cases. We do not believe the outcome of these proceedings will have a material effect on our financial position, results of operations, or liquidity." No further updates were provided in the Company's SEC report. Norfolk Southern Corporation, together with its subsidiaries, engages in the rail transportation of raw materials, intermediate products, and finished goods. Norfolk Southern Corporation was founded in 1883 and is based in Norfolk, Virginia. NORTH DAKOTA: ACLU Files Brief in Support of Road Closure Suit -------------------------------------------------------------- David Olson, writing for inForum, reports that the American Civil Liberties Union is weighing in on a lawsuit that claims state and county authorities violated free speech rights of groups protesting the Dakota Access pipeline by shutting down a North Dakota highway during the height of protests over the pipeline. In an amicus brief filed recently with the U.S. Court of Appeals for the Eighth Circuit, the ACLU and the ACLU of North Dakota stated that public streets are traditional public forums and roads of every kind have served as sites of protest throughout U.S. history, including the civil rights marches and the anti-war demonstrations of the 1960s and 1970s. Protests connected to the Dakota Access pipeline were no different, the ACLU said in a statement announcing its filing of the amicus brief in a lawsuit initially filed in U.S. District Court in 2018 by two members of the Standing Rock Sioux tribe and a reservation priest. The suit seeks unspecified monetary damages from the state of North Dakota, Morton County and TigerSwan, a North Carolina-based firm that oversaw private security for pipeline developer Energy Transfer Partners. The suit claims that closing the highway violated a number of rights, including the right to free speech. Last fall, a U.S. District Court judge partially granted motions made by the state of North Dakota and Morton County by dismissing six of the seven claims brought by the plaintiffs, allowing only one claim -- that First Amendment rights were violated by the road closure -- to proceed. The county appealed that decision, maintaining that all seven claims should have been dismissed. In supporting the district court's order from last fall, Andrew Malone, ACLU of North Dakota staff attorney, said in a news release: "The Supreme Court has recognized that our right to protest in the streets is a time-honored and cherished right. It is high time for police officers, prosecutors, other government attorneys and legislators to do the same." In court filings, the state of North Dakota said the plaintiffs are not entitled to any damages, fees, or other relief resulting from any conduct of the state and that no class action is warranted. The state also maintains plaintiffs cannot show they have suffered any constitutional violation. The suit was initially brought by Cissy Thunderhawk, a reservation businesswoman; Waste'Win Young, a pipeline opponent; and the Rev. John Floberg, of St. James' Episcopal Church in Cannon Ball, N.D. A fourth individual, José Zhagñay, later joined the suit as a plaintiff. Demonstrations drew thousands of people to southern North Dakota during pipeline construction in 2016 and 2017. During one six-month period, more than 700 people were arrested. The pipeline began operations in early 2017. During the protests, officials barricaded a portion of Highway 1806 in October 2016 around the time that a bridge was damaged by fires. A brief recently filed by the plaintiffs states the five-month closure of the highway was implemented several days before any damage was done to the bridge and that the road remained closed for nearly a month after any unrest had ceased. [GN] NORTONLIFELOCK INC: Trial in California Class Suit Set for June 14 ------------------------------------------------------------------ NortonLifeLock, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended January 1, 2021, that a trial date has been set for June 14, 2021, in the consolidated securities class action suit pending before the U.S. District Court for the Northern District of California. Securities class action lawsuits, which have since been consolidated, were filed in May 2018 against us and certain of our former officers, in the U.S. District Court for the Northern District of California. The lead plaintiff's consolidated amended complaint alleged that, during a purported class period of May 11, 2017 to August 2, 2018, defendants made false and misleading statements in violation of Sections 10(b) and 20(a), and that certain individuals violated Section 20A, of the Securities Exchange Act. Defendants filed motions to dismiss, which the Court granted in an order dated June 14, 2019. Pursuant to that order, plaintiff filed a motion seeking leave to amend and a proposed first amended complaint on July 11, 2019. The Court granted the motion in part on October 2, 2019 and the first amended complaint was filed on October 11, 2019. The Court's order dismissed certain claims against certain of our former officers. Defendants filed answers on November 7, 2019. A trial date has been set for June 14, 2021. No further updates were provided in the Company's SEC report. NortonLifeLock, Inc. engages in the provision of security, storage, and systems management solutions. It operates through Enterprise Security and Consumer Digital Safety segments. The Consumer Digital Safety segment provides solutions to protect information, devices, networks and the identities of consumers. The company is based in Tempe, Arizona. NYCDOE: M.G. Suit Seeks to Certify Class of Students with IEPs -------------------------------------------------------------- In the class action lawsuit captioned as M.G., a minor, by and through his parent and natural guardian R.G.; G.J., a minor, by and through his parent and natural guardian, C.J., on behalf of themselves and a class of those similarly situated, and BRONX INDEPENDENT LIVING SERVICES, a nonprofit organization, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION; THE CITY OF NEW YORK; RICHARD A. CARRANZA, in his official capacity as Chancellor of the New York City Department of Education, Case No. 1:17-cv-05692-PGG (S.D.N.Y.), the Plaintiff asks the Court to enter an order: 1. certifying the proposed Class consisting of: "all students with individualized education programs ("IEPs") (a) who, during the period from July 27, 2015, to the last day of the Court's jurisdiction to enforce this Agreement, including any extensions thereof ("Ending Date"), attend, have attended, or will attend public schools operated by the New York City Department of Education ("DOE") and located in the Bronx; (b) whose IEPs include recommendations for one or more related services, as defined in this Agreement, or did recommend such services during the period between July 27, 2015, and the Ending Date; and (c) who are eligible to receive related services under the Individuals with Disabilities Education Act. Students with IEPs who attended a DOE public school located in the Bronx between July 27, 2015, and March 13, 2020, but as of the date of this Agreement do not attend a DOE public school located in the Bronx, must have had an RSA issued on or after July 27, 2015, while they attended a DOE school in the Bronx, but did not receive their related services pursuant to such RSA during the period between July 27, 2015, and March 13, 2020;" 2. appointing themselves as Class representatives; 3. appointing their counsel as Class counsel; 4. preliminarily approving the proposed Settlement Agreement; and 5. approving the proposed notices and proposed schedule for disseminating the notice and seeking final approval. Summary of the Settlement: A. Modifications to the DOE's Policies, Practices, and Procedures -- Allocate sufficient funding by the summer preceding each school year of the Agreement period to support offers of employment for projected full-time occupational therapy ("OT"), physical therapy ("PT"), speech therapy, and counseling positions at New York City Department of Education (DOE) schools in the Bronx for the ensuing school year; -- Increase the number of OT supervisors in the Bronx; and -- Increase funding to the DOE's Related Service Scholarship and Loan Forgiveness Program. B. Monitoring -- Additionally, the Plaintiffs will monitor the DOE's compliance with the Settlement Agreement. The DOE has agreed to provide Plaintiffs' counsel with confidential annual reports. C. Additional Provisions -- The term of the Agreement is three full school years; and -- The DOE has agreed to provide Named Plaintiffs M.G. and G.J. with make-up OT services for the services each missed pursuant to a Related Service Authorization (RSA) and $2,000 each in class representative service awards. After more than two years of negotiations, the Parties have reached a proposed resolution of the issues raised in the Plaintiffs' Complaint concerning the issuance, administration, and utilization of RSA vouchers to provide related services to students with Individualized Education Programs ("IEPs") in DOE schools in the Bronx. Related services include speech therapy, occupational therapy, physical therapy, and counseling, among other services that many students with disabilities need to have equal access to public education. The Plaintiffs filed this civil rights class action lawsuit on July 27, 2017. The Complaint alleged that the DOE's administration of RSA vouchers issued for certain students with IEPs enrolled in DOE schools in the Bronx violates the Individuals with Disabilities Education Act, the Americans with Disabilities Act, and the Rehabilitation Act. The New York City Department of Education is the department of the government of New York City that manages the city's public school system. The City School District of the City of New York is the largest school system in the United States, with over 1.1 million students taught in more than 1,800 separate schools. A copy of the Plaintiffs' motion to certify class dated Feb. 3, 2020 is available from PacerMonitor.com at https://bit.ly/3b1pSpE at no extra charge.[CC] The Plaintiffs are represented by: Rebecca C. Serbin, Esq. DISABILITY RIGHTS ADVOCATES 655 Third Avenue, 14th Floor New York, NY 10017 Telephone: (212) 644-8644 Facsimile: (212) 644-8636 OHIO: Labor Group Calls for End to Farm Contractor Abuses --------------------------------------------------------- Mary Schuermann Kuhlman at citybeat.com reports that a legal victory in North Carolina could open the door to reforms that would protect farm workers in the Buckeye State as well. A federal judge has given preliminary approval to the last of three settlements in a class-action lawsuit against growers who used a farm-labor contractor to cut labor costs - a contractor who shorted the workers' pay. President of the Toledo-based Farm Labor Organizing Committee Baldemar Velasquez said many labor contractors bring migrants to the U.S. on H-2A guest-worker visas, but aren't following federal regulations. He said those violations will eventually fall on the shoulders of farmers. "They think they're distancing themselves from legal liability to hire these independent farm-labor contractors," said Velasquez. "But we've proven in the cases that we won in North Carolina, the 'joint employment' with at least several of the farmers. And I think the same thing is happening in Ohio. We just have to make the case." The class-action lawsuit emerged after a failed attempt by FLOC members get the three defendants to agree to back wages, improved working conditions and collective bargaining rights. The U.S. Department of Labor said the farm owners weren't responsible for the subcontractor's actions. FLOC is working now to collect money owed to the more than 200 workers. Most farmworkers with H-2A visas are in the South, but Velasquez explained they're tied to networks all over the country. "We know several big ones in Ohio that were here last year," said Velasquez. "One labor contractor had about 400 workers. Another one had over 200. And there were smaller ones, of course." In 2019, the Labor Department found roughly 12,000 violations under the H2-A program, including about 5,000 workers cheated out of their wages . Velasquez predicted the exploitation could get worse . "It just really underscores the fact that the Department of Labor doesn't have the capacity to enforce the law," said Velasquez. "That these fly-by-night labor contractors, they're hard to nail down, hard to track down their assets as a way to leverage them, to comply with the law." FLOC is backing H-2A program reforms that would prevent contractors from exploiting workers. [GN] OLIVIAN HOSPITALITY: Faces Garcia ADA Suit Over Reservation System ------------------------------------------------------------------ ORLANDO GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. OLIVIAN HOSPITALITY, INC. and DOES 1-10, Defendant, Case No. 21BBCV00116 (Cal. Super., Los Angeles Cty., February 8, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act and the Unruh Civil Rights Act. The case arises from the Defendant's failure to provide information about the accessible features in the rooms at the Portofino Inn Burbank on its reservation Website at https://www.portofinoburbank.com/ for people with disabilities, including the Plaintiff. The Website reservation system lacks sufficient information needed by disabled travelers to assess independently whether a given hotel room would work for them. As a result, the Plaintiff is unable to engage in an online booking of the hotel room with any confidence or knowledge about whether the room will actually work for him due to his disability, the suit says. Olivian Hospitality, Inc. is an owner and operator of the Portofino Inn Burbank located at 924 W. Olive Ave, Burbank, California. [BN] The Plaintiff is represented by: Raymond Ballister Jr., Esq. Russell Handy, Esq. Amanda Seabock, Esq. Zachary Best, Esq. CENTER FOR DISABILITY ACCESS 8033 Linda Vista Road, Suite 200 San Diego, CA 92111 Telephone: (858) 375-7385 Facsimile: (888) 422-5191 E-mail: amandas@potterhandy.com OTIS WORLDWIDE: Darnis Putative Class Suit Underway --------------------------------------------------- Otis Worldwide Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 5, 2021, for the fiscal year ended December 31, 2020, that the company continues to defend a putative class action suit entitled, Geraud Darnis et al. v. Raytheon Technologies Corporation et al. On August 12, 2020, the putative class action lawsuit was filed in the United States District Court for the District of Connecticut against Otis, Raytheon Technologies Corporation ("RTX"), Carrier, each of their directors, and various incentive and deferred compensation plans. The named plaintiffs are former employees of UTC and its current and former subsidiaries, including Otis and Carrier. They seek to recover monetary damages, as well as related declaratory and equitable relief, based on claimed decreases in the value of long-term incentive awards and deferred compensation under nonqualified deferred compensation plans allegedly caused by the formula used to calculate the adjustments to such awards and deferred compensation from RTX, Carrier, and Otis following the spin-offs of Carrier and Otis and the subsequent combination of UTC and Raytheon Company. Otis believes that the claims against the Company are without merit. Otis Worldwide said, "At this time, Otis is unable to predict the outcome, or the possible loss or range of loss, if any, which could result from this action." Otis Worldwide Corporation is the world's largest elevator and escalator manufacturing, installation and service company. The Company is organized into two segments - New Equipment and Service. Through the company's New Equipment segment, the company design, manufacture, sell and install a wide range of passenger and freight elevators, as well as escalators and moving walkways for residential and commercial buildings and infrastructure projects. The company is based in Farmington, Connecticut. OUTOKUMPU STAINLESS: Hornady's Bid for Equitable Tolling Denied --------------------------------------------------------------- In the case, WILLIAM HEATH HORNADY, et al., Plaintiffs v. OUTOKUMPU STAINLESS USA, Defendant, Civil Action No. 1:18-00317-JB-N (S.D. Ala.), Judge Jeffrey U. Beaverstock of the U.S. District Court for the Southern District of Alabama, Southern Division, denied the Plaintiffs' Renewed Motion to Equitably Toll the Statute of Limitations. The Plaintiffs brought the collective action pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA"). In their initial motion for equitable tolling, the Plaintiffs sought to toll the statute of limitations for putative plaintiffs who had not yet opted into this suit and for opt-in plaintiffs who had filed consents to join. By order dated May 30, 2019, the Court stayed the Plaintiff's initial motion pending the deadline for potential plaintiffs to opt-in. Thereafter, the Court would determine whether the merits of equitable tolling are the same for all the Plaintiffs or depend on their individualized issues. The parties were granted leave to supplement their initial motion after the opt-in period ended. On May 19, 2020, the Plaintiffs filed the Renewed Motion. They offer no additional argument, but rather repeat their prior position "that the applicable principles establish that the Plaintiffs who opted in after July 30, 2018, should have their claims equitably tolled so that the claim period begins July 30, 2015" (the date when the collective action was filed for the named Plaintiffs). Likewise, the Defendant submitted a two-page response, restating their position that the Plaintiffs have failed to establish the "extraordinary circumstances required to justify equitable tolling in the Eleventh Circuit." Judge Beaverstock explains that under the FLSA, an action may be commenced within two years (or three) after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. The named Plaintiffs filed individual written consents to be a party plaintiff on the same day the collective action was filed. As such, the claim period applicable to the named Plaintiffs, for purposes of determining eligible FLSA violations, runs from July 30, 2018, through either July 30, 2015 (for non-willful violations) or 2016 (for willful violations). A review of the record reveals a vast majority of the opt-in Plaintiffs filed written consents to opt in throughout July--September, 2019, or, on average a year later than the commencement of the action by the named Plaintiffs. By filing the motion to equitably toll the statute of limitations, the opt-in Plaintiffs seek to reset their various dates of commencement to July 30, 2018, to match that of the named Plaintiffs, regardless of the date of their opt-in or whether they worked any unpaid overtime within that time period. Judge Beaverstock holds that this would uniformly extend each opt-in Plaintiff's claim period beyond the applicable statute of limitations. Next, the Plaintiffs essentially argue the opt-in procedure under Section 216(b) is at odds with the public policy goals of the collective action. Further, they argue the application of the American Pipe variety of equitable tolling does not require, as does the formal doctrine, "extraordinary circumstances" or an analysis of whether or not a plaintiff has been pursuing her rights diligently. Judge Beaverstock holds that the Plaintiffs have not identified, beyond the policy reasons, a single injustice which may be worked to a specific opt-in Plaintiff if tolling is not granted. In order to determine whether any injustice will occur, the issue is whether, and to what extent, any of the opt-in Plaintiffs' claims will be barred by the two or three-year statute of limitation tied to their action. Put another way: are there any opt-in Plaintiffs who will be unjustly harmed by the strict application of the FLSA statute of limitations to their claim period? Is there an opt-in Plaintiff who may have filed her action earlier but for some misrepresentation on the part of the Defendant? If so, what is the identity of such opt-in Plaintiff(s)? Judge Beaverstock does not know the answer to these questions because the Plaintiffs have provided no such evidence. To be clear, the Plaintiffs have offered no evidence of any opt-in plaintiff who is actually harmed by the failure to toll. In essence, he says the Plaintiffs are asking the Court to toll the statute of limitations without any evidence as to whether there are any cases or controversies within the tolling period. Lacking any fact pertaining to any single opt-in Plaintiff, and for all the other reasons thus stated, Judge Beaverstock declines to apply the doctrine of equitable tolling to this collective action in order to alter the date of the commencement of the action for all opt-in Plaintiffs. To do so, he states, would destroy the intent of Section 216(b) with no knowledge of any injustice to be remedied. Finally, the Plaintiffs argue, even under the formal doctrine of equitable tolling and the traditional analysis of the Eleventh Circuit, the date of commencement of the suit should be reset to July 30, 2018, for all opt-in Plaintiffs. The Defendant replies the facts simply do not warrant equitable tolling and the Plaintiffs have not asserted, as the Eleventh Circuit requires, either extraordinary circumstances or fraud has interfered with the Plaintiffs' ability to assert their claims. Judge Beaverstock holds that the Plaintiffs have not met their burden. The Plaintiffs have failed to submit any facts to support their argument for equitable tolling other than a generalized concern that the FLSA procedural scheme may result in the loss of claims: "Whether notice is early, late, slow, or fast, unless there is equitable tolling, the employees Congress protects through a collective action process lose due to circumstances beyond their control." While the Plaintiffs identify cases from other jurisdictions in which tolling was granted to address delayed notice to potential plaintiffs caused by the collective action procedure, they do not identify any case from the Circuit. The Defendant correctly argues the cases in the Circuit do not generally find litigation delays to merit an "extraordinary" circumstance that could warrant application of the doctrine of equitable tolling. The Judge concludes that the Plaintiffs have failed to demonstrate any extraordinary circumstances existed to prevent any Plaintiff from pursuing the cause of action at some earlier date. For the reasons he described, Judge Beaverstock denied the Plaintiffs' Renewed Motion. A full-text copy of the Court's Feb. 3, 2021 Order is available at https://tinyurl.com/selydrqf from Leagle.com. PAPA JOHN'S: 2nd Amended OLERS Complaint Dismissed With Prejudice ----------------------------------------------------------------- In the case, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, Plaintiff v. PAPA JOHN'S INTERNATIONAL, INC., JOHN H. SCHNATTER, and STEVE M. RITCHIE, Defendants, No. 18-CV-7927 (KMW) (S.D.N.Y.), Judge Kimba M. Wood of the U.S. District Court for the Southern District of New York granted the Defendants' motions to dismiss the Plaintiff's Second Amended Complaint ("SAC"). Lead Plaintiff Oklahoma Law Enforcement Retirement System brings the putative class action against Papa John's and two of its former executives, Schnatter and Ritchie. The Plaintiff alleges that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Sections 78j(b), 78t(a), and the corresponding rule of the United States Securities and Exchange Commission ("SEC"), 17 C.F.R. Section 240.10b-5. Defendant Papa John's is a Delaware corporation with its principal place of business in Kentucky. It operates and franchises pizza delivery and carryout restaurants throughout the United States and internationally. Schnatter founded Papa John's in 1984 and remains one of Papa John's largest shareholders. From Feb. 25, 2014 through Aug. 7, 2018 ("Class Period"), he held a range of executive positions. He was Papa John's CEO from April 3, 2009, through Dec. 31, 2017, Chairman of the Board from May 10, 2007, through July 11, 2018, and President from May 15, 2014 through July 30, 2015. Mr. Ritchie began working for Papa John's as a customer service representative in 1996 and steadily climbed the corporate ladder. He became the Senior VP from May 2013 through May 1, 2014. Then, from May 15, 2014, through Dec. 31, 2017, he was the COO. He took over Schnatter's role as President on July 30, 2015, and Schnatter's role as CEO on Jan. 1, 2018. He remained in those positions through the end of the Class Period. The Lead Plaintiff purchased Papa John's common stock during the Class Period. The First Amended Complaint ("FAC") alleged that the Defendants made false and misleading statements about Papa John's culture and failed to disclose material information about its toxic workplace culture. The Court granted the Defendants' motions to dismiss the FAC because the allegedly false and misleading statements upon which the Plaintiff relied were inactionable "puffery," and because the Plaintiff's allegations about Papa John's toxic workplace culture were far too speculative to meet Rule 12(b)(6), Rule 9(b), and the PSLRA's pleading standards. The Plaintiff filed a SAC. In the SAC, the Plaintiff's allegations continue to rely on largely the same set of allegedly material misrepresentations and omissions in Papa John's Code, press releases, earnings conference calls, and financial disclosures. Likewise, the Plaintiff also continues to rely on Schnatter's NFL comment, the July 11 Forbes article about Schnatter's use of the "N-word," and the July 19 Forbes article about the toxic culture at Papa John's. The SAC emphasizes that the Defendants knew about the toxic culture of harassment and intimidation flourishing within the Company--because Schnatter and Ritchie were directly responsible for cultivating it." The SAC also emphasizes that Defendants' knowledge, "following the explosion of the #MeToo movement," renders their material misrepresentations and omissions actionable. On June 1, 2020, Papa John's and Ritchie moved to dismiss the SAC. Separately, Schnatter moved to dismiss the SAC on the same day. On July 15, the Plaintiff filed a separate opposition to each motion. On September 4, Papa John's and Ritchie filed a reply, and Schnatter filed his reply separately. The SAC alleges the same type of securities fraud as the FAC. The Plaintiff alleges that Schnatter, Ritchie, and other executives sexually harassed Papa John's employees and cultivated a toxic workplace culture. The Plaintiff claims that, with the rise of the #MeToo movement, it was likely that their wrongdoing would come to light and harm the Company's reputation, adversely impacting operations and revenue. It adds that the Defendants misleadingly touted the Company's culture and failed to divulge the danger that business would suffer, should customers learn the truth. Judge Wood opines that the SAC still fails plausibly to allege that the Defendants' positive assurances about the Company's culture exceeded the protected bounds of generic puffery. Nor has the SAC plausibly alleged that the risk that Papa John's would face a #MeToo reckoning was so concrete and substantial that there arose an affirmative duty to disclose it. As to material misrepresentations or omissions under Section 10(b) and Rule 10b-5, JUdge Kimba observes that like the FAC, the material misrepresentations or omissions alleged in the SAC under Section 10(b) and Rule 10b-5 fall into three broad categories: (1) statements contained in Papa John's Code of Ethics and Business Conduct; (2) positive assertions made in SEC filings, press releases, and earnings conference calls; and (3) risks disclosed in SEC filings. She finds that nothing in the SAC or the Plaintiff's briefs (i) changes the Court's previous determination that the statements in the Code are quintessential puffery, (ii) warrants changing the Court's previous determination that the positive assertions about the Company's culture in its SEC filings, press releases, and earnings conference calls are inactionable as immaterial puffery, and (iii) warrants changing the Court's previous determination that the risk disclosures contained in Papa John's SEC Filings are not misleading. Turning to the omissions under Item 303 of Regulation S-K, Judge Wood holds that nothing in the SAC or the Plaintiff's briefs warrants changing the Court's previous determination that Papa John's did not have an affirmative duty to disclose information about workplace sexual misconduct. Papa John's had no affirmative duty to disclose its allegedly toxic workplace culture or accusations of sexual misconduct against its executives. The SAC contains no particularized allegations to bridge this factual gap. Drawing all reasonable inferences in the Plaintiff's favor, the Judge is able to infer only that it is possible that the misconduct and toxic culture could be exposed and that the exposure could have some effect on the Company's financial condition. The SAC's general allegations do not allow the Court to infer that the exposure was "reasonably likely" to have a "material effect" on the Company's financial condition. Thus, Judge Wood holds that Papa John's did not have an affirmative duty to disclose information about workplace sexual misconduct under Item 303. Because she holds that the Plaintiff has not adequately pled a material misrepresentation or omission under Section 10(b) or Rule 10b-5, Judge Wood has no occasion to address the Defendants' alternative grounds for dismissal, based on alleged deficiencies in the Plaintiff's pleadings as to scienter and loss causation. Because the Plaintiff has not stated a claim for a primary violation of the Exchange Act by any controlled person, Judge Wood opines that the Plaintiff's claims against Schnatter and Ritchie based on control person liability under Section 20(a) are also incapable of surviving the Defendants' motions to dismiss. Finally, the Plaintiff requests leave to amend the SAC should the Court grant the Defendants' motions to dismiss. The Plaintiff has had two opportunities to amend its complaint. There is no reason to believe that any amendment can cure the SAC's deficiencies, because the statements that the Plaintiff contends are actionable were not material, or false or misleading, and the Plaintiff has not identified any omitted information that the Defendants had an affirmative duty to disclose, Judge Wood opines. She says permitting Plaintiff to file a third amended complaint under these circumstances would be futile and would needlessly burden counsel and the Court. Thus, the Plaintiff's request to file a third amended complaint is denied. For the foregoing reasons, Judge Wood granted the Defendants' motions to dismiss the SAC with prejudice. The Clerk of Court is respectfully directed to terminate the pending motions. A full-text copy of the Court's Feb. 3, 2021 Opinion & Order is available at https://tinyurl.com/emwdwn0j from Leagle.com. PASCHALL TRUCK: Extension of Rule 23 Motion Filing Deadlines Sought ------------------------------------------------------------------- In the class action lawsuit captioned as GALE CARTER, et al., v. PASCHALL TRUCK LINES, INC., et al., Case No. 5:18-cv-00041-BJB-LLK (W.D. Ky.), the Plaintiffs Gale Carter and Forbes Hayes, and Defendant Paschall Truck move per Federal Rule of Civil Procedure 6(b)(1)(A) to extend the deadlines for the Opposition and Reply Briefs to be filed in connection with the Plaintiff's Motion for Rule 23(b)(3) Certification as follows: Event Current Deadline Requested Deadline Deadline for the Feb. 12, 2021 March 5, 2021 Defendants to file any opposition: Deadline for the March 5, 2021 April 2, 2021 Plaintiffs to file any reply: Paschall Truck operates as a route carrier shipping company. A copy of the Parties motion dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3rOIY9z at no extra charge.[CC] The Plaintiff is represented by: Joshua S. Boyette, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 The Defendant is represented by: Ashley E. Paynter, Esq. SCOPELITIS, GARVIN, LIGHT HANSON & FEARY, P.C. 10 Wester Market St. Ste 1400 Indianapolis, IN 46204 Telephone: (317) 637-1777s PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway ------------------------------------------------------------ Paylocity Holding Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the company is facing a potential class action suit alleging Illinois Biometric Information Privacy Act (BIPA). On November 16, 2020, a potential class action complaint was filed against the Company with the Circuit Court of Cook County alleging that the Company violated the Illinois Biometric Information Privacy Act. The complaint seeks statutory damages, attorney's fees and other costs. Paylocity said, "This claim is still in its earliest stages and the Company is unable to estimate any reasonably possible loss, or range of loss, with respect to this matter. The Company intends to vigorously defend against this lawsuit." Paylocity Holding Corporation is a provider of cloud-based payroll and human capital management (HCM) software solutions to medium-sized organizations. The Arlington Heights, Illinois-based Company currently serves 6,850 clients throughout the United States. The company is based in Schaumburg, Illinois. PAYPAL HOLDINGS: Dismissal in TIO Operation Related Suit Affirmed ----------------------------------------------------------------- PayPal Holdings, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 5, 2021, for the fiscal year ended December 31, 2020, that the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal in the putative class action suit related to the company's suspension of its operation of TIO Networks. In November 2017, the company announced that it had suspended the operations of TIO as part of an ongoing investigation of security vulnerabilities of the TIO platform. On December 1, 2017, the company announced that it had identified evidence of unauthorized access to TIO's network and the potential compromise of personally identifiable information for approximately 1.6 million TIO customers. The company had received a number of governmental inquiries, and the company may be subject to additional inquiries in the future. In addition, on December 6, 2017, a putative class action lawsuit was filed in the U.S. District Court for the Northern District of California against the Company, its Chief Executive Officer, its Chief Financial Officer and Hamed Shahbazi, the former chief executive officer of TIO alleging violations of federal securities laws. The plaintiffs filed their operative, second amended complaint on July 13, 2018. The SAC names TIO Networks ULC, TIO Networks USA, Inc., and John Kunze (at that time, the Company's Vice President, Global Consumer Products and Xoom) as additional defendants, but no longer names Hamed Shabazi as a defendant. The SAC is purportedly brought on behalf of all persons other than the defendants who acquired the Company's securities between November 10, 2017 and December 1, 2017, and alleges that the Company's November 2017 announcement was false and misleading because it only disclosed security vulnerabilities on TIO's platform, rather than an actual security breach affecting millions of TIO users that defendants were allegedly aware of at the time of the announcement. Defendants filed their motion to dismiss the SAC on March 15, 2019, and the Court granted the defendants' motion with prejudice on September 18, 2019. Plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit, and on December 17, 2020, the Ninth Circuit issued a memorandum decision affirming the dismissal. PayPal said, "We may be subject to additional litigation relating to TIO's data security platform or the suspension of TIO's operations in the future. PayPal Holdings, Inc. operates as a technology platform and digital payments company that enables digital and mobile payments on behalf of consumers and merchants worldwide. PayPal Holdings, Inc. was founded in 1998 and is headquartered in San Jose, California. PELOTON INTERACTIVE: Faces Loaiza ADA Suit in C.D. California ------------------------------------------------------------- A class action lawsuit has been filed against Peloton Interactive. The case is captioned as David Loaiza v. Peloton Interactive, Inc. et al., Case No. 2:21-cv-00846-FMO-AGR (C.D. Cal., Jan. 29, 2021). The suit alleges violation of the Americans With Disabilities Act and is assigned to the Hon. Judge Fernando M. Olguin. Peloton is an American exercise equipment and media company that was founded in 2012 and launched with help from a Kickstarter funding campaign in 2013.[BN] The Plaintiff is represented by: Jasmine Behroozan, Esq. Thiago Merlini Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard, 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: jasmine@wilshirelawfirm.com thiago@wilshirelawfirm.com PENUMBRA INC: Kessler Topaz Reminds of March 16 Deadline -------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP reminds Penumbra, Inc. (NYSE: PEN) ("Penumbra") investors that a securities fraud class action lawsuit has been filed on behalf of those who purchased or acquired Penumbra common stock between August 3, 2020 and December 15, 2020, inclusive (the "Class Period"). Deadline Reminder: Investors who purchased or acquired Penumbra common stock during the Class Period may, no later than March 16, 2021, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please contact Kessler Topaz Meltzer & Check, LLP: James Maro, Esq. (484) 270-1453 or Adrienne Bell, Esq. (484) 270-1435; toll free at (844) 887-9500; via e-mail at info@ktmc.com; or click https://www.ktmc.com/penumbra-inc-securities-class-action?utm_source=PR&utm_medium=link&utm_campaign=penumbra According to the complaint, Penumbra is a global healthcare company that develops, manufactures and sells innovative medical devices for patients suffering from stroke and other vascular and neurovascular diseases. Until recently, one of Penumbra's flagship products was the "Jet 7 Xtra Flex," an aspiration catheter designed to be inserted into an affected artery, navigated to a blood clot, and used to suck the clot out of the patient's body. The Jet 7 Xtra Flex was introduced to the U.S. market in July 2019 and quickly became a "growth driver" for Penumbra, a key source of new revenues. The complaint alleges that in mid-2020, concerns about the Jet 7 Xtra Flex's safety began to emerge. Despite the safety concerns, the defendants repeatedly assured investors during the Class Period that the Jet 7 Xtra Flex was "absolutely safe" and "not a product that has any possibility of needing to be recalled," as Penumbra was taking all necessary steps to protect patients. The truth regarding Jet 7 Xtra Flex's safety was revealed to the market through a series of disclosures beginning in September 2020. Then, on December 15, 2020, after the market closed, Penumbra issued a press release announcing that it was issuing an "urgent" recall of the Jet 7 Xtra Flex because the catheter "may become susceptible to distal tip damage during use" which could lead to injury or death. Following this news, Penumbra's stock price fell by 7%, from $188.82 per share on December 15, 2020 to $174.98 per share on December 16, 2020, a decline of $13.84 per share. Penumbra investors may, no later than March 16, 2021, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check, LLP, prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP, please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. Adrienne Bell, Esq. 280 King of Prussia Road Radnor, PA 19087 (844) 887-9500 (toll free) (610) 667-7706 info@ktmc.com [GN] PHOENIX, AZ: Police "Challenge Coins" Depict Violence From Protest ------------------------------------------------------------------ Vaughan Jones, writing for KJZZ91.5, reports that after shooting a protester in the groin with a pepper ball at a protest in 2017, a team of Phoenix police officers allegedly created commemorative coins to celebrate the incident. The "challenge coins" clearly depict the man being shot on the front and have the date of the protest on the back, according to an ABC 15 report. The text on the coins reads "Good Night, Left Nut" on one side and "Make America Great Again, One Nut at a Time" on the other. The first phrase has drawn comparison to the neo-Nazi slogan "Good Night, Left Side." The coins were allegedly kept and shared by the Tactical Response Unit. Phoenix police denies any involvement. The ACLU Arizona and Puente Human Rights filed a class-action suit against the Phoenix Police Department over its response to the protest. [GN] PHYSICIAN COMPASSIONATE: Teblum Gets Prelim. OK of Class Settlement ------------------------------------------------------------------- The U.S. District Court for the Middle District of Florida granted in part the Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement in the lawsuit captioned DARYL TEBLUM, individually and on behalf of all others similarly situated, Plaintiff v. PHYSICIAN COMPASSIONATE CARE LLC, Defendant, Case No. 2:19-cv-403-SPC-MRM (M.D. Fla.). Before the Court is Magistrate Judge Mac R. McCoy's Report and Recommendation. Judge McCoy recommends granting in part and denying in part the Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. After examining the file independently and upon considering Judge McCoy's findings and recommendations, the Court accepts and adopts the Report and Recommendation. Accordingly, it is now ordered that: 1. Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement is granted in part and denied in part consistent with Judge McCoy's Report and Recommendation; 2. the parties' settlement agreement is preliminarily approved; 3. the parties must submit a revised short form notice that cures the deficiency noted in Judge McCoy's Report and Recommendation; 4. the deadlines proposed by the Plaintiff concerning notice, opt-outs, objections, final approval, and claims are adopted; and 5. The final approval and fairness hearing will be set approximately 120 days after entry of the Order. A full-text copy of the Court's Opinion and Order dated Feb. 4, 2021, is available at https://tinyurl.com/25j3z3x2 from Leagle.com. PINTEREST INC: Facing Putative Securities Class Suit in California ------------------------------------------------------------------ Pinterest, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 5, 2021, for the fiscal year ended December 31, 2020, that the company is facing a putative securities class action suit filed in the U.S. District Court for the Northern District of California. On November 23, 2020, Pinterest and its CEO and Chief Financial Officer were named as defendants in a putative securities class action filed in the U.S. District Court for the Northern District of California. The lawsuit alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and alleges that defendants made material false and misleading public statements about the company's revenue and user growth in 2019. The complaint seeks damages, litigation costs, and interest. Pinterest said, "We continue to evaluate these claims but do not believe this litigation will have a material impact on our financial position or results of operations." Pinterest, Inc. operates and maintains social networking site. The Company provides online venue for personal photos, ideas, oddities, decorations, places to visit, recipes, and other items. Pinterest serves customers worldwide. The company is based in San Francisco, California. PLANT DELIGHTS: Blind Users Can't Access Website, Williams Alleges ------------------------------------------------------------------ MILTON WILLIAMS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS : SIMILARLY SITUATED v. PLANT DELIGHTS NURSERY, INCORPORATED, Case No. 1:21-cv-00858-LJL (S.D.N.Y., Jan. 29, 2021) alleges that the Defendant failed to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people. According to the complaint, the Defendant's denial of full and equal access to its Website, https://www.plantdelights.com/, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of the Plaintiff's rights under the Americans with Disabilities Act and California's Unruh Civil Rights Act. Because the Defendant's Website is not fully or equally accessible to blind and visually impaired consumers, resulting in violation of the ADA, the Plaintiff seeks a permanent injunction to cause a change in the Defendant's policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually impaired and legally blind person who requires screen-reading software to read Website content using her computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. The Defendant offers the commercial Website to the public. The Website offers features which should allow all consumers to access the goods and services offered by the Defendant and which the Defendant ensures delivery of such goods throughout the United States including New York State. The goods and services offered by the Defendant include purchase plants, flowers and other products available online for purchase, and to ascertain information relating to pricing, shipping, ordering merchandise and return and privacy policies.[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 PMA INSURANCE: Amended Sims Complaint Dismissed Without Prejudice ----------------------------------------------------------------- In the case, CATHY MONROE SIMS, Plaintiff v. PMA INSURANCE COMPANY d/b/a/ PMA INSURANCE GROUP, PMA MANAGEMENT CORP., MANUFACTURERS ALLIANCE INSURANCE COMPANY, and PMA COMPANIES, INC., Defendants, Case No. 1:20-cv-249 (M.D.N.C.), Judge Thomas D. Schroeder of the U.S. District Court for the Middle District of North Carolina granted the Defendants' motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in the alternative, Rule 12(b)(6). The case is a putative class action seeking recovery for the alleged failure of private insurers to make timely conditional payments for Medicare services. In 2011, Sims was employed as a certified nursing assistant by Century Care Management. On June 16, 2011, she suffered a lower back injury in the course of her work. On Jan. 13, 2012, the Defendants filed an N.C. Industrial Commission Form 63 that indicated that they agreed to pay Sims's medical expenses connected to the work-related injury without prejudice to denying the compensability of her workers' compensation claims. On Sept. 13, 2012, the Defendants filed an N.C. Industrial Commission Form 60 in which they admitted Sims's right to compensation, including medical expenses, for her work-related injury. On Feb. 1, 2014, Sims became eligible to receive Medicare. On May 15, 2015, following the Defendants' failure to pay for certain treatments relating to Sims' back injury, the Full Commission of the North Carolina Industrial Commission issued an opinion and award that concluded Sims was entitled to ongoing medical care for her back injury. After evaluating the requested care, the Full Commission ordered Defendants to authorize treatment for Sims's back injury as recommended by her authorized treating physician. On Aug. 5, 2015, the Centers for Medicare and Medicaid Services ("CMS") sent the parties a Rights and Responsibilities letter that indicated the Defendants' responsibility to reimburse Medicare for payments made for treatment of Sims's back injury. on Aug. 11, 2015, CMS sent the Defendants a conditional payment letter with an enclosed list of conditional payments. The letter stated, "Medicare has identified $4552.87 in conditional payments that we believe are associated with your claim." The letter also indicated that Medicare was "still investigating the case file" and the enclosed listing of conditional payments was "not a final list and would be updated." The letter prominently featured the statement, "This is not a bill. Do not send payment at this time." Although the letter asked Defendants to review the enclosed listing of conditional payments and inform Medicare if they disagreed with the inclusion of any claim, the letter did not indicate a timeframe in which the Defendants were required to respond. On Sept. 3, 2015, CMS sent the Defendants another conditional payment letter. The letter was identical to the first, except the conditional payment amount was revised downward to $2,397.39. Following receipt of these letters, Sims alleges, the Defendants neither repaid the conditional payments nor disputed any of the claims. On March 15, 2017, CMS sent the Defendants a third conditional payment letter. The letter stated that Medicare "identified a claim for which you have primary payment responsibility and Medicare has made primary payment." The letter identified $6,166.31 in conditional payments. As with the prior two letters, the letter indicated that the Defendants should inform Medicare if they believed that the enclosed listing was inaccurate, but it did not include a date by which Defendants were required to respond. On Feb. 8, 2018, the Defendants submitted a conditional payment dispute to CMS challenging most of the payments included in the March 15, 2017 letter. On March 1, 2018, CMS sent a letter indicating that it partially agreed with the dispute and adjusted the amount of conditional payments identified downward to $4,779.73. CMS issued the Defendants a fourth conditional payment letter that reflected the adjusted amount. In all other ways, the March 1, 2018 conditional payment letter was identical to the March 15, 2017 letter, including indicating that the enclosed listing of conditional payments was "not final" and instructing Defendants to inform Medicare if they believed the listing was inaccurate. On April 6, 2018, the Defendants submitted another conditional payment dispute to CMS challenging the conditional payments identified in the March 1, 2018 letter. CMS appears to have made no response to that dispute. On March 16, 2020, Sims filed the present lawsuit against the Defendants for violation of the Medicare Secondary Payer Act ("MSPA"), and sought certification as a class action. On April 15, 2020, CMS sent Defendants a fifth conditional payment letter. The letter was identical to the third and fourth letters, except in that the conditional payment amount increased to $10,859.34. As with the prior letters, the letter indicated that the enclosed listing of conditional payments was "not final" and instructed the Defendants to inform Medicare if they believed the listing was inaccurate. On April 23, 2020, the Defendants submitted a conditional payment dispute to CMS challenging the conditional payments identified in the April 15, 2020 letter. CMS responded on May 4 with a letter to the Defendants indicating that it agreed with the dispute and adjusted the amount of identified conditional payments downward to zero. CMS included with the letter a revised payment summary form that identified the total conditional payments owed as $0. On June 12, 2020, the Defendants filed a motion to dismiss based on lack of subject matter jurisdiction or, in the alternative, failure to state a claim. Sims requested and received an extension of time to reply. On Aug. 5, 2020, without the consent of the Defendants or leave of the court, Sims filed an amended complaint. The amended complaint alleges the Defendants violated the MSPA and seeks certification as a class action. The Defendants again filed a motion to dismiss based on lack of subject matter jurisdiction or, in the alternative, failure to state a claim. Before considering the merits of any claim, Judge Schroeder first determines that the Court has subject matter jurisdiction over it. The Defendants challenge the Court's subject matter jurisdiction on two grounds. First, they argue that the case is not ripe for adjudication. Second, they contend that Sims lacks standing because she has not suffered an injury-in-fact. Because the Defendants do not contest the veracity of the facts underlying Sims' claim to subject matter jurisdiction but rather argue that the facts alleged in the amended complaint are not sufficient to establish the court's subject matter jurisdiction, the Judge applies a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged. However, under this standard, he need not accept the legal conclusions drawn from the facts. With this standard in mind, Judge Schroeder turns to the Defendants' challenges to subject matter jurisdiction. The Defendants contend that Sims' claim is not ripe for adjudication because at the time the complaint was filed, they were in discussions with CMS regarding the accuracy of the identified conditional payments. They further contend that since that time, CMS has found that Defendants do not currently owe any reimbursement. Given that the Defendants have not yet breached their duty to reimburse CMS under the MSPA, Judge Schroeder holds taht Sims will suffer no hardship if he does not weigh in. If and when that occurs, Sims will be able to bring her claim. As such, Sims' claim should be dismissed as premature. The Defendants also challenge subject matter jurisdiction on the basis that Sims lacks standing to bring this claim because she has not suffered an injury-in-fact. In response, Sims contends that she was injured when the Defendants failed to pay for her medical care as required under law. Because injury-in-fact is a close cousin of ripeness, and Sims' arguments in support of ripeness overlap with those in support of an injury-in-fact, Judge Schroeder also addresses whether Sims has sufficiently alleged an injury-in-fact as an alternative basis for dismissal. Judge Schroeder concludes that as Sims has failed to allege that she has suffered an injury-in-fact, she lacks standing to pursue her claim. Sims is correct that, at the present stage, Judge Schroeder must accept the facts as alleged in the amended complaint. However, Judge Schroeder need not accept the legal conclusions drawn from those facts. He finds that Sims' contention that the Defendants were required to reimburse Medicare, such that their failure to do so constitutes an injury-in-fact, is a conclusion of law that is not afforded a presumption of truth. Without facts to indicate that the Defendants failed to reimburse Medicare when they were required to do so, Sims has not plausibly alleged that she has suffered an injury-in-fact under the MSPA. Having found the Court lacks subject matter jurisdiction over Sims' claim, Judge Schroeder need not consider the Defendants' motion to dismiss pursuant to Rule 12(b)(6). For the reasons he stated, Judge Schroeder granted the Defendants' motion to dismiss. He dismissed without prejudice the amended complaint. A full-text copy of the Court's Feb. 3, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/1u522hq3 from Leagle.com. POLAND: 200 Hospitality Sector Companies to Join Class Action Suit ------------------------------------------------------------------ THefirstNEWS reports that about 200 hospitality sector companies plan to join a class action lawsuit against the state owing to losses run up under lockdown restrictions. The firms will join a suit prepared by the Polish Gastronomy Chamber of Commerce, which will file a complaint when more companies come forward, the Gazeta Polska Codzienne newspaper reported on Feb. 8. Companies taking part in the legal action want to receive damages for the losses they have incurred. The sector's combined losses caused by lockdown restrictions are estimated to be about PLN 1 billion (EUR 222 million) and the suit seeks to attribute the losses to the State Treasury. Slawomir Grzyb of the chamber of commerce's management board told the paper that the group intends to lodge the complaint when it has gathered between 650 and 1,000 plaintiffs, adding that the suit would be lodged by the end of March. The chamber said that the intention of the lawsuit is to establish that the State Treasury is responsible for damages caused by the alleged illegal and careless activities of public authorities under the state of epidemiological threat. [GN] PORSCHE CARS: Faces Bowen Suit in Northern District of Georgia -------------------------------------------------------------- A class action lawsuit has been filed against Porsche Cars N.A., Inc. The case is captioned as Bowen v. Porsche Cars N.A., Inc., Case No. (N.D. Ga., Jan. 29, 2021). The case alleges alleged personal property damages and is assigned to the Hon. Judge Mark H. Cohen. PCNA, based in Atlanta, Georgia, is the exclusive importer of Porsche vehicles for the United States.[BN] The Plaintiff is represented by: David Stein, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: ds@classlawgroup.com - and - Matthew R. Wilson, Esq. Michael Joseph Boyle , Jr., Esq. MEYER WILSON CO., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066 E-mail: mwilson@meyerwilson.com mboyle@meyerwilson.com - and - Michael A. Caplan, Esq. Timothy Brandon Waddell, Esq. CAPLAN COBB LLP 75 Fourteenth Street, NE, Suite 2750 Atlanta, GA 30309 Telephone: (404) 596-5610 Facsimile: (404) 596-5604 E-mail: mcaplan@caplancobb.com bwaddell@caplancobb.com POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing ---------------------------------------------------------------- Post Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that Michael Foods, Inc. (MFI) continues to defend a class action suit by opt-out plaintiffs related to egg products. In late 2008 and early 2009, approximately 22 class action lawsuits were filed in various federal courts against MFI, a wholly-owned subsidiary of the Company, and approximately 20 other defendants (producers of shell eggs and egg products and egg industry organizations), alleging violations of federal and state antitrust laws in connection with the production and sale of shell eggs and egg products, and seeking unspecified damages. All cases were transferred to the Eastern District of Pennsylvania for coordinated and/or consolidated pretrial proceedings. The cases involved three plaintiff groups: (i) a nationwide class of direct purchasers of shell eggs; (ii) individual companies (primarily large grocery chains and food companies that purchase considerable quantities of eggs) that opted out of various settlements and filed their own complaints related to their purchases of shell eggs and egg products; and (iii) indirect purchasers of shell eggs. Resolution of claims: To date, MFI has resolved the following claims, including all class claims: (i) in December 2016, MFI settled all claims asserted against it by the direct purchaser class for a payment of $75.0, which was approved by the district court in December 2017; (ii) in January 2017, MFI settled all claims asserted against it by opt-out plaintiffs related to shell egg purchases on confidential terms; (iii) in June 2018, MFI settled all claims asserted against it by indirect purchaser plaintiffs on confidential terms; and (iv) between June 2019 and September 2019, MFI individually settled on confidential terms egg product opt-out claims asserted against it by four separate opt-out plaintiffs. MFI has at all times denied liability in this matter, and no settlement contains any admission of liability by MFI. Remaining portion of the cases: MFI remains a defendant only with respect to claims that seek damages based on purchases of egg products by three opt-out plaintiffs. The district court had granted summary judgment precluding any claims for egg products purchases by such opt-out plaintiffs, but the Third Circuit Court of Appeals reversed and remanded these claims for further pre-trial proceedings. Defendants filed a second motion for summary judgment seeking dismissal of the claims, which was denied in June 2019. The remaining opt-out plaintiffs have not yet been assigned trial dates. Although the likelihood of a material adverse outcome in the egg antitrust litigation has been significantly reduced as a result of the MFI settlements described above, the remaining portion of the cases could still result in a material adverse outcome. Post Holdings, Inc. operates as a consumer packaged goods holding company in the United States and internationally. It operates through Post Consumer Brands, Weetabix, Refrigerated Food, and Active Nutrition segments. The company was founded in 1895 and is headquartered in St. Louis, Missouri. PRECISION 2000: Conditional Collective Status Sought in FLSA Suit ----------------------------------------------------------------- In the class action lawsuit captioned as JUAN SERVANDO GARCIA-ROBELO, EDUARDO GARCIA-ZAVALA, GILBERTO GARCIA-ZAVALA, HUGO PEREZ- ZAVALA, and SALVADOR MARTINEZ-BARRERA, individually and on behalf of all similarly situated persons, v. PRECISION 2000, INC., CASA PROPERTIES, LLC, GUIOMAR OBREGON, individually, CARLOS FRANCISCO SANCHEZ, individually, and MAURICIO LANCHEROS, individually, Case No. 1:20-cv-02841-MLB-JKL (N.D. Ga.), the Parties ask the Court to enter an order: 1. granting their motion for conditional collective certification defined as: "all current and former employees of Precision 2000 within the three-year period before the [Notice mailing date], who were subject to housing deductions, and/or who were not reimbursed for inbound travel costs, or outbound travel costs, and who elect to opt-in to this action pursuant to 29 U.S.C. section 216(b);" and 2. granting a 90-day stay to allow them to issue the Court- approved Notice and Reminder Notice and then to engage in settlement negotiations regarding the Plaintiffs and all individuals who join this action. This is a collective action brought by the Plaintiffs Juan Servando Garcia-Robelo, Eduardo Garcia-Zavala, Gilberto Garcia-Zavala, Hugo Perez-Zavala, and Salvador Martinez-Barrera against the Defendants pursuant to the Fair Labor Standard Act (FLSA). The Plaintiffs contend that the Defendants violated the FLSA, when they imposed mandatory housing deductions on the Plaintiffs that resulted in compensation at subminimum rates and also when they failed to reimburse the Plaintiffs for inbound/outbound costs related to their employment. Precision 2000 provides construction services. The Company offers products and services in civil infrastructure and transportation-related projects, including airports, military bases, roads, pedestrian paths, crossings, intersections, and sidewalks. A copy of the Parties' motion to certify class dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3qdmEpo at no extra charge.[CC] The Plaintiffs are represented by: Rachel Berlin Benjamin, Esq. BUCKLEY BEAL LLP 600 Peachtree Street, NE, Ste. 3900 Atlanta, GA 30308 Telephone: (404) 781-1100 Facsimile: (404) 781-1101 E-mail: rberlin@buckleybeal.com - and - Benjamin Richard Botts, Esq. Julie Pittman, Esq. ben@cdmigrante.org julie@cdmigrante.org 822 Guilford Ave No. 970 Baltimore, MD 21202 Telephone: (855) 234-9699 Facsimile: (443) 817-0806 Counsel for the Defendants Precision 2000, Inc., Guiomar Obregon, Carlos Francisco Sanchez, and Mauricio Lancheros, are: Sean Keenan, Esq. Sunshine R. Nasworthy, Esq. CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP Meridian II, Suite 2000 275 Scientific Drive Norcross, GA 30092 Telephone: (678) 684-2154 E-mail: skeenan@cmlawfirm.com snasworthy@cmlawfirm.com Counsel for the Defendant Casa Properties, LLC, are: Glianny Fagundo, Esq. Natalie Mark, Esq. TAYLOR ENGLISH DUMA, LLP 1600 Parkwood Circle, Ste. 200 Atlanta, GA 30339 E-mail: gfagundo@taylorenglish.com nmark@taylorenglish.com PRIMARY COLOR: Website Not Accessible to Blind Users, Loaiza Says ----------------------------------------------------------------- DAVID LOAIZA, individually and on behalf all others similarly situated v. PRIMARY COLOR, INC. d/b/a ALCHEMY WORKS, a California corporation; and DOES 1 to 10, inclusive, Case No. 2:21-cv-00874-PA-AGR (C.D. Cal., Jan. 29, 2021) alleges that the Defendants failed to design, construct, maintain, and operate its Website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually impaired people. According to the complaint, the Defendants' denial of full and equal access to its Website, https://www.alchemyworks.us/, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of the Plaintiff's rights under the Americans with Disabilities Act and California's Unruh Civil Rights Act. Because the Defendants' Website is not fully or equally accessible to blind and visually impaired consumers, resulting in violation of the ADA, the Plaintiff seeks a permanent injunction to cause a change in the Defendant's policies, practices, and procedures so that the Defendant's Website will become and remain accessible to blind and visually-impaired consumers. The Plaintiff is a visually impaired and legally blind person who requires screen-reading software to read Website content using her computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Primary Color offers the Website to the public. The Website offers features which should allow all consumers to access the goods and services which the Defendant offers in connection with its physical locations. The goods and services offered by the Defendant include jewelry such as rings, bracelets, necklaces, and earrings; clothing 10 such as shoes, slippers, dresses, sweaters, and shirts; accessories such as hats, belts, bags, scarves, and shoulder straps; and vintage goods such as prints, wine racks, planters, trays, sculptures, vases, and drawings. Consumers can further access information regarding store locations, hours of operation, contact information, press coverage, shipping, returns, personalized accounts, gifts, social media webpages, returns, and about the Defendant.[BN] The Plaintiff is represented by: Thiago Coelho, Esq. Jasmine Behroozan, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: thiago@wilshirelawfirm.com jasmine@wilshirelawfirm.com PTC INC: 401(K) Plan Related Suit in Massachusetts Underway ----------------------------------------------------------- PTC Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2021, for the quarterly period ended December 31, 2020, that the company continues to defend a putative class action suit related to its 401(k) Plan. On September 17, 2020, three individual plaintiffs filed a putative class action lawsuit against PTC, the Investment Committee for the PTC Inc. 401(k) Plan, and the Board of Directors in the U.S. District Court for the District of Massachusetts alleging claims regarding the Plan. Plaintiffs allege that the defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA) in the oversight of the Plan, principally by selecting and retaining certain investment options despite their higher fees and costs than other available investment options, causing participants in the Plan to pay excessive recordkeeping fees and suffer lower returns on their investments, and by failing to monitor other fiduciaries. The plaintiffs seek unspecified damages on behalf of a class of Plan participants from September 17, 2014 through the date of any judgment. PTC has filed its response to the complaint and is defending the case vigorously. PTC said, "We are currently unable to reasonably estimate what effect the ultimate outcome might have, if any, on our financial position, results of operations or cash flows." PTC Inc. develops and delivers software products and solutions worldwide. It operates in two segments, Software Products and Services. The Company was formerly known as Parametric Technology Corporation and changed its name to PTC Inc. in January 2013. PTC Inc. was founded in 1985 and is headquartered in Needham, Massachusetts. QUANTUM HEALTH: Court Certifies Utilization Review Employee Class ----------------------------------------------------------------- In the class action lawsuit captioned as SCOTT SNIDER, on behalf of himself and all others similarly situated, v. QUANTUM HEALTH, INC., Case No. 2:20-cv-02296-JLG-CMV (S.D. Ohio), the Hon. Judge James L. Graham entered an order: 1. granting in part the plaintiff's motion as it relates to conditional certification, and this action is conditionally certified as an Fair Labor Standards Act (FLSA) collective action pursuant to 29 U.S.C. section 216(b) on behalf of Named Plaintiff Scott Snider. The Court conditionally certifies a class under the FLSA consisting of: "all individuals employed by Defendant in Ohio as a non- supervisory, salaried "Utilization Review Employee" during the past three years, who were classified as exempt from overtime compensation;" "Utilization Review Employees" include, without limitation, individuals who performed utilization review work under the following job titles: Utilization Review Nurse, Utilization Management Nurse, Pre-Certification Nurse, and Rapid Response Nurse, and other similar job titles whose job duties include performing utilization review work; 2. directing the Defendant, within 14 days of this Opinion and Order, to produce a computer-readable data file containing the names, job titles, dates of employment, last known mailing addresses, last known personal email addresses, telephone numbers, and work locations for all collective members who fit this definition; and 3. overruling the Defendant's objections to the Plaintiff's proposed notice and consent in part and sustains the Defendant's objections in part and therefore denies the Plaintiff's motion in part concerning the proposed Notice and Consent to join forms. The parties must meet and confer to produce a Joint Proposed Notice and Consent that comports with the conditions outlined in this Opinion and Order on or before February 15, 2021. Quantum Health is an award-winning consumer healthcare navigation company that delivers an unparalleled consumer experience based on empathy and trust, enabling employers to achieve industry-leading satisfaction rates and independently validated claim savings. A copy of the Court's order dated Feb. 1, 2020 is available from PacerMonitor.com at https://bit.ly/3p40Vis at no extra charge.[CC] QUEEN'S TREASURE: Burbon Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against The Queen's Treasurers, Inc. The case is styled as Luc Burbon and on behalf of all persons similarly situated v. The Queen's Treasurers, Inc., Case No. 1:21-cv-00762 (E.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Queen's Treasures -- http://www.thequeenstreasures.com/-- is a designer and manufacturer of premium quality 18" doll clothes, 18" doll furniture and more.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com RIEBE'S AUTO: Faces Vega Employment Suit in California State Court ------------------------------------------------------------------ A class action lawsuit has been filed against Riebe's Auto Parts, LLC. The case is captioned as Michael Vega vs. Riebe's Auto Parts, LLC, a Georgia Limited Liability Company, Case No. 34-2021-00293414-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 29, 2021). The case arises from employment-related issues. Riebe's Auto provides auto parts. The Company offers automobile tires, batteries, bearings, and other accessories. Riebe's Auto Parts operates in the State of California.[BN] The Plaintiff is represented by: Bevin Allen Pike, Esq. CAPSTONE LAW APC 1875 Century Park E Ste., 1000 Los Angeles, CA 90067-2533 Telephone: (310) 712-8010 E-mail: Bevin.Pike@capstonelawyers.com ROBERTA PLACE: Fails to Protect Residents Against COVID, Suit Says ------------------------------------------------------------------ Canadian Press reports that owners of an Ontario long-term care home plan to defend themselves against a class-action lawsuit alleging they failed to protect residents from a COVID-19 outbreak. Roberta Place Retirement Lodge and Jarlette Inc. are named as defendants in the proposed class action. The notice of intent was served to lawyers representing residents' families. An unproven statement of claim filed to the Ontario Superior Court of Justice alleges Roberta Place failed to take basic measures to protect residents against COVID-19. An outbreak at the Barrie, Ont., home driven by a more infectious variant of the virus has infected nearly all residents in the home and killed 66 since Jan. 8. The court document alleges that the facility failed to separate residents infected with COVID-19 from those who didn't have the virus, among other allegations. This report by The Canadian Press was first published Feb. 5, 2021. [GN] ROBERTA PLACE: To Fight Class Action Over COVID-19 Outbreak ----------------------------------------------------------- CTV News reports that Feb. 8 marks one month since a devastating outbreak of COVID-19 took hold at Roberta Place Long Term Care in Barrie. Since an outbreak was declared Jan. 8, all 129 residents of the home have tested positive, and 69 of them have died. An infected essential caregiver has also passed away. On Feb. 7, the operator of Roberta Place said 105 staff members had been sickened. Jarlette Health Services said there are no active resident cases and 14 active staff cases. The rapid rise in cases in the early hours of the outbreak meant many symptomatic staff members had to stay home. David Jarlette, President of Jarlette Health Services, has conceded that left Roberta Place too short-handed to separate infected and non-infected residents properly. "The virus came into the home so quickly . . . we found ourselves not to have the staffing resources in order to cohort in a quick and timely fashion." We now know the more contagious B.1.1.7 U.K. variant of COVID-19 was moving through the long-term care home. At least one class-action lawsuit against Roberta Place's operators has been filed, alleging gross negligence at the long-term care home. The claims have not been tested in court, and the operators say they intend to defend themselves. [GN] ROBINHOOD FINANCIAL: Faces Suit Over Improper Trading Practices --------------------------------------------------------------- ROBEL GHEBREHIWET, individually and on behalf of all others similarly situated, Plaintiff v. ROBINHOOD FINANCIAL LLC; ROBINHOOD SECURITIES, LLC; and ROBINHOOD MARKETS, INC., Defendants, Case No. 3:21-cv-00214-AJB-RBB (S.D. Cal., Feb. 4, 2021) alleges violation of the California Consumer Legal Remedies Act and the Unfair Competition Laws. The Plaintiff alleges in the complaint that from September 1, 2016, through June 16, 2020, Robinhood breached its duty of best execution and its duty of loyalty by abusing a practice in which it negotiated and received "payments for order flow" (PFOF) at four times the industry standard from the principal trading firms through which it routed its customers' orders. In turn, these trading firms would recoup their payments to Robinhood by providing Robinhood customers, including Plaintiff and the Class, less price improvement on their trades or no price improvement at all. In other words, Robinhood explicitly offered to accept less price improvement for its customers from principal trading firms, in exchange for receiving a higher rate of payment for order flow for itself. Thus, while Robinhood reaped huge profits from these arraignments, Plaintiff and the Class suffered harm as they received inferior execution prices than they otherwise would have received, the suit says. Allegedly, Robinhood did not disclose that it generated most of its revenue from these PFOF transactions, and did not disclose their negative impact on its customers' trades during this period. Rather, Robinhood affirmatively concealed the PFOF it received and the corresponding poor price improvement passed through to its customers, added the suit. Robinhood's alleged material omissions, misrepresentations, and concealment of its PFOF arrangements and the inferior execution prices they caused was a breach or Robinhood's fiduciary duty to Plaintiff and the Class. Robinhood Financial LLC operates as an institutional brokerage company. The Company provides online and mobile application-based discount stock brokerage solutions that allows users to invests in publicly-traded companies and exchange-traded funds. [BN] The Plaintiff is represented by: Robert K. Shelquist, Esq. Karen H. Riebel, Esq. Rebecca A. Peterson, Esq. Stephen M. Owen, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: rkshelquist@locklaw.com khriebel@locklaw.com rapeterson@locklaw.com smowen@locklaw.com ROBINHOOD FINANCIAL: GameStop Frenzy May Worsen Social Inflation ---------------------------------------------------------------- Heather A. Turner, writing for NUPropertyCasualty360, reports that recent stock market volatility caused by the frenzied trading of GameStop, AMC Theatres and other shares could spur a wave of shareholder ligation and worsen social inflation, according to AM Best. Frustrated investors have already filed class-action lawsuits against Robinhood after it restricted trading of the stocks made popular on the WallStreetBets Reddit forum, allegedly to help Citadel Securities, one of the brokerage's largest investors. AM Best expects many more lawsuits will soon follow. "Disclosures provided by Robinhood will be under intense scrutiny by lawyers, and although it may be a while before the courts decide, insurers providing coverage for Robinhood could still face steep defense and containment costs (DCC)," the credit rating agency said in its latest Best's Commentary. Some D&O policies may cover expenses related to government investigations if company directors are the center of probes, said AM Best. This is not the first time Robinhood has been on the government's radar. In December 2020, the company agreed to pay $65 million to settle claims that it was selling transaction data without disclosing the practice to customers following a Securities and Exchange Commission (SEC) review. As the current Robinhood lawsuits move through the courts, rising DDC costs and juries' increasing propensity to deliver large awards will add to the mounting pressures facing D&O and professional liability insurers. "Headline news such as Robinhood and the involvement of hedge funds, along with the accelerated pace of communication and engagement in social media, will likely worsen social inflation significantly -- something insurers will have to monitor closely over the medium term," AM Best noted. [GN] ROBINHOOD FINANCIAL: Manipulates Stock Market, Petrosyan Suit Says ------------------------------------------------------------------ EMIL PETROSYAN, individually and on behalf of all others similarly situated, Plaintiff v. ROBINHOOD FINANCIAL LLC, ROBINHOOD SECURITIES, LLC, and ROBINHOOD MARKETS, INC., Defendants, Case No. 3:21-cv-00238-JLS-DEB (S.D. Cal., February 9, 2021) is a class action against the Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, breach of fiduciary duty, and violations of the California's Consumer Legal Remedies Act and the California's Unfair Competition Law. The case arises from the Defendants' alleged manipulation of the stock market for Nokia Oyj (NOK), AMC Entertainment Holdings, Inc. (AMC), and other securities by prohibiting retail investors from purchasing shares of the manipulated stocks and restricting their ability to make transactions. As a result of the Defendants' alleged wrongful conduct, the Plaintiff and Class members suffered loss of money and/or property. Robinhood Markets, Inc. is an online brokerage firm, with its principal place of business at 85 Willow Road, Menlo Park, California. Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business at 85 Willow Road, Menlo Park, California. Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business at 500 Colonial Center Parkway, Suite 100, Lake Mary, Florida. [BN] The Plaintiff is represented by: Robert K. Shelquist, Esq. Karen H. Riebel, Esq. Rebecca A. Peterson, Esq. Stephen M. Owen, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 ROBINHOOD FINANCIAL: Manipulates Trading Platform, Muncy Suit Says ------------------------------------------------------------------ DAMON MUNCY, Individually and on behalf of all others similarly situated v. ROBINHOOD FINANCIAL, LLC, ROBINHOOD SECURITIES, LLC, ROBINHOOD MARKETS, INC., and DOES 1-100, Case No. 2:21-cv-01729 (D.N.J., Feb. 2, 2021) is a class action on behalf of persons or entities who sold any of the Affected Securities via the Robinhood trading platform on or after January 28, 2021 as a result of Robinhood's restrictions, seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. The Affected Securities include American Airlines Group Inc. (traded on NASDAQ under ticker "AAL"), AMC Entertainment Holdings Inc. (NYSE: "AMC"), BlackBerry Limited (NYSE: "BB"), Bed Bath & Beyond Inc. (NASDAQ: "BBBY"), and GameStop Corp. (NYSE: "GME"). On January 28, 2021, Robinhood, and other brokers, restricted trading on the Affected Securities to closing securities only. As a result of this injection of fear into the market and artificial restriction of demand, the price of the Affected Securities dropped precipitously, causing significant damages to retail investors, the suit says. According to the complaint, each of the Affected Securities had become popular amongst retail investors, and had recently experienced high trade volume. This increased interest caused increased volatility and large losses to those institutions that shorted the Affected Securities, losing more than $5 billion dollars in the days leading up to January 28, 2021. Most notably, GME shares experienced a meteoric rise in January 2021, rising from a close of $18.84 per share on December 31, 2020, to $347.51 on January 27, 2021. The series of events that led to Robinhood's manipulation begins with Gamestop, which is traded on the NYSE under the ticker "GME." For years, GME had an absurdly high short percentage of float, over 200%. That means that for every share in the market, two were being shorted. Those who shorted GME hoped that the price of Gamestop securities would decline significantly or that Gamestop would become bankrupt, leaving the shorted shares worthless. Retail investors, believing that the stock was undervalued, began purchasing the stock at a high volume, the suit added. The Plaintiff sold AAL, AMC, BB, BBBY, or GME securities on Robinhood's trading platform on or after January 28, 2021 and was economically damaged thereby. Robinhood Financial purports to operate as an institutional brokerage company. The Company purports to provide online and mobile application-based discount stock brokerage solutions that allows users to invest in publicly-traded companies and exchange-traded funds. Robinhood Securities is registered as a broker-dealer with the Securities and Exchange Commission (SEC). Robinhood Securities acts as a clearing broker and clears trades introduced by its affiliate the Defendant Robinhood Financial. Robinhood Markets is the corporate parent of Defendants Robinhood Financial LLC and Robinhood Securities, LLC.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. One Gateway Center, Suite 2600 Newark, NJ 07102 Telephone: (973) 313-1887 Facsimile: (973) 833-0399 E-mail: lrosen@rosenlegal.com ROBINHOOD FINANCIAL: Mehta Consumer Suit Goes to N.D. California ---------------------------------------------------------------- The case styled SIDDHARTH MEHTA, individually and on behalf of all others similarly situated v. ROBINHOOD FINANCIAL LLC; ROBINHOOD SECURITIES, LLC; and DOES 1 to 10, Case No. 21CV375167, was removed from the Superior Court of California for the County of Santa Clara to the U.S. District Court for the Northern District of California on February 9, 2021. The Clerk of Court for the Northern District of California assigned Case No. 3:21-cv-01013 to the proceeding. The case arises from the Defendants' alleged negligence, breach of contract, and violations of the California Consumer Privacy Act, the Customer Records Act, the California's Consumer Legal Remedies Act, the California Constitution's Right to Privacy, the Unfair Competition Law, and the False Advertising Law. Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business at 85 Willow Road, Menlo Park, California. Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood Markets, Inc., with its principal place of business at 500 Colonial Center Parkway, Suite 100, Lake Mary, Florida. [BN] The Defendants are represented by: Tiffany Cheung, Esq. Mark David McPherson, Esq. Michael Burshteyn, Esq. Thomas B. Davidson, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: TCheung@mofo.com MMcPherson@mofo.com MBurshteyn@mofo.com TDavidson@mofo.com ROBINHOOD FINANCIAL: Senate to Hold Hearing Amid Gamestop Lawsuit ----------------------------------------------------------------- K. Bell, writing for Engadget, reports that the Senate Committee on Banking will hold a hearing "on the current state of the stock market," after Reddit's GameStop squeeze ignited a fiery debate that pitted retail investors against hedge funds. "American workers have known for years the Wall Street system is broken -- they've been paying the price," Sen. Sherrod Brown, the incoming committee chairman wrote in a statement. "It's time for the SEC and Congress to make the economy work for everyone not just Wall Street." It's not clear when the hearing may take place, or exactly what will be covered. But so far multiple members of Congress have weighed in on the Reddit-fueled GameStop squeeze that resulted in trading restrictions from major brokerage firms. In the House, Rep. Maxine Waters, who chairs the House Financial Services Committee, said she also intended to hold a hearing. "As a first step in reining in these abusive practices, I will convene a hearing to examine the recent activity around GameStop (GME) stock and other impacted stocks with a focus on short selling, online trading platforms, gamification and their systemic impact on our capital markets and retail investors," she said in a statement. News of the hearings comes after Robinhood was hit with a class action lawsuit after it restricted users from trading on Jan. 28. The company said in an update it would resume "limited buys of these securities" beginning on Jan. 29. Separately, Fox Business reported that Robinhood was anticipating an SEC investigation that "involves market manipulation." "The SEC somehow goes and looks at the Reddit boards and tries to figure out who's hyping what, who's touting what, and maybe sort of link it with trades," Fox Business' Charlie Gasparino said, citing "regulatory sources." He added that such an investigation is likely an "impossible" task since most Reddit users are anonymous. A Robinhood spokesperson didn't immediately respond to a request for comment on potential investigations. And while the SEC hasn't officially weighed in on Robinhood, Reddit, or GameStop, it issued a statement earlier saying it was "actively monitoring the on-going market volatility in the options and equities markets." [GN] ROBINHOOD FINANCIAL: Six Hedge Funds Included in Class Action Suit ------------------------------------------------------------------ Hedgeweek reports that a class action lawsuit filed in California Southern District Court on 28 January, 2021 has been amended to include six hedge fund companies worth billions of dollars, a total of ten online brokers who manipulated the stock market, and the thirteen stocks involved. The various brokers and hedge funds allegedly conspired together to knowingly deprive retail investors of the ability to invest in the open market during an unprecedented stock rise, in order to benefit the hedge fund companies, such as Citadel, Melvin Capital, and Maple Lane Capital. The lawsuit alleges that the online brokers involved froze the everyday investors out to enable the hedge funds to stop losing money when the stocks rose in value. The lawsuit continues to allege that Robinhood and nine other online brokers failed to provide duty of care to their customers and that they purposefully harmed their customers positions in GameStop Corp (NYSE: GME) and twelve other stocks, such as Blackberry, LTD (NYSE: BB), AMC Entertainment Holdings Inc. (NYSE: AMC), Nokia Oyj (NYSE: NOK), Koss Corporation (NYSE: KOSS), and Naked Brand Group Ltd (NYSE: NAKD). The lawsuit is also alleging that Robinhood was recently fined USD1.5 million by the SEC, and a monitor has been assigned to watch their activities closely. This class action is the first and only one to include all six hedge funds, all ten brokers, and all thirteen stocks. The case is 3:21-cv-00167, Nordeen et al v Robinhood Financial LLC et al. The plaintiffs are represented by the Law Offices of Gary R Carlin APC, a Long Beach based law firm. [GN] RUSTIC DIME: Ruiz Sues Over Unpaid Wages, Retaliation & Harassment ------------------------------------------------------------------ OSBALDO RUIZ, individually and on behalf of all others similarly situated, Plaintiff v. RUSTIC DIME, INC., GJENMI JEWELRY, and DOES 1 through 10, inclusive, Defendants, Case No. 21STCV05437 (Cal. Super., Los Angeles Cty., February 10, 2021) is a class action against the Defendants for violations of the California Labor Code and the California Business & Professions Code including disability discrimination, retaliation, hostile work environment and harassment, failure to prevent discrimination and harassment, constructive discharge, unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, failure to pay minimum wage, wages not timely paid upon termination, non-compliant wage statements, failure to accommodate, and failure to engage in the interactive process. The Plaintiff was hired by the Defendants in or around October 2018. Rustic Dime, Inc. is an online men's clothing retailer headquartered in Los Angeles, California. Gjenmi Jewelry is a jewelry retailer based in California. [BN] The Plaintiff is represented by: Abraham Mathew, Esq. Jacob George, Esq. MATHEW & GEORGE 500 S. Grand Ave, Suite 2050 Los Angeles, CA 90071 Telephone: (310) 478-4349 Facsimile: (310) 478-9580 E-mail: abraham@mathewandgeorge.com jacob@mathewandgeorge.com SAG-AFTRA: Suspends Annual Dues Hike Amid Health Plan Class Action ------------------------------------------------------------------ David Robb, writing for Deadline, reports that SAG-AFTRA's national board has suspended this year's automatic annual 2% dues increase and will hold initiation fees at their current levels. The move, which had been recommended by the union's Finance Committee, comes in recognition of the impact that the Covid-19 pandemic has had on many members' earnings. In other actions, the board, meeting on Feb. 6, approved a recommendation to extend the lease on the union's headquarters in Los Angeles to the year 2032, and approved a new agreement covering content created by so-called "influencers" when they are paid to advertise products or services. The union said that the new "influencers" agreement will allow it to "increase its coverage over this form of advertising, and increase opportunities for members to earn union income and qualify for health and pension benefits." "Making it easier to cover this type of work has been a top priority for our organization," said SAG-AFTRA president Gabrielle Carteris. "I want to commend the efforts of our staff in creating an agreement that will benefit SAG-AFTRA's current members as well as allowing all creators an opportunity to join the union. As new ways of storytelling emerge, it's imperative that we embrace and lift up these artists." Despite the pandemic, secretary-treasurer Camryn Manheim and chief financial officer Arianna Ozzanto presented reports to the board showing that the fiscal year 2021 actuals "have performed better than planned." In her President's Report, Carteris opened with a remembrance of members who died since the last national board meeting and led the board in a moment of silence. She also reported on the industry's Return to Work Agreement and applauded members across the country who are encouraging adherence to safety protocols that protect members and ensure a safer return to work. She also saluted SAG-AFTRA broadcast members "for their fortitude and coverage over the past year, many while being maligned and facing violence when covering the news." As reported here earlier, the board permanently banned former President Donald Trump from ever rejoining the union. Trump, who had been a member of the union for more than 30 years, resigned from SAG-AFTRA while facing almost certain expulsion. The board found that his constant attacks on the press -- which includes many of the union's broadcast members -- "is anathema to the values embodied by SAG-AFTRA and to the members of SAG-AFTRA," and undermined "the delivery of truthful information to the public." The board also found that his actions leading up to the failed insurrection at the U.S. Capitol on Jan. 6 undermined "the peaceful transition of power in the United States." The U.S. Senate will put Trump on trial, following his second impeachment in the House of Representatives, for inciting the riot, and if convicted -- which is unlikely -- he'll be banned from ever holding public office again. In his letter of resignation, Trump wrote: "Who cares! I no longer wish to be associated with your union. As such, this letter is to inform you of my immediate resignation from SAG-AFTRA. You have done nothing for me." That claim, however, is belied by the fact that he receives nearly $100,000 a year in SAG-AFTRA pensions. According to a financial disclosure report he filed in August, he receives a $90,776 pension for the acting work he performed on SAG-covered shows and an $8,724 pension for his AFTRA-covered work. In other board business, David White, SAG-AFTRA's national executive director, gave an update of the union's operations, including gains in member services, enforcement, organizing, and member education and engagement. White also reported on the union's technology and innovation enhancements, including the union's new online enrollment tool, digital claims tracker, development of the online producer's portal, and the results of the sexual harassment reporting app beta test. "SAG-AFTRA continues to tap the power of innovation to serve members more efficiently," White said. "The goal of our technology enhancements is to make the member experience faster, more efficient and more empowering. The pandemic has only motivated our team to redouble our efforts, and our work is paying big dividends for our members." SAG-AFTRA and the AFL-CIO will co-host the 3rd Annual Labor Innovation and Technology Summit Feb. 19. "This is an invaluable opportunity to bring workers from across labor to the table for crucial discussions about workforce transformation," Carteris said. In other business, the board rejected a changed proposed by the union's minority party that would have brought the L.A. Local's constitution in line with how ever other Locals handle board vacancies and replacements. Proponents of the change argued that this would have "fixed the issue where political parties in L.A. run high-profile members who have no intent of serving just to win seats that they then immediately resign from and appoint their party members who were not elected." The union's ruling Unite for Strength party, which opposed the change, makes up a majority of the national board, while the Membership First opposition party, which sought the change, makes up a majority of the L.A. Local's board, which represents nearly half of all the union's 160,000 members. The two factions have also been at loggerheads over changes that were recently implemented by the SAG-AFTRA Health Plan, which, facing staggering deficits, raised premiums and earnings thresholds for coverage, effective on Jan. 1, in order to stay afloat. In December, a group of SAG-AFTRA dissidents led by former SAG president Ed Asner, filed a class action lawsuit against the Plan and its trustees, saying that the changes "illegally discriminate based on age and violate the Age Discrimination and Employment Act of 1967" -- a charge the trustees have flatly denied. In a statement, the union said last night that the board rejected a demand "that it immediately commence litigation against certain member volunteers, elected leaders, staff members and Plan trustees with regard to the SAG-AFTRA Health Plan's 2021 benefits changes." [GN] SAINT LUKE'S HEALTH: March 11 Response to Class Cert. Bid Sought ---------------------------------------------------------------- In the class action lawsuit captioned as MAGGIE ROHAN v. SAINT LUKE'S HEALTH SYSTEM, INC., THE SAINT LUKE'S HEALTH SYSTEM RETIREMENT COMMITTEE, and JOHN and JANE DOES 1-25, Case No. 4:20-cv-00179-SRB (W.D. Mo.), the Plaintiff Maggie Rohan and Defendants Saint Luke's Health System and the Saint Luke's Health System Retirement Committee jointly ask the Court for a 30-day extension of time for the Defendants' response to the Plaintiff's motion for class certification and a 30-day extension of time for the Plaintiff's reply brief. The parties request that the Court enter an order that the Defendants' deadline to respond to Plaintiff's Motion for Class Certification be extended to March 11, 2021, and that Plaintiff's deadline to submit a reply brief is extended to April 12, 2021. Under the Court's Scheduling and Trial Order, the Defendants' response to the Plaintiff's Motion for Class Certification is due on February 9, 2021, and Plaintiff's reply brief is due on March 11, 2021. The parties currently are engaged in discussions to potentially reach a cooperative resolution of the issues raised by the Plaintiff's motion for class certification. The parties also are engaged in parallel discussions to potentially settle this case. The requested extension will allow the parties to focus on these negotiations and conserve judicial and party resources by avoiding potentially unnecessary time and expense associated with class certification briefing. Saint Luke's Health System is a non-profit hospital network in the bi-state Kansas City metro area, located in northeast Kansas and northwest Missouri. It traces its history to its flagship hospital, Saint Luke's Hospital of Kansas City, which was established in 1882. A copy of the the Parties' motion dated Feb. 2, 2020 is available from PacerMonitor.com at http://bit.ly/3d0FigFat no extra charge.[CC] The Plaintiff is represented by: Mark G. Boyko, Esq. BAILEY & GLASSER LLP 8012 Bonhomme Avenue, Suite 300 Clayton, MO 63105 Telephone: (314) 863-5446 Facsimile: (314)-863-5483 E-mail: mboyko@baileyglasser.com - and - Gregory Y. Porter, Esq. Alexandra L. Serber, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101 E-mail: gporter@baileyglasser.com aserber@baileyglasser.com - and - Douglas P. Needham, Esq. Robert A. Izard, Esq. Mark P. Kindall, Esq. Oren Faircloth, Esq. IZARD, KINDALL & RAABE, LLP 29 South Main St., Suite 305 West Hartford, CT 06107 Telephone: (860) 493-6292 E-mail: dneedham@ikrlaw.com rizard@ikrlaw.com mkindall@ikrlaw.com ofaircloth@ikrlaw.com - and - Kristie Blunt-Welder, Esq. WELDER BLUNT WELDER & ASSOCIATES, LLC 4741 Central St., Suite 514 Kansas City, Mo 64112 Telephone: (844) 935-3373 E-mail: kwelder@welderfirm.com The Defendants are represented by: Phillip G. Greenfield, Esq. GM LAW PC 1201 Walnut, 20th Floor Kansas City, MO 64106 Telephone: (816) 471-7700 E-mail: philg@gmlawpc.com - and - Lars C. Golumbic, Esq. Sean C. Abouchedid, Esq. Samuel I. Levin, Esq. Nate W. Ingraham, Esq. GROOM LAW GROUP, CHARTERED 1701 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 857-0620 E-mail: lgolumbic@groom.com sabouchedid@groom.com slevin@groom.com ningraham@groom.com SANTA MONICA: Alequin Files Suit in Illinois Over BIPA Violations ----------------------------------------------------------------- RAFAEL ALEQUIN, individually and on behalf of all others similarly situated, Plaintiff v. SANTA MONICA SEAFOOD COMPANY; and ETHOS SEAFOOD GROUP, LLC, Defendants, Case No. 1:21-cv-00686 (N.D. Ill., Feb. 5, 2021) alleges violations of the Illinois Biometric Information Privacy Act. The Plaintiff alleges in the complaint that the Defendants collected, stored and used—without first providing notice, obtaining informed written consent or publishing data retention policies, the fingerprints and associated personally identifying information of hundreds of its employees, and former employees, who are being required to "clock in" with their fingerprints. The Defendants never adequately informed the Plaintiff or the Class of their biometrics collection practices, never obtained the requisite written consent from the Plaintiff or the Class regarding their biometric practices, and never provided any data retention or destruction policies to the Plaintiff or the Class, the suit says. Santa Monica Seafood Company wholesales and retails seafood. The Company offers fresh seafood to restaurants and retail customers. [BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MASON LIETZ & KLINGER LLP 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gklinger@masonllp.com SELIGMAN WESTERN: Lowry Seeks to Recover Managers' Unpaid Wages --------------------------------------------------------------- MELANIE LOWRY, an individual v. SELIGMAN WESTERN ENTERPRISES LTD., a corporation; SWEL GROUP, a business organization form unknown; MICHAEL SAREBANHA, an individual; Does 1 through 50 Inclusive, Case No. 21STCV04086 (Cal. Super., Los Angeles Cty., Feb. 2, 2021) is brought on behalf of the Plaintiff, on behalf of those similarly situated, and on behalf of the general public, seeking full restitution and disgorgement of all employment compensation wrongfully withheld, and to restore any and all monies withheld by the Defendants, pursuant to the California Labor Code. The Plaintiff contends that whenever she attempted to submit the actual number of hours worked in a particular pay period, Christina Anderson, the owner’s assistant unilaterally changed her time records by improperly and fraudulently reducing the number of hours that she worked and to falsely reflect as having only worked a regular 40 hour workweek. The Plaintiff was employed by the Defendant from March 15 17, 2020 through July 1, 2020, as operational manager, responsible for managing 11 of Defendant Employer's apartment buildings in the greater Los Angeles area. Although she was scheduled to work five days per week from 8 a.m. to 5 p.m. with a one hour lunch break, the demands of the job, frequently forced her to work through lunch and continue to work late, often until 6:30 p.m., the Plaintiff claims. She received $25 per hour, together with free rent for a studio apartment at the Francis Drake Villa (FDV) apartment building, located in the Mid-Wilshire section of Los Angeles, one of the 11 properties she managed.[BN] The Plaintiff is represented by: Stephen F. Danz, Esq. STEPHEN DANZ & ASSOCIATES, P.C. 11620 Wilshire Blvd., Suite 900 Los Angeles, CA 90025 Telephone: (310) 207-4568 - and - Brian I. Vogel, Esq. LAW OFFICES OF BRIAN I. VOGEL 572 E. Green Street, Suite 305 Pasadena, CA 91101 Telephone: (626) 796-7470 SETTON PISTACHIO: Magistrate Endorses Denial of Ali's Remand Bid ---------------------------------------------------------------- In the lawsuit titled LILIA ALI, on behalf of herself and all others similarly situated, Plaintiffs v. SETTON PISTACHIO OF TERRA BELLA INC., a California corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 1:19-cv-00959-NONE-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California recommends that the Plaintiff's Motion to Remand be denied. The Court deemed the matter suitable for resolution without oral argument and vacated the hearing set for March 2, 2020. Thereafter, the Motion was referred to the Magistrate Judge for issuance of findings and recommendations pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302(a). The Plaintiff originally filed the action in the Superior Court of California for the County of Tulare on April 27, 2016, naming Setton Pistachio of Terra Bella, Inc. as Defendant. On September 2, 2016, the Plaintiff filed a First Amended Complaint asserting claims for: (1) Failure to pay overtime wages; (2) Failure to pay minimum wages; (3) Failure to pay all wages upon termination; (4) Failure to provide accurate wage statements; and (5) Unfair competition. The Defendant removed the matter to this Court on July 12, 2019. Its notice of removal states that the matter was removed based on 28 U.S.C. Section 1332(d) (the Class Action Fairness Act, or "CAFA"). It also states that the Court has original jurisdiction over the matter pursuant to CAFA as (1) any member of the putative class is a citizen of a state different from the Defendant, (2) the aggregate number of putative class members is 100 or greater, and (3) the aggregate amount in controversy exceeds the $5,000,000 minimum. On August 8, 2019, the Plaintiff filed a Motion for Remand. The sole issue raised by the Plaintiff was the timeliness of the Defendant's removal. On December 18, 2019, the Court issued an Order Denying Plaintiff's Motion for Remand finding that the Defendant's removal was timely. On February 3, 2020, the Plaintiff filed a second Motion for Remand, this time raising exceptions to CAFA. The Defendant filed an opposition on February 14, 2020, and the Plaintiff replied on February 24, 2020. On May 14, 2020, the Plaintiff filed a Notice of Supplemental Authority in Support of her Motion to Remand Action to State Court, and the Defendant responded on May 21, 2020. On February 25, 2020, the Court took the matter under submission. On December 11, 2020, the matter was referred to Magistrate Judge Barbara A. McAuliffe for the issuance of findings and recommendations. The Plaintiff argues that the mandatory home state exception is applicable to this case, and the case should be remanded to state court. There is no debate that the Defendant is domiciled in California. The Court's order denying the Plaintiffs' first motion to remand found that the Defendant is a resident of California. Therefore, the Defendant is domiciled in the state in which the action was filed. The only issue in this motion is whether two-thirds of the putative class members are citizens of California. The Plaintiff asserts that the citizenship requirement is met based on (1) the number of putative class members with California addresses as of July 15, 2019, and (2) that the proposed class definitions would further limit the class to persons domiciled in California. The Defendants argue that the Plaintiff's evidence is insufficient to show that at least two-thirds of the putative class is domiciled in California. Judge McAuliffe holds that the Plaintiff's arguments fail to rise above the level of mere guesswork, and the evidence does not establish that two-thirds of putative class members are citizens of California. The Plaintiff asks the Court to rely on Adams v. West Marine Prods., 958 F.3d 1216, 1220 (9th Cir. 2020) to grant the motion. In Adams, the plaintiff not only established that ninety percent of the class members' last known addresses were in California but provided a sworn statement from the named plaintiff, attesting that only citizens of California were hired and no foreign nationals were ever hired by the defendant. Judge McAuliffe opines that the Plaintiff cannot establish citizenship (domicile) of the putative class members based on their residence. First, the Plaintiff has provided evidence that in July 2019, nearly 2,119, or 98.42% of the putative class had California addresses based on the National Change of Address system. At that time, the claims administrator updated the mailing list and "found 2119 addresses in the state of California." However, the Plaintiff has not established that those addresses are correct. Identifying these addresses based on the National Change of Address system does not mean that there has been confirmation that the addresses belong to the class member. Second, even if the Plaintiff had demonstrated and confirmed that 98.42% of the putative class members had valid California addresses at the time of removal, she has not demonstrated that those class members are domiciled in California, Judge McAuliffe holds. In the case, there is no evidentiary support that the class members with California addresses are domiciled there, when many of them are seasonal workers, employed with the Defendant for a few months a year, Judge McAuliffe opines. The Plaintiff also argues that citizenship can be determined by the combination of residence and location of employment. The Plaintiff claims that not only does the addresses of 98.42% of the class lead to the presumption that those 2,119 putative class members are domiciled in California, but also that their place of employment supports that argument. Judge McAuliffe finds that the Plaintiff is unable to establish that residence and place of employment together demonstrate domicile in this case. First, the class is not limited to current employees of Defendant. Former employees are included in the proposed class. The Plaintiff alleges three different classes each of which include "all former employees of defendants." Second, place of employment is only one factor that may be considered in determining a person's domicile. Here, the entire record does not support the Plaintiff's premise. While the Court is entitled to make reasonable inferences about the domicile of putative class members, these facts are not enough to allow the Court to make the inference that the Plaintiff is requesting, Judge McAuliffe says. The Plaintiff also argues that the proposed class definition limits the class to only California domiciled class members. The Plaintiff's proposed class definition defines the class as "current and former employees of Defendant within the State of California." Judge McAuliffe notes that the Plaintiff has failed to establish by a preponderance of the evidence that more than two-thirds of the putative class are domiciled in California. The Court will, therefore, recommend that the Plaintiff's Motion for Remand be denied. In conjunction with the motion to remand, the Plaintiff moves for recovery of the costs and attorneys' fees incurred in seeking remand. Because the Court will recommend that the motion to remand be denied, it will likewise recommend that the Plaintiff's request for attorneys' fees be denied. The Defendant requests that sanctions be imposed against the Plaintiff for bringing their second motion for remand. The Defendant provides no legal authority for imposing sanctions. The Defendant argues that the Plaintiff violated a court order. In denying the prior motion to remand, the Court cautioned both parties that "that successive motions on similar issues that were or could have been previously raised are strongly discouraged and will be looked upon with disfavor." The Plaintiff subsequently filed the motion to remand. the Defendant argues that it is a violation of a court order. The Plaintiff had the information in her possession prior to filing the first motion to remand. But, there is no additional showing of recklessness, frivolousness, harassment, or any other improper purpose. Judge McAuliffe notes that the Plaintiff should have been thorough in the first motion to remand and included all arguments, however, the Court will not recommend a finding of bad faith in this case. In conjunction with the motion to remand, the Plaintiff moves for a continuance and leave to conduct jurisdictional discovery to provide a more satisfactory showing of the facts necessary for removal. No scheduling order has been entered in this case. Once this matter is resolved, discovery on class certification will be scheduled. The Court will not recommend that this matter be continued. However, the parties may jointly request the Court set a scheduling conference while the findings and recommendations are pending. The Plaintiff has now had the opportunity file two motions for remand. The Plaintiff mentions in her motion her intent to file another motion to remand. The Court says it has limited resources and cannot expend those resources on repetitive motions, brought by a party in a piecemeal fashion. Such motions may subject a party to the full panoply of sanctions available to the Court. The Court cautions the Plaintiff against successive motions on similar issues which could have been previously raised; they are strongly discouraged and will be looked upon with disfavor. Therefore, before filing any additional motion to remand, the Plaintiff must obtain leave of Court to file another motion. In requesting leave, the Plaintiff will be limited to five (5) pages accurately summarizing the Plaintiff's new arguments and evidence and explaining why the motion could not have been brought with one of the other motions. The Defendant will be given leave to oppose the Plaintiff's request and will limited to five (5) pages. Based on the foregoing, it is recommended: 1. Plaintiff's motion to remand be denied; 2. Plaintiff's request for attorneys' fees and costs be denied; 3. Defendant's request for sanctions be denied; 4. Plaintiff's request for continuance and leave for jurisdictional discovery be denied; and 5. Plaintiff must obtain prior leave of Court to file another Motion to Remand. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. Section 636(b)(1). Within 14 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal. A full-text copy of the Court's Findings and Recommendations dated Feb. 4, 2021, is available at https://tinyurl.com/1yme4vfk from Leagle.com. SIFCO INDUSTRIES: April 16 Final Settlement Approval Hearing Set ---------------------------------------------------------------- SIFCO Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the final settlement approval hearing is set for April 16, 2021. The Company is a defendant in a purported class action lawsuit filed in the Superior Court of California, County of Orange, which was filed in August 2017, arising from employee wage-and-hour claims under California law for alleged meal period, rest break, hourly and overtime wage calculation, timely wage payment and necessary expenditure indemnification violations; failure to maintain required wage records and furnish accurate wage statements; and unfair competition. A settlement has been reached and the Company received preliminary court approval on July 13, 2020, following a brief delay caused by COVID-19 closures and restrictions. Class action notices were sent at the end of September and there were no objections to the settlement. On February 4, 2021, the court issued a tentative ruling to grant final approval. The final approval hearing is scheduled for April 16, 2021. The Company previously recorded an estimated loss of $315, which was determined to be an adequate reserve to cover the settlement. SIFCO Industries, Inc. produces and sells forgings and machined components primarily for the aerospace and energy markets in the United States and Europe. It was founded in 1916 and is headquartered in Cleveland, Ohio. SM ENERGY: Chieftain Royalty Bid for Class Certification Tossed --------------------------------------------------------------- In the class action lawsuit captioned as Chieftain Royalty Company v. SM Energy Company, Case No. 5:18-cv-01225 (W.D. Okla.), the Hon. Judge Bernard Jones entered an order: 1. denying the Plaintiff's motion for class certification; and 2. mooting the Defendant's application for leave to file oversized brief in support of motion for summary judgment with respect to individual claims of named Plaintiff Chieftain Royalty Company. The nature of suit alleges Contract -- Other Contract. Chieftain Royalty Company is based in Oklahoma City and owns oil and gas mineral interests in Oklahoma, Texas, New Mexico, Kansas, Arkansas, California, North Dakota, South Dakota, Montana, Nebraska and Illinois. SM Energy Company is a company engaged in hydrocarbon exploration. It is organized in Delaware and headquartered in Denver, Colorado.[CC] SOLARWINDS CORP: Jakubowitz Law Reminds of March 5 Deadline ----------------------------------------------------------- Jakubowitz Law on Feb. 7 disclosed that securities fraud class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies who purchased shares within the class periods listed below. Shareholders interested in representing the class of wronged shareholders have until the lead plaintiff deadline to petition the court. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. For more details and to speak with our firm without cost or obligation, follow the links below. SolarWinds Corporation (NYSE:SWI) CONTACT JAKUBOWITZ ABOUT SWI: https://claimyourloss.com/securities/solarwinds-corporation-loss-submission-form/?id=12729&from=1 Class Period: February 24, 2020 - December 15, 2020 Lead Plaintiff Deadline: March 5, 2021 The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) since mid-2020, SolarWinds Orion monitoring products had a vulnerability that allowed hackers to compromise the server upon which the products ran; (2) SolarWinds' update server had an easily accessible password of 'solarwinds123'; (3) consequently, SolarWinds' customers, including, among others, the Federal Government, Microsoft, Cisco, and Nvidia, would be vulnerable to hacks; (4) as a result, the Company would suffer significant reputational harm; and (5) as a result, Defendants' statements about SolarWinds's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. CD Projekt S.A. (OTC PINK:OTGLY) CONTACT JAKUBOWITZ ABOUT OTGLY: https://claimyourloss.com/securities/cd-projekt-s-a-loss-submission-form/?id=12729&from=1 Class Period: January 16, 2020 - December 17, 2020 Lead Plaintiff Deadline: February 22, 2021 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. Cleanspark, Inc. (NASDAQ:CLSK) CONTACT JAKUBOWITZ ABOUT CLSK: https://claimyourloss.com/securities/cleanspark-inc-loss-submission-form/?id=12729&from=1 Class Period: December 31, 2020 - January 14, 2021 Lead Plaintiff Deadline: March 22, 2021 The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) that the Company had overstated its customer and contract figures; (2) that several of the Company's recent acquisitions involved undisclosed related party transactions; and (3) 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. Jakubowitz Law is vigorous in pursuit of justice for shareholders who have been the victim of securities fraud. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: JAKUBOWITZ LAW 1140 Avenue of the Americas 9th Floor New York, New York 10036 T: (212) 867-4490 F: (212) 537-5887 [GN] SONOMA PLANT: Williams Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Sonoma Plant Works, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Sonoma Plant Works, Inc., Case No. 1:21-cv-01263 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Sonoma Plant Works, Inc. is located in Rohnert Park, California and is part of the Garden Centers & Farm Supply Stores Industry.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal SOUTHWEST AIRLINES: Court Certifies Class in Huntsman USERRA Suit ----------------------------------------------------------------- In the case, JAYSON HUNTSMAN, Plaintiff v. SOUTHWEST AIRLINES CO., Defendant, Case No. 19-cv-00083-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California grants Huntsman's motion for class certification, and denies the Defendant's motion to file certain documents under seal. On Jan. 7, 2019, the Plaintiff filed a putative class action complaint alleging a single cause of action against Southwest for a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). In particular, the Plaintiff alleges that the Defendant violated title 38 U.S.C. Section 4316(b), by failing to pay its employees when they take short-term military leave, while paying workers when they take comparable forms of leave, such as for jury duty leave, bereavement leave, and sick leave. The Plaintiff is a pilot for Southwest who served in the Air Force Reserves from 2012 to 2020 and during that period he took short-term military leave from Southwest to fulfill his military duty obligations. Mr. Huntsman seeks to represent a national class defined as: current or former employees of Southwest Airlines Co. who, during their employment with Southwest at any time from Oct. 10, 2004 through the date of judgment in the action, have taken short-term military leave from their employment with Southwest (i.e., military leave that lasted 14 days or fewer) and were subject to a collective bargaining agreement ("CBA"), except for employees subject to the agreement between Southwest and Transport Workers Union Local 550 covering meteorologists. Southwest employs approximately 63,215 workers, of which 53,205 are subject to a CBA. The 10,010 non-contract employees and the meteorologists are not members of the proposed class. Separately, over 8,000 of Southwest's employees have served or are actively serving in the U.S. military. Southwest organizes its employees in six separate work groups that are represented by eleven different unions and have different CBAs governing the terms of employment. The approximate composition and union representation of each work group is as follows: a. Flight Ops: (i) Pilots - 9,100 employees (SWAPA), (ii) Flight Instructors - 95 (SAPIA, TWU Local 557), and (iii) Flight Simulator Technicians - 45 (IBT Local 556). b. In Flight: Flight Attendants - 15,775 (TWU Local 556) c. Customer Support & Services: 2,860 (IAM District 142) - (i) Customer Representatives and (ii) Source of Support Representatives d. Ground Ops: (i) Customer Service Agents - 4,000 (TWU Local 556), (ii) 18,000 (TWU Local 556) - Ramp Agents, Operations Agents, Provisioning Agents, and Freight Agents e. Tech Ops: (i) Appearance Technicians - 200 (AMFA), (ii) Facilities Maintenance Technicians - 40 (AMFA), (iii) Mechanics & related Employees - 2,400 (AMFA), and (iv) Material Specialists (formerly known as Stock Clerks) - 300 (IBT Local 19) f. Network Operations Center: (i) Dispatchers - 390 (SAEA, TWU Local 550), and (ii) Meteorologists - 10 (TWU Local) 550 g. Non-Contract - 10,000 N/A (policy handbook) The Plaintiff alleges (and the Defendant admits) that the Defendant does not provide a paid leave benefit for employees who take short-term military leave to perform military service. The policy applies to all Southwest employees, regardless of work group, job title, or union representation. The Plaintiff now moves for certification of the proposed class. Judge Hamilton finds that the Plaintiff meets the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, and the co-lead class counsel meet the Rule 23(g) requirements. Once a plaintiff satisfies Rule 23(a), he or she may maintain a class action under Rule 23(b)(3) if the court finds that "the questions of law or fact common to the class members predominate over any questions affecting only individual members," and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Judge Hamilton finds that the common issues identified by the Plaintiff, whether paid leave is a "right and benefit" under 38 U.S.C. Section 4316(b) and whether short-term military leave is comparable to other forms of paid leave, can be resolved on a classwide basis. Because the Plaintiff's USERRA claim turns on Southwest's generally applicable policies, predominance is met. She also finds that the Plaintiff satisfies the superiority element. Concurrent with its opposition to the motion for class certification, the Defendant moves to file certain documents under seal. It seeks to seal Exhibits A through C of the Berry Declaration; a portion of the Freed Declaration along with Exhibits 1 and 2 to that declaration; and those portions of its opposition brief that refer to material from the aforementioned Berry and Freed Declarations. The Plaintiff designated these materials as "confidential" under the parties' protective order and has not filed any response or opposition to the motion. Judge Hamilton concludes that both the submitting party and the designating party have procedural obligations under the Civil Local Rules with which they have failed to comply. The justification proffered by the Defendant generally does not meet the compelling reasons standard, except as articulated. The Judge is cognizant of the fact that, even though the Defendant has filed the motion to file under seal, it is the Plaintiff who has designated this material as confidential. Accordingly, she will deny the motion without prejudice so that the parties may refile the motion in accordance with the procedural and substantive issues identified. For the reasons she stated, Judge Hamilton grants the Plaintiff's motion for class certification. She denies without prejudice the Defendant's motion to file under seal. The Defendant may refile its motion to file under seal within 14 days of the date on which the Order is filed. A full-text copy of the Court's Feb. 3, 2021 Order is available at https://tinyurl.com/1b2qf0c0 from Leagle.com. SPAIN: Hospitality Sector Mulls Class Action Over Business Closures ------------------------------------------------------------------- Gemma Andreu, writing for Majorca Daily Bulletin, reports that on Feb. 11, fifty initial claims for loss of earnings were expected to be presented to Spain's ministry of industry, trade and tourism by companies from the hospitality sector. Further claims will be registered over the coming weeks up to the anniversary of the introduction of the original state of alarm (March 14). The claims are the first step in what will be a class action lawsuit to be taken to the Supreme Court for damages caused by measures adopted by the Spanish government and by regional governments. Hospitality businesses have created a platform called Hosteleria de Todos, which is demanding compensation for closures and has engaged a leading law firm that has experience with such collective lawsuits. Around a thousand businesses have so far joined, a website having been set up for claims to be presented -- Inicio (lahosteleriadetodos.org). Spokespeople insist that this is not political in that they "don't care who is in the government; we only want good managers". They also stress that "we have the right to be compensated for the closures". "We have adjusted our businesses and adopted measures, but the national and regional governments don't give a fig. And we continue to pay taxes. We are the scapegoats for administrations exempting themselves from the responsibility of adopting measures that they are not taking, such as the hiring of medical personnel and track-and-tracers and augmenting intensive care units." It is accepted that the case will be difficult and that it will take a long time to resolve. Nevertheless, the platform is convinced that the demands will succeed by grouping them as a single case. "It cannot be that everything is about restrictions and that there is no type of aid. We cannot be left just to pay taxes." As reported last week, the restaurants association within the Pimem federation of small to medium-sized businesses and the recently formed Arema association of restaurants announced their own legal action against the Balearic government. Thirty-three businesses have put their names to an appeal for judicial review by the Balearic High Court with the intention of claiming damages for loss of earnings. [GN] SPARTAN RACE: Settlement Class Gets Conditional Certification ------------------------------------------------------------- In the class action lawsuit captioned as AARON FRUITSTONE, on behalf of himself and all others similarly situated, v. SPARTAN RACE INC., Case No. 1:20-cv-20836-BB (S.D. Fla.), the Hon. Judge Beth Bloom entered an order: 1. conditionally certifying a Settlement Class of: "all individuals in the United States who during the Class Period, based on Spartan's records, paid a $14 "Racer Insurance Fee" or "Insurance Fee" in connection with any race organized and sponsored by Spartan. Excluded from the Class are (a) Defendant's board members and executive level officers; (b) the federal district and magistrate judges assigned to this Action, along with their court staff; and (c) individuals who submit a valid, timely exclusion/opt-out request;" 2. appointing the Plaintiff Aaron Fruitstone as the representative of the conditionally certified Settlement Class; 3. designating and appointing The Moskowitz Law Firm, PLLC, and Bonnett, Fairbourn, Friedman & Balint, P.C., as the legal counsel for the Settlement Class; and 4. granting preliminary settlement approval. Spartan Race is an operator of an obstacle race and endurance brand intended to offer sports challenges and courses. A copy of the Court's order dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3qd9cSL at no extra charge.[CC] SPX CORP: Court Grants Bid for Summary Judgment in Brass Class Suit ------------------------------------------------------------------- In the case, DAVID BRASS, RICHARD HAMILTON, CHARLES KOZITZKY, RON BEEGLE, DAVID BABCOCK, and CARL VAN LOON, Plaintiffs v. SPX CORPORATION, Defendant, Case No. 3:14-cv-656-RJC-DSC (W.D.N.C.), Judge Robert J. COnrad, Jr., of the U.S. District Court for the Western District of North Carolina, Charlotte Division, entered an order: a. granting the Defendant's Motion for Summary Judgment; b. denying the Plaintiffs' Motion for Partial Summary Judgment; c. dismissing with prejudice the Plaintiffs' Amended Complaint; d. denying as moot the Defendant's Motions in Limine to Exclude and Motion to Strike the Reports, Opinions, and Testimony of Plaintiffs' Expert Michael A. Dunn; and e. denying as moot the Plaintiffs' Motion to Strike Response in Opposition to Motion and Exclude Defendant's Expert Witness Report and Testimony of Adam Reese. In 2001, the UAW along with several retired SPX union members filed two class action lawsuits against SPX alleging it had violated the union members' rights to lifetime health benefits. The parties eventually negotiated a resolution to those suits, which led to the execution and court approval of two settlement agreements in 2004. The language at issue in each Settlement Agreement is identical. In the Settlement Agreements, SPX agreed to provide certain health care benefits to retirees and surviving spouses for the remainder of their lives. Some specific benefits differed depending on the residence of the retirees, and exhibits to the Settlement Agreements set out the principal features of the described plans, including, among other things, co-pays, out-of-pocket expenses, deductibles, payment limits, and coverage. The Settlement Agreements do not mandate that SPX provide a particular plan or type of plan, nor do they require that SPX provide benefits that are identical to those described in the accompanying exhibits. They instead memorialized the benefit levels upon which the parties had agreed. After the signing of the Settlement Agreements in 2004, SPX made several changes affecting the provision of benefits to the settlement groups without complaint from the UAW. Effective January 2015, SPX implemented a Healthcare Reimbursement Account Plan ("HRA") in place of the prior plan. Under this plan, Medicare-eligible class members were to enroll in HRA accounts that had been set up for them, and the members were to acquire their own insurance and be reimbursed for the purchase using the HRA funds. Plaintiffs/Retirees Brass, Beegle, Babcock, Van Loon, Hamilton, and Kozitzky, along with several other retirees who have since been dismissed from the case, filed their Complaint against SPX on Nov. 25, 2014. They brought two claims in their Complaint: (1) violation of the settlement agreements under section 301 of the Labor Management Relations Act ("LMRA"); and (2) violation of employee welfare benefit plans under the Employee Retirement Income Security Act ("ERISA"). The Plaintiffs filed their Motion for Preliminary Injunction on Dec. 15, 2015. By the time the Plaintiffs' Motion for Preliminary Injunction became ripe, the event that the Plaintiff sought to prevent had already occurred, and the Court denied the motion as moot. The Plaintiffs appealed to the Fourth Circuit on Oct. 27, 2015, whereupon the Fourth Circuit denied the Plaintiffs' appeal on Sept. 28, 2017, affirming the Court's Order under different reasoning and remanding for further proceedings. The Court denied the Plaintiffs' Motion to Certify Class, filed during the intervening time period, on Oct. 17, 2017. Following failed settlement discussions both parties now seek summary judgment. The Defendant filed its Motion for Summary Judgment on Oct. 9, 2020. The Plaintiffs filed their Motion for Partial Summary Judgment on the same day. The Court heard oral arguments from both parties regarding their respective motions on Nov. 18, 2020. The parties have also filed recent motions to strike expert witness opinions. On Oct. 30, 2020, the Defendant filed a Motion in Limine and a Motion to Strike, both to exclude the reports, opinions, and testimony of the Plaintiffs' expert Michael A. Dunn. On Nov. 13, 2020, the Plaintiffs filed a Motion to Strike as well, to exclude portions of the Defendant's expert report and the corresponding testimony of the Defendant's expert Adam Reese. The Plaintiff's Amended Complaint contains four claims: two claims of violation of the Settlement Agreements' under section 301 of the LMRA, and two claims of 'violation of ERISA plans' under Section 502(a)(1)(B) of the ERISA. The Defendant seeks to dismiss all four claims at summary judgment, while the Plaintiffs seek partial summary judgment in their favor on their claims that the HRA does not provide substantially equivalent healthcare coverage to that guaranteed under the Settlement Agreements due to several specific differences. The Settlement Agreements state that "any obligation on the part of SPX to provide coverage under a specified plan or its substantial equivalent will be deemed to require only that SPX provide coverage which is substantially equivalent in benefits and it will not be deemed to regulate or affect the manner in which SPX makes such substantially equivalent benefits available." The Fourth Circuit has examined this phrase and explained that the Plaintiffs' claims "turn on whether the creation of the HRA accounts satisfies the 'substantially equivalent' provisions of each of the settlement agreements." Both parties' motions for summary judgment hinge on whether SPX's HRA system provides "substantially equivalent" benefits to those described in the Settlement Agreements. Judge Conrad finds that the determinative question in the case is whether SPX has provided the retirees with substantially equivalent benefits to those guaranteed in the original Settlement Agreements. He holds that there is "no genuine dispute as to any material fact" on that issue; the Plaintiffs have failed to show that the SPX HRA system does not provide retirees with the contractually-required substantially equivalent benefits under the Settlement Agreements, and Defendant SPX "is entitled to judgment as a matter of law." Furthermore, because he did not rely on any expert witness report or opinion in determining summary judgment, the parties' cross motions to exclude and strike expert witness testimony are moot. For these reasons, Judge Conrad (i) granted the Defendant's Motion for Summary Judgment, (ii) denied the Plaintiffs' Motion for Partial Summary Judgment, (iii) dismissed with prejudice the Plaintiffs' Amended Complaint, (iii) denied as moot the Defendant's Motions in Limine to Exclude and Motion to Strike the Reports, Opinions, and Testimony of Plaintiffs' Expert Michael A. Dunn; and (v) denied as moot the Plaintiffs' Motion to Strike Response in Opposition to Motion and Exclude Defendant's Expert Witness Report and Testimony of Adam Reese. A full-text copy of the Court's Feb. 3, 2021 Order is available at https://tinyurl.com/338xg6h2 from Leagle.com. SPX CORPORATION: Brass Amended Complaint Nixed w/ Prejudice ----------------------------------------------------------- In the class action lawsuit captioned as DAVID BRASS, RICHARD HAMILTON, CHARLES KOZITZKY, RON BEEGLE, DAVID BABCOCK, and CARL VAN LOON, v. SPX CORPORATION, Case No. 3:14-cv-00656-RJC-DSC (W.D.N.C.), the Hon. Judge Robert J. Conrad, Jr., entered an order that: 1. The Defendant's motion for Summary Judgment is granted; 2. The Plaintiffs' Motion for Partial Summary Judgment is denied; 3. The Plaintiffs' amended complaint is dismissed with prejudice; 4. The Defendant's motions in limine to exclude and motion to strike the reports, opinions, and testimony of Plaintiffs' Expert Michael A. Dunn, are denied as moot; and 5. The Plaintiffs' motion to strike response in opposition to motion and exclude defendant's expert witness report and testimony of Adam Reese is denied as moot. The Court said, "The determinative question in this case is whether SPX has provided the retirees with substantially equivalent benefits to those guaranteed in the original Settlement Agreements. There is "no genuine dispute as to any material fact" on that issue; the Plaintiffs have failed to show that the SPX HRA system does not provide retirees with the contractually-required substantially equivalent benefits under the Settlement Agreements, and Defendant SPX "is entitled to judgment as a matter of law." Furthermore, because the Court did not rely on any expert witness report or opinion in determining summary judgment, the parties' cross motions to exclude and strike expert witness testimony are moot." David Brass, Ron Beegle, David Babcock, Carl Van Loon, Richard Hamilton, and Charles Kozitzky (Plaintiffs or retirees), along with several other retirees who have since been dismissed from this case, filed their Complaint against SPX Corporation on November 25, 2014. The Plaintiffs brought two claims in their Complaint: (1) violation of the settlement agreements under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. section 185; and (2) violation of employee welfare benefit plans under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. section 1132(a)(1)(B). SPX is a supplier of highly engineered infrastructure equipment and technologies. The company operates within four markets: heating, ventilation, and air conditioning, detection and measurement, power transmission and generation, and engineered solutions. A copy of the Court's order dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/2Onf6m0 at no extra charge.[CC] STELVIO TRANSPORT: Faces Johnson Wage-and-Hour Suit in California ----------------------------------------------------------------- COURTNEY JOHNSON, individually and on behalf of all others similarly situated, Plaintiff v. STELVIO TRANSPORT LLC and DOES 1 through 100, inclusive, Defendants, Case No. 37-2021-00006153-CU-OE-CTL (Cal. Super., San Diego Cty., February 10, 2021) is a class action against the Defendants for violations of the California Labor Code and the California Business & Professions Code including unpaid overtime, unpaid meal period premiums, unpaid rest period premiums, unpaid minimum wages, final wages not timely paid, non-compliant wage statements, and unreimbursed business expenses. The Plaintiff was employed by the Defendants as an hourly-paid employee from October of 2017 to February of 2018. Stelvio Transport LLC is a transportation and logistics services company in California. [BN] The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. JUSTICE LAW CORPORATION 751 N. Fair Oaks Avenue, Suite 101 Pasadena, CA 91103 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 SUPER MICRO: Bid to Dismiss NY Trades Council & Hotel Suit Pending ------------------------------------------------------------------ Super Micro Computer, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the motion to dismiss the consolidated putative class action suit headed by the New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund, is pending. On February 8, 2018, two putative class action complaints were filed against the Company, the Company's Chief Executive Officer, and the Company's former Chief Financial Officer in the U.S. District Court for the Northern District of California (Hessefort v. Super Micro Computer, Inc., et al., No. 18-cv-00838 and United Union of Roofers v. Super Micro Computer, Inc., et al., No. 18-cv-00850). The complaints contain similar allegations, claiming that the defendants violated Section 10(b) of the Securities Exchange Act due to alleged misrepresentations and/or omissions in public statements regarding recognition of revenue. The court subsequently appointed New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund as lead plaintiff. The lead plaintiff then filed an amended complaint naming the Company's Senior Vice President of Investor Relations as an additional defendant. On June 21, 2019, the lead plaintiff filed a further amended complaint naming the Company's former Senior Vice President of International Sales, Corporate Secretary, and Director as an additional defendant. On July 26, 2019, the Company filed a motion to dismiss the complaint. On March 23, 2020, the Court granted the Company's motion to dismiss the complaint, with leave for lead plaintiff to file an amended complaint within 30 days. On April 22, 2020, lead plaintiff filed a further amended complaint. On June 15, 2020, the Company filed a motion to dismiss the further amended complaint, the hearing for which was calendared for September 23, 2020; however, the Court held a conference on September 15 to discuss how the Court could efficiently address the recent Securities and Exchange Commission (SEC) settlement agreement. The parties stipulated to allow plaintiffs to further amend the complaint solely to add allegations relating to the SEC settlement. On October 14, 2020, plaintiffs filed a Fourth Amended Complaint. On October 28, 2020, defendants filed a supplemental motion to dismiss. The Court has taken the motion under submission. The Company believes the claims are without merit and intends to vigorously defend against the lawsuit. Super Micro Computer, Inc., together with its subsidiaries, develops and manufactures high-performance server and storage solutions based on modular and open architecture. Its solutions range from complete server, storage, modular blade servers, blades, and workstations to full racks, networking devices, server= management software, server sub-systems, and support and services. It sells its products through direct sales force, distributors, value-added resellers, system integrators, and original equipment manufacturers. The company has operations primarily in the United States, Europe, Asia, and internationally. Super Micro Computer, Inc. was founded in 1993 and is headquartered in San Jose, California. SYMMETRY MANAGEMENT: Class Status Bid Partly Granted in Dunbar Suit ------------------------------------------------------------------- In the class action lawsuit captioned as Dunbar v. Symmetry Management Corp., Case No. 8:19-cv-00715 (M.D. Fla.), the Hon. Judge Charlene Edwards Honeywel entered an order granting in part and denying in part joint motion for class certification and final approval of class action settlement agreement. The motion is denied as to the service award. The suit alleges violation of the Fair Debt Collection Practices Act. Symmetry Management was founded in 1993. The company's line of business includes the practice of general or specialized medicine and surgery for various licensed practitioners.[CC] TIERNO CARE: Castro Seeks Unpaid Wages, Back-Pay Under FLSA, DCMWA ------------------------------------------------------------------ RUTH MELANIE CASTRO, Individually and on Behalf of All Others Similarly Situated v. TIERNO CARE HOME HEALTH AGENCY, INC. D/B/A TIERNO CARE AGENCY; J & S HEALTH CARE, LLC; PROFESSIONAL HEALTHCARE RESOURCES OF WASHINGTON DC, INC.; SONIA COLBERT; and JOSE DOLORES CRUZ ROMERO, Case No. 1:21-cv-00282 (D.D.C., Jan. 29, 2021) is a class and collective action complaint against the Defendants seeking to recover unpaid wages, back-pay, restitution, liquidated damages, reasonable attorney's fees and costs, and all related penalties and damages under the Federal Fair Labor Standards Act, the D.C. Minimum Wage Act Revision Act of 1992, and the D.C. Wage Payment and Collection Law. The Plaintiff contends that the Defendants compensated her and similarly situated employees at their regular hourly rate for all hours they worked, even for the hours worked over 40. She adds that the Defendants maintained records of the hours and rates of pay she and similarly situated aides worked. The Plaintiff and similarly situated employees worked for the Defendants as home health aides. The Defendants are doing business in home healthcare industry. Ms. Sonia Colbert owns and operates Tierno Care Agency. Mr. Jose Dolores Cruz Romero owns and operates J&S Health Care. Sonia Colbert and Jose Dolores Cruz Romero are husband and wife.[BN] The Plaintiff is represented by: Michael K. Amster, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Ave., Suite 400 Silver Spring, MD 20910 Telephone: (301) 587 9373 Facsimile: (240) 839 9142 E-mail: mamster@zagfirm.com TOPNET INC: Jaquez Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against TopNet Inc. The case is styled as Ramon Jaquez, on behalf of himself and all others similarly situated v. TopNet Inc., Case No. 1:21-cv-01249 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. TopNet Inc. -- http://www.topnetinc.com/-- is a fast grow home solution brand in the US, fulfilling consumers' kitchen and home needs with trend forward styling and high-quality products.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com TRACFONE WIRELESS: Jones' Claims Tossed; May Amend Suit by March 5 ------------------------------------------------------------------ The U.S. District Court for the Northern District of California grants the Defendants' motion to dismiss the lawsuit styled ANTONIO JONES, Plaintiff v. TRACFONE WIRELESS, INC., et al., Defendants, Case No. 20-cv-04345-BLF (N.D. Cal.). Plaintiff Jones brings the purported class action complaint against Defendants Tracfone and 20/20 Communications, Inc. for misclassifying him as an independent contractor. Mr. Jones seeks compensation in the form of unpaid wages, unpaid overtime, and uncompensated meal and rest breaks. The Defendants have filed a motion to dismiss. Mr. Jones filed a brief in opposition. They argue that all claims should be dismissed because Mr. Jones has failed to adequately plead an employment relationship with either Defendant. The Court agrees. As a threshold issue, Mr. Jones has failed to plead facts establishing what, exactly, he did for either Defendant, District Judge Beth Labson Freeman holds. There are no facts demonstrating that he was misclassified as an independent contractor. For this reason alone, all of the claims fail. The Court will grant Mr. Jones leave to amend to cure this deficiency in the complaint. Mr. Jones needs to separately plead facts against each Defendant establishing an employment relationship with each Defendant, a relationship between Defendants, and that the conduct underlying the claims is attributable to each Defendant. The Defendants also seek dismissal on Mr. Jones' alternate theory of liability of the Defendants as "client employers" under California Labor Code Section 2810.3. The Court agrees with the Defendants that Mr. Jones failed to provide the requisite 30 days' notice to his alleged client employers as required by Labor Code Section 2801.3. By Mr. Jones' own admission, he provided notice in June 2020, more than three months after he filed his second amended complaint seeking recovery for payment of wages. The Court finds the statute to be clear and unambiguous in requiring notice "prior to filing a civil action" premised on "violations covered by" section 2810.3. Since Mr. Jones did not provide 30 days' pre-suit notice, his claims under Section 2810.3 fail, and because no amendment could cure the notice deficiency, allegations under Section 2810.3 are dismissed with prejudice. As to Mr. Jones' first and second claims for unpaid minimum wage and unpaid overtime, Mr. Jones must plead facts describing his workday and workweek. The current complaint contains no factual allegations establishing that Mr. Jones worked enough hours to qualify for any additional payment. The Court agrees with Mr. Jones that Landers does not require a plaintiff to identify an exact calendar week or a particular instance of denied minimum wage and that the allegations need only give rise to a plausible inference that there was such an instance. The current complaint, though, does not give rise to such an inference. Mr. Jones' third and fourth claims for failure to provide sufficient rest breaks and meal periods also lack a factual basis, and the Court advises Mr. Jones to plead some facts indicating why he was prevented from taking these breaks. Similar additional factual pleadings are needed to establish Mr. Jones' seventh claim for failure to reimburse expenses. Mr. Jones needs to establish facts as to why he incurred expenses that were necessary to his job. His fifth claim (failure to provide accurate wage statements) and sixth claim (waiting time penalties) fail as derivatives of the first four claims. Mr. Jones' eighth claim for violation of California's Unfair Competition Law fails because he has failed to plead that he lacks an adequate remedy at law, Judge Freeman holds. As for Mr. Jones' ninth claim under California's Private Attorneys General Act, it fails as a derivative claim as well. On amendment, Mr. Jones needs to explain who constitutes an aggrieved employee and establish that he has properly exhausted this claim under Cal. Lab. Code Section 2699.3(a)(1) and that it does not violate the one-year statute of limitations under Cal. Civ. Proc. Code Section 340(a). All of Mr. Jones' claims are dismissed with leave to amend except his allegations under California Labor Code Section 2810.3, which are dismissed without leave to amend. Mr. Jones' amended complaint is due no later than March 5, 2021. A full-text copy of the Court's Order dated Feb. 4, 2021, is available at https://tinyurl.com/4l7aiscz from Leagle.com. TRANSAM TRUCKING: Roberts Claims Unpaid Minimum Wages for Drivers ----------------------------------------------------------------- KIRK ROBERTS, JOHN CURTIS, TERRENCE COLVIN-WILLIAMS, REGINALD BRADLEY, DAVID COLEMAN, and CARL McROBERTS JR., on behalf of themselves and all others similarly situated, Plaintiffs v. TRANSAM TRUCKING, INC., Defendant, Case No. 2:21-cv-02073 (D. Kan., February 10, 2021) is a class action against the Defendant for violations of the Fair Labor Standards Act and the Kansas Consumer Protection Act by failing to pay the Plaintiffs and all others similarly situated persons all minimum wages owed to them for attending the Defendant's truck driver orientation and subsequent training. The Plaintiffs attended the Defendant's orientation and worked as lease purchase truck drivers at any time between 2019 and 2020. TransAm Trucking, Inc. is a transportation carrier services company based in Olathe, Kansas. [BN] The Plaintiffs are represented by: Brendan J. Donelon, Esq. DONELON, P.C. 4600 Madison, Ste. 810 Kansas City, MO 64112 Telephone: (816) 221-7100 Facsimile: (816) 709-1044 E-mail: brendan@donelonpc.com - and – Hillary Schwab, Esq. Brant Casavant, Esq. Rachel Smit, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 E-mail: hillary@fairworklaw.com brant@fairworklaw.com rachel@fairworklaw.com TRITERRAS INC: The Klein Law Reminds of February 19 Deadline ------------------------------------------------------------ The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Triterras, Inc., f/k/a Netfin Acquisition Corp. (NASDAQ: TRIT) alleging that the Company violated federal securities laws. Class Period: August 20, 2020 and December 16, 2020 Lead Plaintiff Deadline: February 19, 2021 Learn more about your recoverable losses in TRIT: http://www.kleinstocklaw.com/pslra-1/triterras-inc-f-k-a-netfin-acquisition-corp-loss-submission-form?id=12720&from=5 The filed complaint alleges that Triterras, Inc., f/k/a Netfin Acquisition Corp. made materially false and/or misleading statements and/or failed to disclose that: (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. Shareholders have until February 19, 2021 to petition the court for lead plaintiff status. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. For additional information about the TRIT lawsuit, please contact J. Klein, Esq. by telephone at 212-616-4899 or click the link above. J. Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: J. Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 jk@kleinstocklaw.com Telephone: (212) 616-4899 Fax: (347) 558-9665 www.kleinstocklaw.com [GN] UBER BV: McCarthy Tetrault Attorneys Discuss Class Action Ruling ---------------------------------------------------------------- Kara Smyth, Esq. -- ksmyth@mccarthy.ca -- Dana M Peebles, Esq. -- dpeebles@mccarthy.ca -- Cassidy Thomson, Esq. -- cthomson@mccarthy.ca -- and Carley Frazer, Esq., of McCarthy Tetrault LLP, in an article for Mondaq, report that in a recent data breach class action decision, the Alberta Court of Queen's Bench ("the Court") refused certification, thereby exercising its important gatekeeping function, on the basis that a class action was not a preferable procedure to litigate a matter in which no member of the proposed Class had suffered harm or a loss arising from the breach. In Setoguchi v Uber B.V., the Plaintiff sought certification of a class action on behalf of users whose personal information was accessed during a third party data breach. The decision of the Court denying certification contains careful analysis of the landscape of data breach jurisprudence in Canada, and reflects on the recent emphasis, in Canadian Courts, on proportionality and practicality. Background In late 2016, Uber was attacked by outside actors who accessed the names, telephone numbers and email addresses of a number of users globally (including about 800,000 customers in Canada). Uber paid the outside actors in exchange for an assurance that the data in their hands would be destroyed. In the 4 years between the breach and the certification motion, neither the Plaintiff nor any member of the proposed Class had come forward with proof of an economic loss or psychological harm arising out of the data incident. Key Principles Data breaches are increasingly common in the modern world, and it is no surprise that there has been a corresponding increase in class actions concerning data breaches. The review of the accumulated certification jurisprudence by the Court was therefore timely. In terms of class action principles generally, the Court relied on Andriuk v Merrill Lynch Canada Inc., 2013 ABQB 422[1] in considering the Court's gate-keeping function (an approach also seen in the Supreme Court of Canada's recent holding in Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19, though not cited by the Court). In canvassing the jurisprudence on class actions involving data breaches, the Court cited with approval the Ontario decision in Kaplan v Casino Rama, 2019 ONSC 2025, where certification was denied in circumstances involving disclosure of non-private personal information and risk of future harm. The Court also referred to the Quebec decision in Bourbonniere c Yahoo Inc., 2019 QCCS 264, which found that "the transient embarrassment and inconvenience [arising from a data breach] . . . are of the nature of ordinary annoyance and do not constitute compensable damages." Finally, the Court imported the consideration of proportionality in its preferability analysis, citing Berg v Canadian Hockey League, 2017 ONSC 2608 with references to Hryniak v Mauldin, 2014 SCC 7 [Hyrniak]. Reasoning The Court accepted Uber's argument that the Court should not certify a class action based on mere speculation or potential for future harm; otherwise, all organizations holding data that suffered a breach would be "subject to a class action without any member having to prove harm and regardless of the type of information that is accessed", even non-private personal information.[3] The Court conducted the preferability inquiry through the Hollick[4] lens of the 3 principal advantages of class actions - judicial economy, access to justice and behaviour modification - and emphasized the importance of assessing the litigation as a whole, with a focus on the question of "what is really in issue in the case" (in this case, whether the Plaintiff could establish any compensable loss or harm). With respect to judicial economy, the Court found that it was not clear that the Plaintiff could establish class-wide harm, and that the possibility of future harm could require all class members to resort to individual assessments, particularly in light of Uber's defences. With respect to access to justice, the Court said that, in this case, a class action proceeding would not "serve the interests of access to justice," because the claims, at best, "appear to be nominal damages claims that are 'so small as to be non-existent' -- as I said above, de minimus, or although there is again, no evidence to support same, potentially 'so large as to provide sufficient incentive for individual action'." The theory of behavioural modification was central to the Plaintiff's argument for certification. The Court noted the regulatory punishments already meted out to Uber, and concluded that behaviour modification alone was not, in any event, a basis upon which to certify a class action, emphasizing again the Court's gate keeping function. Ultimately, under the ambit of section 5(1)(d) of the CPA, the Court relied on the principles of proportionality from Hyrniak, its gatekeeper function, and the need to weed out unmeritorious claims to dismiss the certification motion on the basis that a class proceeding was not preferable: [22] . . . In the face of no such evidence [of harm], and in the spirit of Hyrniak . . . , I believe that it is time for the Court to take its gate keeping function seriously, and end this litigation as a class proceeding now, leaving Setoguchi or any other member of the class to pursue a personal action if they so wish. McCarthy Tétrault LLP acted as counsel for Uber with a team led by Kara Smyth, which included Dana Peebles and Cassidy Thomson, together with Uber in-house counsel Ryan MacIsaac. [GN] UGI CORP: Agreement Reached with Indirect Purchaser Plaintiffs -------------------------------------------------------------- UGI Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2021, for the quarterly period ended December 31, 2020, that the Partnership and counsel for the indirect purchaser plaintiffs filed a joint statement with the court that they had reached an agreement in principle to settle the claims of the remaining classes and plaintiffs, subject to court approval. Between May and October of 2014, purported class action lawsuits were filed in multiple jurisdictions against the Partnership/UGI and a competitor by certain of their direct and indirect customers. The class action lawsuits allege, among other things, that the Partnership and its competitor colluded, beginning in 2008, to reduce the fill level of portable propane cylinders from 17 pounds to 15 pounds and combined to persuade their common customer, Walmart Stores, Inc., to accept that fill reduction, resulting in increased cylinder costs to retailers and end-user customers in violation of federal and certain state antitrust laws. The claims seek treble damages, injunctive relief, attorneys' fees and costs on behalf of the putative classes. On October 16, 2014, the United States Judicial Panel on Multidistrict Litigation transferred all of these purported class action cases to the Western Missouri District Court. As the result of rulings on a series of procedural filings, including petitions filed with the Eighth Circuit and the U.S. Supreme Court, both the federal and state law claims of the direct customer plaintiffs and the state law claims of the indirect customer plaintiffs were remanded to the Western Missouri District Court. The decision of the Western Missouri District Court to dismiss the federal antitrust claims of the indirect customer plaintiffs was upheld by the Eighth Circuit. On April 15, 2019, the Western Missouri District Court ruled that it has jurisdiction over the indirect purchasers' state law claims and that the indirect customer plaintiffs have standing to pursue those claims. On August 21, 2019, the District Court partially granted the Company's motion for judgment on the pleadings and dismissed the claims of indirect customer plaintiffs from ten states and the District of Columbia. On October 2, 2019, the Partnership reached an agreement to resolve the claims of the direct purchaser class of plaintiffs; the agreement received final court approval on June 18, 2020. On September 18, 2020, the Partnership and counsel for the indirect purchaser plaintiffs filed a joint statement with the court that they had reached an agreement in principle to settle the claims of the remaining classes and plaintiffs, subject to court approval. No further updates were provided in the Company's SEC report. UGI Corporation distributes, stores, transports, and markets energy products and related services in the United States and internationally. The company operates through four segments: AmeriGas Propane, UGI International, Midstream & Marketing, and UGI Utilities. UGI Corporation was founded in 1882 and is based in King of Prussia, Pennsylvania. ULTRA SHINE: Approval of Collective Action Notice Sought -------------------------------------------------------- In the class action lawsuit captioned as Romel Hernandez v. Ultra Shine Car Wash, Inc., et al., Case No. 7:20-cv-00498-NSR-AEK (S.D.N.Y.), the parties have agreed, as follows: A. Proposed Collective Action Notice to be sent to putative collective action members. B. Proposed Opt-In form. C. Proposed form of Order for the Court. The parties ask the Court to enter the proposed order. According to the letter motion, the parties have met and conferred regarding the content of plaintiff's intended Fair Labor Standards Act (FLSA) collective action documents in this case, and they have reached an agreement on the form of a proposed notice and opt-in form, obviating the need for any motion practice. A copy of the letter motion dated Feb. 3, 2020 is available from PacerMonitor.com at https://bit.ly/2MViDri at no extra charge.[CC] The Plaintiff is represented by: David Stein, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Telephone: (212) 563-9884 Facsimile: (212) 563-9870 Website: www.samuelandstein.com ULTRALIFE CORP: Gains $1,593 in Batteries Antitrust Suit Settlement ------------------------------------------------------------------- Ultralife Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the company has gained $1,593 as an award in the settlement of the class action suit entitled, In Re: Lithium-ion Batteries Antitrust Litigation, 13-MD-02420-YGR. On December 14, 2020, Ultralife was awarded a final settlement of $1,593 (net of fees) upon court approval and order authorizing distribution of settlement funds in a class action lawsuit (In Re: Lithium-ion Batteries Antitrust Litigation, 13-MD-02420-YGR, United States District Court, Northern District of California). At the time of the court order, the settlement funds were held in an escrow account controlled by the court for administrative purposes, and there remained no potential for appeal or reversal of the court order. Based on all conditions present upon the court order, it was concluded that the net settlement amount was fully realizable. Accordingly, a gain of $1,593 was recognized and is separately reported as gain on litigation settlement on the consolidated statement of income and comprehensive income for the year ended December 31, 2020. The corresponding amount due is included in prepaid expenses and other current assets as of December 31, 2020. Ultralife Corporation is a battery, energy and communication product company that serves government, defense and commercial customers. The Company's energy services provides back-up/stationary power services and solutions to the communications, power utility and data processing industries. The battery and energy product segment provides non-rechargeable and rechargeable batteries. The company is based in Newark, New York. UNION PACIFIC: Brasier Suit Alleges Disability Discrimination ------------------------------------------------------------- MARK BRASIER, individually and on behalf of all others similarly situated, Plaintiff v. UNION PACIFIC RAILROAD CO., Defendant, Case No. 4:21-cv-00065-MSA (D. Ariz., February 8, 2021) is a class action against the Defendant for violation of the Americans with Disabilities Act. The case arises from the Defendant's alleged practice of discrimination under the ADA by implementing the Fitness-for-Duty program which required employees in certain positions to disclose specified health conditions even where the condition had no impact on their ability to safely perform their jobs. The Plaintiff was one of the employees who was removed from service after being subjected to a Fitness-for-Duty evaluation under the Defendant's new program and excluded from work at Union Pacific on the basis of his disability, the suit says. Union Pacific Railroad Co. is a railroad carrier headquartered in Omaha, Nebraska. [BN] The Plaintiff is represented by: David E. Schlesinger, Esq. James H. Kaster, Esq. Neil D. Pederson, Esq. NICHOLS KASTER, PLLP 80 South Eighth Street 4700 IDS Center Minneapolis, MN 55402-2242 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 E-mail: schlesinger@nka.com kaster@nka.com npederson@nka.com UNION PACIFIC: Fitness-for-Duty Program Violates ADA, DeFries Says ------------------------------------------------------------------ NICHOLAS DEFRIES, individually and on behalf of all others similarly situated, Plaintiff v. UNION PACIFIC RAILROAD CO., Defendant, Case No. 3:21-cv-00205-SB (D. Or., February 8, 2021) is a class action against the Defendant for violation of the Americans with Disabilities Act. The case arises from the Defendant's alleged practice of discrimination under the ADA by requiring employees in certain positions to disclose specified health conditions under its Fitness-for-Duty program even where the condition had no impact on their ability to safely perform their jobs. The Plaintiff was one of the employees who was removed from service after being subjected to a Fitness-for-Duty evaluation under the Defendant's new program and excluded from work at Union Pacific on the basis of his disability, says the complaint. DeFries was hired by Union Pacific in Oregon in July 2004, and worked as a conductor and brakeman until approximately March 2018 when he was removed from service. Union Pacific Railroad Co. is a railroad carrier headquartered in Omaha, Nebraska. [BN] The Plaintiff is represented by: Anthony S. Petru, Esq. Gavin Barney, Esq. HILDEBRAND MCLEOD & NELSON 250 Frank H. Ogawa Plaza, 4th Floor Oakland, CA 94612 Telephone: (510) 451-6732 E-mail: petru@hmnlaw.com barney@hmnlaw.com - and – James H. Kaster, Esq. Lucas J. Kaster, Esq. NICHOLS KASTER, PLLP 4700 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: kaster@nka.com lkaster@nka.com UNITED AIRLINES: Seventh Cir. Flips Dismissal of White USERRA Suit ------------------------------------------------------------------ In the case, ERIC WHITE, on behalf of himself and others similarly situated, Plaintiff-Appellant v. UNITED AIRLINES, INC. and UNITED CONTINENTAL HOLDINGS, INC., Defendants-Appellees, Case No. 19-2546 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit reversed the judgment of the district court dismissing the Plaintiff's complaint. In 1994, Congress passed the Uniformed Services Employee and Reemployment Rights Act ("USERRA") with the goal of prohibiting civilian employers from discriminating against employees because of their military service. At issue in the case is a matter of first impression in the courts of appeals: Whether USERRA's mandate that military leave be accorded the same "rights and benefits" as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences, such as jury duty and sick leave. The district court answered that question in the negative and dismissed the suit. Mr. White has been employed as a commercial airline pilot since 2005, first for Continental Airlines and then for United Airlines following United's acquisition of Continental in 2010. White has also served as a member of the United States Air Force since 2000, first on active duty and now on reserve duty. As a reservist he is required to attend periodic military-training sessions to remain ready in the event he is called back into active duty. White has taken periods of shortterm military leave, usually for a day or two at a time, during which he did not receive pay from United. Under United's collective bargaining agreement, pilots receive pay when they take other short-term leaves of absence, such as jury duty or sick leave. United also maintains a profit-sharing plan for its pilots. Under the plan, pilots are credited with a share of the company's profit based on the wages they earn over the relevant period. Because these credits are based on wages, pilots who take paid sick leave or paid leave for jury duty earn credit toward their profit-sharing plan, while pilots who take short-term military leave do not. In January 2019, White initiated the class action against United Continental Holdings ("UCH") and its wholly owned subsidiary, United Airlines, Inc. ("UAL") (collectively, "United"), alleging that United's failure to provide paid leave and profit-sharing-plan credit to reservists on military leave denies them "rights and benefits" that are given for comparable, nonmilitary leaves, thereby violating USERRA. The district court dismissed White's complaint. It rejected White's interpretation of the statute because it feared that it would create a de facto universal requirement that private employers pay for military leave, contrary to the settled understanding of the statute. In the alternative, the court held as a matter of law that jury duty and military leave are not comparable for the purposes of USERRA, and so the statute's equal-benefits rule does not apply. It did not reach White's class allegations. White raises three issues on appeal. His first assertion is that the continued receipt of one's wages during a leave of absence qualifies without further ado as one of the "rights and benefits" of employment contemplated by section 4316(b)(1). Next, he argues that United's profit-sharing plan, which credits pilots with a share of the company's profit based on the wages they earn over a relevant period, also falls within the scope of section 4316(b)(1). Finally, he contends that the district court erred in holding as a matter of law that jury duty and military leave are not comparable. United responds with an alternate theory for partial affirmance: It says that the Court must at least dismiss the claims against United Continental Holdings, because UCH is not an "employer" within the meaning of USERRA and so is not a proper Defendant. As a preliminary matter, the Seventh Circuit concludes that White's profitsharing-plan claim rises or falls with his paid-leave claim. Both hinge on whether United's pilots are entitled to their wages while on military leave. It therefore focuses on the question whether paid leave counts as one of the "rights and benefits" of employment under USERRA. White argues that section 4303(2) defines the term "rights and benefits" broadly, and under this definition paid leave--i.e., compensation at the normal rate during a leave of absence--is included. The Seventh Circuit agrees with him. It opines that because the definition of "rights and benefits" under USERRA embraces paid leave, it concludes that the district court erred in dismissing White's paid-leave claim as a matter of law. This also means that White is entitled to move forward with his (and the putative class') profit-sharing claim. Although that is enough to resolve this part of the case, the Appellate Court thinks it appropriate to add a word or two about United's additional, extratextual arguments. United asks the Court to examine how White's interpretation of "rights and benefits" interacts with related provisions of federal law. It asserts that its reading of section 4303(2) conflicts with a pre-USERRA statute that provides federal workers with 15 days of paid military leave per year. The Seventh Circuit has two responses. First, the application of "whole code canons" rests on a shaky foundation. Appeals to consistency with other areas of the U.S. Code--especially different titles of the Code--represent a much greater risk of judicially overriding legislative assumptions and policies, because legislators and their staff are not aware of these canons or do not easily apply them. Second, United exaggerates the inconsistency that exists. USERRA section 4316(b)(1) sets forth an equality principle, not a floor or a cap on benefits. And nothing in section 6323 indicates that it functions as a cap, rather than a floor. There is nothing incompatible between section 6323 and USERRA. Its conclusion that the case was ended prematurely leaves open an important inquiry on remand. At this stage in the litigation, the Seventh Circuit does not have enough information about the frequency and duration of White's military-leave obligations, or those of his fellow reservist pilots, to say much more about this. Discovery may reveal that all, none, or only part of those obligations are comparable to jury duty or sick leave (or other short-term obligations) when assessed with the help of section 1002.150(b). It is a matter to be determined on remand. United raises one last argument for partial affirmance: That White failed plausibly to allege that one of the Defendants--United Continental Holdings--falls within the scope of USERRA. It asks that the suit be dismissed as to UCH, leaving UAL--UCH's wholly owned subsidiary--as the sole Defendant. Although the district court did not address this argument, the Seventh Circuit may consider it because United presented it. In support of dismissal, United cites a number of district court decisions for the proposition that a defendant counts as a USERRA employer only if it has the authority to "hire and fire" the plaintiff, or it has some "control over employment opportunities" or "employment-related responsibilities." White argues that the complaint alleges that UCH has at least some control over employment opportunities at United. The Appellate Court holds that neither White nor United cites to any circuit or Supreme Court precedent concerning this precise question. It concludes, however, that for present purposes White has alleged enough to keep UCH in the case. It offers some preliminary thoughts, but on remand the district court also may wish to consult other statutes in which this issue arises, such as Title VII of the Civil Rights Act of 1964 and the National Labor Relations Act. To be clear, the Appellate Court finds that the presence of common officers for UCH and United alone does not create liability for UCH. But that fact, added to the allegations in the complaint of active participation, may suggest some measure of control for purposes of Section 4303(4)(A). Finally, it notes that White's burden will be higher at later stages in the litigation. Discovery may reveal facts that demonstrate that UCH exercises control over White's employment opportunities, or it may show that UCH's role was purely formal and unrelated to the critical issues. It holds only that White has alleged enough to survive a motion to dismiss UCH. In light of the foregoing, the Seventh Circuit reversed the judgment of the district court. It remanded the case for further proceedings consistent with its Opinion. A full-text copy of the Court's Feb. 3, 2021 Opinion is available at https://tinyurl.com/1o6fnjom from Leagle.com. UNITED STATES: Faces Racial Discrimination Class Action Lawsuit --------------------------------------------------------------- Jamie Satterfield, writing for Knoxville News Sentinel, reports that Isabel Zelaya and his son were busy at work inside a slaughterhouse in Bean Station, Tennessee, when hundreds of black-clad people with guns stormed inside -- shouting racial slurs and ordering at gunpoint all Latino workers to stop moving. Zelaya, legally employed at the slaughterhouse, thought they might be "terrorists." But, as it turned out, they were a mix of federal agents and Tennessee Highway Patrol troopers who turned up in 2018 to raid the Southeastern Provision meatpacking plant in Grainger County. Their behavior -- laid bare in court records -- so shocked Chief U.S. District Judge Travis McDonough that he made a public appeal for the U.S. Supreme Court to lift the shield of immunity granted to federal law enforcement officers. The appeal is part of his latest ruling in a lawsuit about the raid. "The lesson here is that federal agents can avoid accountability for their violations of the Constitution by simply excluding state and local agencies from their next operation," McDonough wrote in a Jan. 31 ruling. "Perhaps a higher court will recognize causes of action that more directly address agents' searches and seizures based on skin color." If the Grainger County raid had been limited to federal agents, Zelaya and his fellow Latino slaughterhouse workers -- seven of whom have filed suit over the raid -- would have no right to seek damages. Federal agents are largely legally immune -- much more so even than local officers who often also enjoy legal protection for bad or brutal behavior. But, simply because the raid also involved state troopers, McDonough opined, the claims are enough to keep some of the lawsuit's legal claims alive and -- eventually -- headed to a jury. "Racial discrimination has a long history in this country," McDonough wrote. "But the federal judiciary is, both by design and blemish, a less-than-perfect institution to address this history. Courts' decisions on such issues have, at times, veiled the nation's original sin with the laudable ideals of judicial deference, separation of powers, and the presence of non-judicial concerns (such as foreign policy and national security). "Notably, of the four claims dismissed here, three are barred not because (the workers) failed to allege illegal conduct, but because the law provides them no pecuniary remedy for violation of their constitutional protections," he continued. "Were it not for THP's involvement, (the workers) would have no access to the only recourse that can matter to them now: damages," the judge wrote. 'You don't have rights here' Knox News has reviewed court records and McDonough's ruling. The following are facts upon which both sides in this court battle largely agree: Zelaya was working with his son on the day of the raid. Without warning, agents and troopers dressed in black and pointing military-style weapons converged on the plant. They yelled at nearly 100 Latino workers using racial slurs and ordered them to stop work and raise their hands. McDonough said the agents never once asked to see identification or proof of immigration status. They ignored all white workers - none of whom were berated, handcuffed or ordered to stay put. The agents even allowed the white workers to smoke outside. When a worker complained the zip ties on his wrists were too tight, an agent responded "he had a problem with workers" because they didn't speak English and told the worker he had no right to "tell him what to do," McDonough wrote. An agent put his booted foot on a Latino worker's head and pointed a gun at him after he fell while being herded outside. When a Latino worker asked if a pregnant co-worker could be allowed to sit down, an agent cursed and told him to "shut his mouth." Another agent told a worker "you don't have rights here" and called him "Mexican (expletive)," McDonough wrote. One worker was punched in the face. When a worker asked to use the restroom, an agent walked him outside, put a gun to his head and told him to "relieve himself right there, in sight of other officers, while staring at his genitals, laughing and cursing at him," the judge wrote. The Latino workers were held handcuffed and at gunpoint inside vans for an hour. An officer "who was tall and overweight and had long blond hair down to his waist took out his phone and yelled, 'Selfie,' while taking a picture of himself with the workers," the opinion stated. Agents continued to berate the Latino workers on the 30-minute ride to the Tennessee National Guard Armory, where they were taken next -- still without any idea why. Officers told the workers to "shut their (expletive mouths) and that they were going back to their (expletive) (expletive) country," court records show. Was the raid a ploy? Zelaya would go free after two hours of detention at the armory when agents confirmed he was a legal migrant worker who had worked at the slaughterhouse for years. Zelaya, though, was one of the lucky ones. Many of his fellow workers were locked up in immigration holding cells to await deportation. A few wound up in jail, charged with a low-level immigration violation known as illegal re-entry -- essentially a law that makes it illegal to cross back into the U.S. once officially deported. Their families were given no information about their whereabouts or why they had been whisked away. But this immigration raid wasn't supposed to be an immigration raid at all, Knox News' review of court records reveals. The Latino workers weren't supposed to be the raid's targets, either, the news organization's review shows. These federal agents had told a federal judge they needed a warrant to get records the slaughterhouse's owner -- 63-year-old James Brantley -- may be hiding. Brantley, the agents promised, was the target, suspected of avoiding taxes. Brantley was at the slaughterhouse during the raid. He wasn't handcuffed or arrested. He eventually admitted dodging $2.5 million in payroll taxes by offering some of a worker's pay in cash. His bank had turned him in to the IRS. He was ordered to prison for 18 months in 2019. He was freed in January from a work camp in Montgomery, Alabama. A contingent of nonprofit immigration attorneys are now representing Zelaya and six of his co-workers in the class-action lawsuit. The U.S. Department of Justice is defending the government. An appeal of McDonough's ruling must be filed within a month. The department has not yet responded to the ruling. [GN] UNIVERSITY OF MICHIGAN: Ex-Pilots Join Sexual Misconduct Case ------------------------------------------------------------- Jasmin Lee, writing for The Michigan Daily, reports that the late University of Michigan athletic doctor Robert Anderson, against whom allegations of sexual misconduct arose last year, has been accused of sexually assaulting a number of pilots, the Associated Press reported on Feb. 6. Anderson was designated by the Federal Aviation Administration as a medical examiner in the southeast Michigan area for nearly 40 years. Anderson was the former team sports physician and worked at the University from 1963 until his retirement in 2003. He passed away in 2008. Multiple sexual misconduct allegations emerged against Anderson following a 2018 letter from a former U-M athlete detailing sexual harassment from Anderson during medical exams in the 1970s. Since then, hundreds of former athletes and students have spoken up about their experiences with Anderson. The University is currently negotiating with Anderson survivors, and one class action lawsuit has been filed representing hundreds of former patients. This class action complaint seeks to prosecute the University on behalf of all survivors. An anonymous former pilot who still lives in Ann Arbor told The Associated Press he received a medical exam from Anderson in 2000 in order to keep his pilot's license. The man said his encounter with Anderson made him wary of visiting him again. "I was only 33; I probably didn't need a prostate exam but I was naive," the pilot said. "He examined my whole body like a dermatologist might. It was very creepy. It was too much. I didn't go back. . . . You're not touching me again." Anderson had his own pay system that was not affiliated with the FAA. When another doctor accused Anderson of violating FAA protocols, Anderson told the FAA he believed in a "complete examination" in a 1973 interview. "A few have left me because they have desired less of a physical exam than I am willing to give," Anderson said. Former military pilot J.P. Descamp, one of the first victims to speak out against Anderson, said in a March 2020 press conference he was sent to Anderson by his employer, General Motors, in 1973 for a standard physical exam to continue his flight duties. "I don't wish to go any further with graphic details, but suffice to say, the continued probing, stimulation and painful testicular examination left me in a state of feeling highly vulnerable and taken advantage of," DesCamp said. Those representing the University and the lawyers bringing the class action suit are currently in mediation. This stage began in October and could take months to complete. Daily News Editor Jasmin Lee can be reached at itsshlee@umich.edu [GN] UNLIMITED CARRIER: Roberson Suit Seeks Unpaid Wages for Drivers --------------------------------------------------------------- JEFFERY ROBERSON, individually and on behalf of all others similarly situated, Plaintiff v. UNLIMITED CARRIER, INC., AGLE EXPRESS, INC., SVAJUNAS MASIULIONIS, and ARNOLDAS BLINSTRUBAS, Defendants, Case No. 1:21-cv-00742 (N.D. Ill., February 9, 2021) is a class action against the Defendants for violations of the Illinois Wage Payment and Collection Act and breach of contract by failing to pay all wages earned, taking unlawful wage deductions, and failing to reimburse business expenses. Mr. Roberson is a former over-the-road driver for Unlimited Carrier between May 2019 and July 2020. Unlimited Carrier, Inc. is a freight delivery services company headquartered in Bolingbrook, Illinois. AGLE Express, Inc. is a tractor leasing services company headquartered Homer Glen, Illinois. [BN] The Plaintiff is represented by: Bradley Manewith, Esq. Marc J. Siegel, Esq. James D. Rogers, Esq. SIEGEL & DOLAN LTD. 150 North Wacker, Suite 3000 Chicago, IL 60606 Telephone: (312) 878-3210 Facsimile: (312) 878-3211 E-mail: msiegel@msiegellaw.com banewith@msiegellaw.com - and – Hillary Schwab, Esq. Rachel Smit, Esq. Brant Casavant, Esq. FAIR WORK P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 Facsimile: (617) 488-2261 E-mail: hillary@fairworklaw.com rachel@fairworklaw.com UPS STORE: Shavers Consumer Class Suit Removed to N.D. Illinois --------------------------------------------------------------- The case styled REBA SHAVERS, individually and on behalf of all others similarly situated v. THE UPS STORE, INC.; GENERATION I. LLC, d/b/a UPS Store #7181 in its own right and as a representative of a class similarly situated UPS Store franchisees; and JOHN DOES 1–200, Case No. 2020-CH-05119, was removed from the Illinois Circuit Court of Cook County to the U.S. District Court for the Northern District of Illinois on February 8, 2021. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:21-cv-00720 to the proceeding. The case arises from the Defendant's alleged violations of the Illinois Notary Public Act and the Illinois Consumer Fraud Act, as well as for unjust enrichment and civil conspiracy. The UPS Store, Inc. is a franchisor of retail shipping, postal, printing and business service centers, headquartered in San Diego, California. [BN] The Defendants are represented by: John C. Ellis, Esq. ELLIS LEGAL P.C. 200 W. Madison St., Suite 2670 Chicago, IL 60606 Telephone: (312) 967-7629 E-mail: jellis@ellislegal.com USA TECHNOLOGIES: Purchasers Class Action Suit in PA Concluded -------------------------------------------------------------- USA Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the consolidated purchasers class action suit in the United States District Court for the Eastern District of Pennsylvania, with Docket No. 19-cv-04565, has been concluded. On September 11, 2018, Stephane Gouet filed a putative class action complaint against the Company, Stephen P. Herbert, the then-current Chief Executive Officer, and Priyanka Singh, the then-current Chief Financial Officer, in the United States District Court for the District of New Jersey. The class was defined as purchasers of the Company's securities from November 9, 2017 through September 11, 2018. The complaint alleged that the Company disclosed on September 11, 2018 that it was unable to timely file its Annual Report on Form 10-K for the fiscal year ended June 30, 2018 (the "2018 Form 10-K"), and that the Audit Committee of the Company's Board of Directors was in the process of conducting an internal investigation of current and prior period matters relating to certain of the Company's contractual arrangements, including the accounting treatment, financial reporting and internal controls related to such arrangements. The complaint alleged that the defendants disseminated false statements and failed to disclose material facts and engaged in practices that operated as a fraud or deceit upon Gouet and others similarly situated in connection with their purchases of the Company's securities during the proposed class period. The complaint alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Two additional class action complaints, containing substantially the same factual allegations and legal claims, were filed against the Company, Herbert and Singh in the United States District Court for the District of New Jersey. On September 13, 2018, David Gray filed a putative class action complaint, and on October 3, 2018, Anthony E. Phillips filed a putative class action complaint. Subsequently, multiple shareholders moved to be appointed lead plaintiff, and on December 19, 2018, the Court consolidated the three actions, appointed a lead plaintiff, and appointed lead counsel for the consolidated actions. On February 28, 2019, the Court approved a Stipulation agreed to by the parties in the Consolidated Action for the filing of an amended complaint within fourteen days after the Company filed its 2018 Form 10-K. On January 22, 2019, the Company and Herbert filed a motion to transfer the Consolidated Action to the United States District Court for the Eastern District of Pennsylvania. On February 5, 2019, the Lead Plaintiff filed its opposition to the Motion to Transfer. On August 12, 2019, the University of Puerto Rico Retirement System (UPR) filed a putative class action complaint in the United States District Court for the District of New Jersey against the Company, Herbert, Singh, the Company's Directors at the relevant time (Steven D. Barnhart, Joel Books, Robert L. Metzger, Albin F. Moschner, William J. Reilly and William J. Schoch) (the Independent Directors), and the investment banking firms who acted as underwriters for the May 2018 follow-on public offering of the Company: William Blair & Company; LLC; Craig-Hallum Capital Group, LLC; Northland Securities, Inc.; and Barrington Research Associates, Inc. (the Underwriters). The class was defined as purchasers of the Company's shares pursuant to the registration statement and prospectus issued in connection with the Public Offering. Plaintiff sought to recover damages caused by Defendants' alleged violations of the Securities Act of 1933, and specifically Sections 11, 12 and 15 thereof. The complaint generally sought compensatory damages, rescissory damages and attorneys' fees and costs. The UPR complaint was consolidated into the Consolidated Action and the UPR docket was closed. On September 30, 2019, the Court granted the motion to transfer and transferred the Consolidated Action to the United States District Court for the Eastern District of Pennsylvania, Docket No. 19-cv-04565. On November 20, 2019, Plaintiff filed an amended complaint that asserted claims under both the 1933 Act and the 1934 Act. Defendants filed motions to dismiss on February 3, 2020. Before briefing on the motions was completed, the parties participated in a private mediation on February 27, 2020, which ultimately resulted in a settlement. On May 29, 2020, the plaintiffs filed documents with the Court seeking preliminary approval of the settlement, with the defendants supporting approval of the settlement. On June 9, 2020, the Court granted preliminary approval of the settlement and issued a scheduling order for further action on the settlement. The settlement provides for a payment of $15.3 million which includes all administrative costs and plaintiffs' attorneys' fees and expenses. The Company's insurance carriers paid approximately $12.7 million towards the settlement and the Company paid approximately $2.6 million towards the settlement. The settlement payments were deposited into an escrow account in July 2020. Only one putative class member submitted an objection to the settlement. On October 30, 2020, the Court held a hearing on the motion for final settlement approval and granted approval. Under the settlement, payment of plaintiffs' counsel's fees and expenses may be distributed within three business days of approval (subject to being returned if the settlement is reversed based on any appeal). The deadline for filing an appeal has now passed, so final settlement approval order is no longer at risk of being reversed or revised on appeal and this action is completed. USA Technologies, Inc. provides wireless networking, cashless transactions, asset monitoring, and other value-added services in the United States and internationally. USA Technologies, Inc. was founded in 1992 and is headquartered in Malvern, Pennsylvania. USA TECHNOLOGIES: Shareholder Suit in Chester County Court Stayed ----------------------------------------------------------------- USA Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2021, for the quarterly period ended December 31, 2020, that the shareholder class action suit in the Court of Common Pleas, Chester County, Pennsylvania, remains stayed. A putative shareholder class action complaint was filed against the Company, its chief executive officer and chief financial officer at the relevant time, its directors at the relevant time, and the Underwriters, in the Court of Common Pleas, Chester County, Pennsylvania, Docket No. 2019-04821-MJ. The complaint alleged violations of the 1933 Act. As also previously reported, on September 20, 2019 the Court granted the defendants' Petition for Stay and stayed the Chester County action until the Consolidated Action reaches a final disposition. On October 18, 2019, plaintiff filed an appeal to the Pennsylvania Superior Court from the Order granting defendants' Petition for Stay, Docket No. 3100 EDA 2019. On December 6, 2019, the Pennsylvania Superior Court issued an Order stating that the Stay Order does not appear to be final or otherwise appealable and directed plaintiff to show cause as to the basis of the Pennsylvania Superior Court's jurisdiction. The plaintiff filed a Response to the Order to Show Cause on December 16, 2019, and the defendants filed an Application to Quash Appeal on December 26, 2019. On February 20, 2020, the Pennsylvania Superior Court quashed the appeal. This action has remained stayed pending final disposition of the Consolidated Action. The Company expects that this action will be dismissed, but there can be no guarantee as to the outcome. USA Technologies, Inc. provides wireless networking, cashless transactions, asset monitoring, and other value-added services in the United States and internationally. USA Technologies, Inc. was founded in 1992 and is headquartered in Malvern, Pennsylvania. VMS DATA: Rojas Sues Over Unpaid Overtime for Sales Associates -------------------------------------------------------------- HENRY ROJAS, individually and on behalf of all others similarly situated, Plaintiff v. VMS DATA, LLC, GERALD ANDREW GILBY and JANE DOE GILBY, Defendants, Case No. 2:21-cv-00220-SMB (D. Ariz., February 9, 2021) is a class action against the Defendants for violations of the Fair Labor Standards Act by failing to compensate the Plaintiff and all others similarly situated inside sales associates overtime pay for all hours worked in excess of 40 hours in a workweek. Mr. Rojas was employed as inside sales associate by the Defendants from approximately September 1, 2016 through approximately December 31, 2019. VMS Data, LLC is an Internet marketing service provider based in Phoenix, Arizona. [BN] The Plaintiff is represented by: Clifford P. Bendau, II, Esq. Christopher J. Bendau, Esq. BENDAU & BENDAU PLLC P.O. Box 97066 Phoenix, AZ 85018 Telephone: (480) 382-5176 Facsimile: (480) 304-3805 E-mail: cliffordbendau@bendaulaw.com chris@bendaulaw.com WALGREENS BOOTS: Court Tosses 1st Amended Complaint in Smith Suit ----------------------------------------------------------------- In the case, SUSAN SMITH, Plaintiff v. WALGREENS BOOTS ALLIANCE, INC., et al., Defendants, Case No. 20-cv-05451-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted Costco's Motion to Dismiss the first amended complaint, and Walgreens' Motions to Dismiss the FAC. Before the Court is a putative class action brought on behalf of chronic pain patients against two sets of pharmacies in connection with the pharmacies' distribution of opioid drugs. The case is a companion to City and County of San Francisco, et al. v. Purdue Pharma L.P., et al., No. 3:18-cv-07591-CRB. In Purdue, the Court held that the Controlled Substances Act ("CSA") imposes a duty upon distributors of opioids to "identify, report, and refrain" from filling suspicious opioid orders. The Court found that entities in the opioids stream-of-commerce are obligated to "provide effective controls and procedures to guard against theft and diversion of controlled substances." The Purdue litigation seeks to hold opioids manufacturers and distributors accountable for not doing enough to stem the illicit opioids economy. In the instant case, the Plaintiff argues that Walgreens Boots Alliance, Inc. ("WBA"), WAGDCO, LLC ("WAGDCO"), Costco Wholesale Corp., and Does 1-10, have gone too far in their efforts to prevent the unlawful sale of opioids. The Plaintiff alleges that the Defendants have indeed violated federal discrimination statutes and California law by interfering with the class' access to opioids. It is by now well-known that the United States has been suffering from an opioid crisis for decades. Toward the mid-2000s, public health officials became alarmed by increasing opioid fatalities, setting off a chain reaction in public health policy, government enforcement actions, and civil litigation. Simultaneously, the United States has been dealing with another crisis: the chronic pain epidemic. According to the Centers for Disease Control ("CDC"), in 2016 alone, an estimated 50 million Americans suffered from chronic pain. In addition to high levels of daily pain, people with chronic pain often suffer from depression and anxiety and commit suicide at a higher rate than the general population. In the 2010s, the CDC and the American Medical Association ("AMA") each began to publish guidelines around properly prescribing opioids. CDC Guideline Recommendations 5 and 6 (issued in 2016) are particularly relevant in the case. Later, both the CDC and the AMA would disavow these 2016 Opioid Prescribing Guidelines, acknowledging they have led to poor outcomes for certain patients in need of opioid medication. Named Plaintiff Smith is one of these patients. The Plaintiff filed a putative class action on Aug. 6, 2020, alleging that the prescription fulfillment practices of Walgreens and Costco discriminate on the basis of disability. Mrs. Smith does not believe that she is alone. She seeks to represent a class of similarly situated individuals also allegedly harmed by pharmacists at Walgreens and Costco. The putative class consists of persons: Who were issued prescriptions for opioid medication by a licensed medical provider as part of medical treatment for (i) chronic pain, defined as pain lasting 3 or more months, from any cause, (ii) pain associated with a cancer diagnosis or treatment, (iii) palliative or nursing home care or (iv) sickle cell anemia and were either (a) unable to get any such prescription(s) filled, (b) unable to get any such prescription(s) filled as written, (c) required to submit non-opioid prescriptions or purchase other products in conjunction with their opioid prescription(s) or (d) told that their prescriptions for opioid medication would no longer be filled or no longer be filled as written at any pharmacy owned, controlled and/or operated by the Defendants in The United States. On Sept. 14, 2020, the Plaintiff filed her FAC, bringing suit under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Anti-Discrimination Provisions of the Affordable Care Act, the Unruh Civil Rights Act, and California's Unfair Competition Law. In response, on Nov. 20, 2020, the Defendants filed three motions to dismiss: (1) a motion to dismiss for lack of personal jurisdiction filed by WBA; (2) a motion to dismiss for failure to state a claim filed by Walgreens; and (3) a motion to dismiss for failure to state a claim and for lack of Article III standing filed by Costco. The Plaintiff filed individual responses to each; and the Defendants filed their replies roughly two weeks later. The Court held a hearing on the motions to dismiss on Jan. 28, 2021. To bolster her claim, the Plaintiff argues that Walgreens' alleged policy only applies to disabled persons. But, based on the FAC, it is not clear that either of the groups who fill opioid prescriptions at the Defendants' pharmacies—chronic pain prescribers and acute pain prescribers -- are "disabled" under federal law. At best, then, the Plaintiff has alleged the at-issue policies apply to both non-disabled (acute pain prescribers) and disabled groups (chronic pain prescribers) alike (i.e., they are "facially neutral" policies). The Plaintiff is left leaning on two theories of discrimination: (1) a disparate impact theory that proceeds under the "meaningful access" standard espoused in Alexander v. Choate, 469 U.S. 287, 308-09 (1985); and (2) a "reasonable accommodation" theory brought under the ADA. She has not stated a claim for relief under either theory. After careful consideration of the parties' filings and oral arguments, and the applicable law, Judge Breyer concludes that the FAC is riddled with contradictions and inadequacies. Given the facts alleged, it is uncertain at this stage whether the putative class itself is "disabled" under federal law. Moreover, only one policy allegation could possibly constitute discrimination under federal law under a disparate impact or reasonable accommodation theory: Walgreens' alleged "dose and duration" restriction. However, even this single suspect policy allegation appears implausible based on the facts pled in the FAC. There being no possibility of discrimination based on the alleged policy of declining to sell opioids, Judge Breyer granted Costco's Motion to Dismiss, and the claims against Costco are dismissed with prejudice. Walgreens' Motions to Dismiss are also granted, and the claims against Walgreens are dismissed without prejudice. The Plaintiff may amend the FAC within 30 days of the order, if she wishes to do so, to address the deficiencies as to (1) a disparate impact basis for lack of meaningful access and (2) a reasonable accommodation theory only. At this point, Judge Breyer will not address the outstanding jurisdictional arguments regarding jurisdiction contained in WBA's Motion to Dismiss. In the event that the Plaintiff amends the FAC to state a plausible claim of discrimination against Walgreens, he will address WBA's jurisdictional arguments at that time. A full-text copy of the Court's Feb. 3, 2021 Order is available at https://tinyurl.com/2832hrja from Leagle.com. WASHINGTON BULB: Williams Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Washington Bulb Company, Inc. The case is styled as Milton Williams, on behalf of himself and all other persons similarly situated v. Washington Bulb Company, Inc., Case No. 1:21-cv-01262 (S.D.N.Y., Feb. 11, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Washington Bulb Co., Inc. -- https://www.tulips.com/ -- is one of the largest domestic growers of cut tulips, daffodils, iris and lilies flowers and their bulbs, located in Mount Vernon, Washington.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite Phr New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal WEST TOWN: Somervlele Suit Gets Class, Subclasses Certification --------------------------------------------------------------- In the class action lawsuit captioned as JOSEPH AND KAREN SOMERVLELE, et al., v. WEST TOWN BANK & TRUST, Case No. 8:19-cv-00490-PJM D (D. Md.), the Hon. Judge Peter Messitte entered an order: 1. granting the Plaintiffs' motion for class certification: -- The following West Town Class and Racketeer Influenced and Corrupt Organizations Act (RICO) and Real Estate Settlement Procedures Act (RESPA) Subclasses are certified under Rule of the Federal Rules of Civil Procedure: "all individuals in the United States who were borrowers on a mortgage loan obtained from West Town Bank & Trust, a/k/a West Town Savings Bank, for which All Star Title, Inc. provided a settlement service, as identified in Section 1100 on the borrower’s HUD-1, between January 1, 2010 and December 31, 2015;" Exempted from this class is any person who, during the period of January 1, 2010 through December 31, 2015, was an employee, officer, member and/or agent of West Town Bank & Trust, a/k/a West Town Savings Bank., or All Star Title, Inc; -- The RICO Subclass is comprised of all members of the West Town Class. -- The RESPA Subclass is comprised of all members of the West Town Class who were borrowers on a federally related mortgage loan (as defined under the Real Estate Settlement Procedures Act, 12 U.S.C. section 2602) between January 1, 2010 and December 31, 2015. 2. appointing the Plaintiffs John and Karen Somerville as representatives of the West Town Class, RICO Subclass, and RESPA Subclass; 3. appointing the Plaintiff Randolph Whitley as representative of the West Town Class, RICO Subclass, and RESPA Subclass; 4. appointing the Plaintiffs Mark and Susan Kline as representatives of the West Town Class, RICO Subclass, and RESPA Subclass; 5. appointing the Plaintiffs David and Janie McCranie as representatives of the West Town Class, RICO Subclass, and RESPA Subclass; 6. appointing Michael Smith and Melissa English, of Smith Gildea & Schmidt LLC, and Timothy Maloney and Veronica Nannis, of Joseph, Greenwald & Laake PA, as Class Counsel; and 7. directing the parties to confer and submit to the Court a proposed form of Notice to the Class no later than 30 days from entry of this Order. West Town Bank offers a variety of financial services including checking, savings, loans and mortgages. A copy of the Court's order dated Feb. 4, 2020 is available from PacerMonitor.com at https://bit.ly/2ZaJbYg at no extra charge.[CC] WESTCHESTER PARKWAY: Fails to Pay Nurses' Proper Wages, Edgar Says ------------------------------------------------------------------ JAMES EDGAR, individually and on behalf of all others similarly situated, Plaintiff v. WESTCHESTER PARKWAY CONSULTING LLC dba SOLIVITA HEALTH; CROCKER ROAD CONSULTING LLC dba SOLIVITA HEALTH; PGN OP SUMMIT LLC; PGN OP PARK LLC; PGN OP OAK LLC; PGN OP ECHO LLC; PGN MGMT SUMMIT LLC; PGN MGMT PARK LLC; PGN MGMT OAK LLC; PGN MGMT ECHO LLC; JOHN DOE CORPORATIONS 1-10, Defendants, Case No. 2:21-cv-00533-MHW-KAJ (S.D. Ohio, Feb. 4, 2021) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Edgar was employed by the Defendants as nurse. Westchester Parkway Consulting LLC dba Solivita Health provides health care services. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N, Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com WHOLE FOODS: Claims in Campbell First Amended Complaint Narrowed ---------------------------------------------------------------- In the class action lawsuit captioned as CHANDRA CAMPBELL, individually and on behalf of all others similarly situated, v. WHOLE FOODS MARKET GROUP, INC., Case No. 1:20-cv-01291-GHW-OTW (S.D.N.Y.), the Hon. Judge Gregory H. Woods entered an order granting in part and denying in part the Defendant's motion to dismiss the First Amended Complaint as follows: -- The Defendant's motion to dismiss the Plaintiff's claims under Sections 349 and 350 of the GBL is denied; -- The Defendant's motion to dismiss all other claims is granted; -- The Plaintiff lacks standing to pursue injunctive relief on behalf of herself or the putative class, so Defendant's motion to dismiss her request for injunctive relief is also granted; -- The Plaintiff is granted leave to replead the claims that have been dismissed by the Court; and -- Any amended complaint must be filed no later than twenty- one days from the date of this order. The Plaintiff Chandra Campbell bought a box of honey graham crackers at Whole Foods. Ms. Campbell knew something that some customers buying graham crackers may not -- "graham" refers to a type of whole-wheat flour. So when she saw a box at Whole Foods touting "Honey Graham Crackers," she understood that the crackers were made mostly of healthy whole-wheat flour, rather than regular white or "refined" flour. And she thought that they were sweetened predominantly with wholesome natural honey, rather than sugar or some other sweetener. But they are not. Ms. Campbell alleges that she was deceived by the product's packaging (notwithstanding the fact that the ingredient label accurately described the crackers' content). She brings this lawsuit as a result. Whole Foods "manufactures, distributes, markets, labels and sells graham crackers." The packaging for the product describes the product in a number of ways that Plaintiff alleges to be deceptive. A copy of the Court's order dated Feb. 2, 2020 is available from PacerMonitor.com at https://bit.ly/3d3FxaI at no extra charge.[CC] WILMINGTON SAVINGS: Antonio Sues Over Car Repossession Practices ---------------------------------------------------------------- JOHANNA L. ANTONIO, individually and on behalf of all others similarly situated v. WILMINGTON SAVINGS FUND SOCIETY, FSB, successor-by-merger to Beneficial Bank, d/b/a WSFS, Case No. 210200301 (Pa. Com. Pleas Ct., Feb. 2, 2021), is a consumer class action brought against a bank to redress repossession practices of the Defendant. According to the complaint, when the Defendant believes that a consumer has defaulted on a secured vehicle loan, it repossesses and then resells the vehicle. In the course of so doing, the Defendant failed to adhere to the requirements of Pennsylvania law. Defendant WSFS is the vehicle lender or assignee of multiple Retail Installment Contracts or motor vehicle loans with Pennsylvania consumers, including financing acquired by virtue of the merger of Beneficial Bank with and into WSFS. WSFS, individually and as the successor-by-merger to Beneficial Bank, is the holder of the Retail Installment Sales Contracts or consumer motor vehicle loans at issue in this Complaint, and is responsible for the alleged action and/or inaction of Beneficial Bank. The Plaintiff is a consumer and an adult individual who resides at 2 Diamond Court, Pottstown, Pennsylvania. According to the complaint, on October 25, 2013, the Plaintiff purchased and financed a used 2012 Mazda from a car dealer. The transaction is reflected in a Motor Vehicle Retail Installment Sale Contract (RISC). The purchase was financed through Beneficial, who took a security interest in the vehicle. Under the RISC, regularly monthly payments were to be made to Beneficial. The Plaintiff fell behind in her payments to Beneficial. In October 2015, Beneficial declared a default. On October 16, 2015, Beneficial, as the lender and secured party, repossessed the Plaintiff's automobile, or ordered it to be repossessed. WSFS is Delaware financial institution that regularly does business in Pennsylvania, and is registered with and licensed by the Pennsylvania Department of Banking. WSFS is the successor-by-merger to Beneficial Bank which merged with and into WSFS on or about March 1, 2019 by virtue of a merger agreement. As such, the assets and liabilities of Beneficial -- including the Retail Installment Sales Contracts and consumer auto loans at issue in this case and the benefits and liabilities therefrom -- were acquired by WSFS.[BN] The Plaintiff is represented by: Cary L. Flitter, Esq. Andrew M. Milz, Esq. Jody Thomas Lopez-Jacobs, Esq. FLITTER MILZ, P.C. 450 North Narberth Avenue, Suite 101 Narberth, PA 19072 Telephone: (610) 822-0782 WILMINGTON SAVINGS: Marvastian Sues Over Debt Collection Practices ------------------------------------------------------------------ SEYED MARVASTIAN, Individually and on behalf others similarly situated v. WILMINGTON SAVINGS FUND SOCIETY, FSB AS TRUSTEE FOR HILLDALE TRUST, Case No. 8:21-cv-00257-PJM (D. Md., Jan. 29, 2021) seeks to secure redress for Hilldale's course of conduct that included: i. entering into an agreement(s) with a debt collector and collection agency Dyck-O'Neal ("DONI"), Incorporated to purportedly assign consumer debts, including Marvastian's purported consumer debt, to DONI unconditionally but in fact Hilldale retains undisclosed ownership rights to the debts which are unfairly and unconscionably concealed from consumers subject to the purported debts; and ii. claiming to others that Marvastian and others similarly situated owed sums of money to them in assignments of consumer debts which were not owed. The Defendant's conduct subject to this action violates the Fair Debt Collection Practices Act. The Plaintiffs contends that Hilldale's pattern, practices, acts, and omissions has wrongfully infected his remedial rights and that of similarly situated persons and caused injury them. Plaintiff Marvastian is an individual who is a resident of and is domiciled in the State of Maryland. Marvastian used to be the owner of the real property known as 7809 Bradly Blvd., Bethesda, Maryland 20817 (Former Marvastian Property) but lost that home to foreclosure in an action in the Circuit Court for Montgomery County, Maryland (i.e. Case No. 396663V). When he acquired the Former Marvastian Property, Marvastian borrowed a sum of money from a now-defunct mortgage lender Freedom Mortgage Funding, Inc. ("Former Marvastian Loan") and used the proceeds for personal, consumer purposes to acquire the Former Marvastian Property. Hilldale is a statutory trust formed under the laws of the State of Delaware for the specific purpose of acquiring defaulted consumer debts from others. Wilmington Savings Fund Society, FSB acts as a trustee of Hilldale but does not control or manage Hilldale whatsoever and Hilldale is controlled, the complaint says.[BN] The Plaintiff is represented by: Phillip R. Robinson, Esq. CONSUMER LAW CENTER LLC 8737 Colesville Road, Suite 308 Silver Spring, MD 20910 Telephone: (301) 448-1304 E-mail: phillip@marylandconsumer.com WILSHIRE ROYALE: Garcia Sues Over Hotel Booking's Violation of ADA ------------------------------------------------------------------ ORLANDO GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. WILSHIRE ROYALE HOTEL and DOES 1-10, Defendant, Case No. 21BBCV00115 (Cal. Super., Los Angeles Cty., February 8, 2021) is a class action against the Defendant for violations of the Americans with Disabilities Act and the Unruh Civil Rights Act. The case arises from the Defendant's failure to provide information about the accessible features in the rooms at the Coast Anabelle Hotel on its reservation Website at https://coastanabelle.com/ for people with disabilities, including the Plaintiff. The Website reservation system lacks sufficient information needed by disabled travelers to assess independently whether a given hotel room would work for them. As a result, the Plaintiff is unable to engage in an online booking of the hotel room with any confidence or knowledge about whether the room will actually work for him due to his disability, the suit says. Wilshire Royale Hotel is an owner and operator of the Coast Anabelle Hotel located at 2011 W. Olive Ave., Burbank, California. [BN] The Plaintiff is represented by: Raymond Ballister Jr., Esq. Russell Handy, Esq. Amanda Seabock, Esq. Zachary Best, Esq. CENTER FOR DISABILITY ACCESS 8033 Linda Vista Road, Suite 200 San Diego, CA 92111 Telephone: (858) 375-7385 Facsimile: (888) 422-5191 E-mail: amandas@potterhandy.com WORLD WRESTLING: Awaits Preliminary Approval of Settlement ---------------------------------------------------------- World Wrestling Entertainment, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the parties in Firefighters' Pension System of the City of Kansas City, Missouri suit, awaits the court's approval on the lead plaintiffs unopposed motion for preliminary approval of settlement with the Court. On March 6, 2020, the Company along with its Chairman and CEO, Vince McMahon, and former-WWE officers and directors, Michelle Wilson and George Barrios (collectively, the "Individual Defendants"), were sued in the U.S. District Court for the Southern District of New York in a case captioned City of Warren Police and Fire Retirement System, individually and on behalf of all others similarly situated, v. World Wrestling Entertainment, Inc., Vincent K. McMahon, George A. Barrios, and Michelle D. Wilson, No. 1:20-cv-02031-JSR. The complaint alleges that the Company and the Individual Defendants made materially false and misleading statements in violation of the Securities Exchange Act of 1934 regarding WWE's strategic relationship with the Kingdom of Saudi Arabia. Specifically, the complaint alleges that various public statements made by the Company and the Individual Defendants were false and misleading because they failed to disclose certain adverse facts regarding WWE's strategic relationship with Saudi Arabia that supposedly was known by them and, as a result, the plaintiff class allegedly purchased WWE stock at artificially inflated prices. On March 12, 2020 a nearly-identical lawsuit was filed in the U.S. District Court for the Southern District of New York captioned Paul Szaniawski, individually and on behalf of all others similarly situated, v. World Wrestling Entertainment, Inc., Vincent K. McMahon, George A. Barrios, and Michelle D. Wilson, No. 1:20-cv-02223-JSR. This lawsuit was filed as related to the City of Warren case and was assigned to the same judge handling the City of Warren case. By Order dated May 12, 2020, the City of Warren and Szaniawski lawsuits were consolidated for all purposes. After multiple parties filed motions to be appointed lead plaintiff for the putative class in the consolidated action, on May 22, 2020, the Court issued a memorandum order selecting the Firefighters' Pension System of the City of Kansas City, Missouri to be lead plaintiff and their attorneys, Labaton Sucharow LLP, to be lead counsel for the putative class. On May 26, 2020, the Company served Rule 11 motion for sanctions on the attorneys for the City of Warren Police and Fire Retirement System, the attorneys for Paul Szaniawski, and Labaton Sucharow LLP. The Rule 11 motion identified false allegations in the originally filed complaints and was supported by six declarations from Company executives and third-parties with direct first-hand knowledge of the matters at issue. Following service of the Rule 11 motion, the attorneys for the City of Warren Police and Fire Retirement System and the attorneys for Paul Szaniawski voluntarily dismissed their complaints before the expiration of the Rule 11 safe-harbor period. On June 8, 2020, the Firefighters' Pension System of the City of Kansas City, Missouri filed a consolidated amended class action complaint. On June 26, 2020, the Company moved to dismiss the consolidated amended complaint in its entirety. The Court held oral argument on the Company's motion to dismiss on July 30, 2020. On August 6, 2020, the Court denied the Company's motion to dismiss. On August 19, 2020, the Court issued a case management plan that, among other things, scheduled this case to be trial ready on February 22, 2021. On November 18, 2020, the Company entered into a term sheet to settle this action, subject to notice to the class and preliminary and final approval by the Court. The settlement will include a full release of all Defendants in connection with the allegations made in the lawsuit, and will not contain any admission of liability or admission as to the validity or truth of any or all allegations or claims by any of the Defendants. The Term Sheet provides for a settlement payment, subject to Court approval, of $39,000 (inclusive of all Plaintiffs' attorneys fees and expenses and settlement costs), all of which the Company expects will be paid by the Company's insurance carriers. The Company believes that resolving the matter is the right business decision and that it is prudent to end the protracted and uncertain class action process. On December 23, 2020, lead plaintiff filed an unopposed motion for preliminary approval of the settlement with the Court. World Wrestling Entertainment, Inc., an integrated media and entertainment company, engages in the sports entertainment business in North America, Europe, the Middle East, Africa, the Asia Pacific, and Latin America. It operates in three segments: Media, Live Events, and Consumer Products. The company was founded in 1980 and is headquartered in Stamford, Connecticut. WORLD WRESTLING: Continues to Defend Wrestlers' Class Suits ----------------------------------------------------------- World Wrestling Entertainment, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2021, for the fiscal year ended December 31, 2020, that the company continues to defend several class action suits initiated by its wrestlers. On October 23, 2014, a lawsuit was filed in the U. S. District Court for the District of Oregon, entitled William Albert Haynes III, on behalf of himself and others similarly situated, v. World Wrestling Entertainment, Inc. This complaint was amended on January 30, 2015 and alleged that the Company ignored, downplayed, and/or failed to disclose the risks associated with traumatic brain injuries suffered by WWE's performers and sought class action status. On March 31, 2015, the Company filed a motion to dismiss the first amended class action complaint in its entirety or, if not dismissed, to transfer the lawsuit to the U.S. District Court for the District of Connecticut. Without addressing the merits of the Company's motion to dismiss, the Court transferred the case to Connecticut on June 25, 2015. The plaintiffs filed an objection to such transfer, which was denied on July 27, 2015. On January 16, 2015, a second lawsuit was filed in the U.S. District Court for the Eastern District of Pennsylvania, entitled Evan Singleton and Vito LoGrasso, individually and on behalf of all others similarly situated, v. World Wrestling Entertainment, Inc., alleging many of the same allegations as Haynes. On February 27, 2015, the Company moved to transfer venue to the U.S. District Court for the District of Connecticut due to forum-selection clauses in the contracts between WWE and the plaintiffs and that motion was granted on March 23, 2015. The plaintiffs filed an amended complaint on May 22, 2015 and, following a scheduling conference in which the court ordered the plaintiffs to cure various pleading deficiencies, the plaintiffs filed a second amended complaint on June 15, 2015. On June 29, 2015, WWE moved to dismiss the second amended complaint in its entirety. On April 9, 2015, a third lawsuit was filed in the U. S. District Court for the Central District of California, entitled Russ McCullough, a/k/a "Big Russ McCullough," Ryan Sakoda, and Matthew R. Wiese a/k/a "Luther Reigns," individually and on behalf of all others similarly situated, v. World Wrestling Entertainment, Inc., asserting similar allegations to Haynes. The Company again moved to transfer the lawsuit to Connecticut due to forum-selection clauses in the contracts between WWE and the plaintiffs, which the California court granted on July 10, 2015. On September 21, 2015, the plaintiffs' amended this complaint, and, on November 16, 2015, the Company moved to dismiss the amended complaint. Each of these suits sought unspecified actual, compensatory and punitive damages and injunctive relief, including ordering medical monitoring. The Haynes and McCullough cases purport to be class actions. On February 18, 2015, a lawsuit was filed in Tennessee state court and subsequently removed to the U.S. District Court for the Western District of Tennessee, entitled Cassandra Frazier, individually and as next of kin to her deceased husband, Nelson Lee Frazier, Jr., and as personal representative of the Estate of Nelson Lee Frazier, Jr. Deceased, v. World Wrestling Entertainment, Inc. A similar suit was filed in the U. S. District Court for the Northern District of Texas entitled Michelle James, as mother and next friend of Matthew Osborne, minor child, and Teagan Osborne, a minor child v. World Wrestling Entertainment, Inc. These lawsuits contain many of the same allegations as the other lawsuits alleging traumatic brain injuries and further allege that the injuries contributed to these former talents' deaths. WWE moved to transfer the Frazier and Osborne lawsuits to the U.S. District Court for the District of Connecticut based on forum-selection clauses in the decedents' contracts with WWE, which motions were granted by the respective courts. On November 23, 2015, amended complaints were filed in Frazier and Osborne, which the Company moved to dismiss on December 16, 2015 and December 21, 2015, respectively. On November 10, 2016, the Court granted the Company's motions to dismiss the Frazier and Osborne lawsuits in their entirety. On June 29, 2015, the Company filed a declaratory judgment action in the U. S. District Court for the District of Connecticut entitled World Wrestling Entertainment, Inc. v. Robert Windham, Thomas Billington, James Ware, Oreal Perras and various John and Jane Does seeking a declaration against these former performers that their threatened claims related to alleged traumatic brain injuries and/or other tort claims are time-barred. On September 21, 2015, the defendants filed a motion to dismiss this complaint, which the Company opposed. The Court previously ordered a stay of discovery in all cases pending decisions on the motions to dismiss. On January 15, 2016, the Court partially lifted the stay and permitted discovery only on three issues in the case involving Singleton and LoGrasso. Such discovery was completed by June 1, 2016. On March 21, 2016, the Court issued a memorandum of decision granting in part and denying in part the Company's motions to dismiss the Haynes, Singleton/LoGrasso, and McCullough lawsuits. The Court granted the Company's motions to dismiss the Haynes and McCullough lawsuits in their entirety and granted the Company's motion to dismiss all claims in the Singleton/LoGrasso lawsuit except for the claim of fraud by omission. On March 22, 2016, the Court issued an order dismissing the Windham lawsuit based on the Court's memorandum of decision on the motions to dismiss. On April 4, 2016, the Company filed a motion for reconsideration with respect to the Court's decision not to dismiss the fraud by omission claim in the Singleton/LoGrasso lawsuit and, on April 5, 2016, the Company filed a motion for reconsideration with respect to the Court dismissal of the Windham lawsuit. On July 21, 2016, the Court denied the Company's motion in the Singleton/LoGrasso lawsuit and granted in part the Company's motion in the Windham lawsuit. On April 20, 2016, the plaintiffs filed notices of appeal of the Haynes and McCullough lawsuits. On April 27, 2016, the Company moved to dismiss the appeals for lack of appellate jurisdiction, which motions were granted, and the appeals were dismissed with leave to appeal upon the resolution of all of the consolidated cases. The Company filed a motion for summary judgment on the sole remaining claim in the Singleton/LoGrasso lawsuit, which was granted on March 28, 2018. The Company also filed a motion for judgment on the pleadings against the Windham defendants. Lastly, on July 18, 2016, a lawsuit was filed in the U.S. District Court for the District of Connecticut, entitled Joseph M. Laurinaitis, et al. vs. World Wrestling Entertainment, Inc. and Vincent K. McMahon, individually and as the trustee of certain trusts. This lawsuit contains many of the same allegations as the other lawsuits alleging traumatic brain injuries and further alleges, among other things, that the plaintiffs were misclassified as independent contractors rather than employees denying them, among other things, rights and benefits under the Occupational Safety and Health Act (OSHA), the National Labor Relations Act (NLRA), the Family and Medical Leave Act (FMLA), federal tax law, and various state Worker's Compensation laws. This lawsuit also alleges that the booking contracts and other agreements between the plaintiffs and the Company are unconscionable and should be declared void, entitling the plaintiffs to certain damages relating to the Company's use of their intellectual property. The lawsuit alleges claims for violation of The Racketeer Influenced and Corrupt Organizations (RICO), unjust enrichment, and an accounting against Mr. McMahon. The Company and Mr. McMahon moved to dismiss and for sanctions with respect to this complaint on October 19, 2016. On November 9, 2016, the Laurinaitis plaintiffs filed an amended complaint. On December 23, 2016, the Company and Mr. McMahon moved to dismiss and for sanctions with respect to the amended complaint. On September 29, 2017, the Court issued an order on the motion to dismiss pending in the Laurinaitis case and on the motion for judgment on the pleadings pending in the Windham case. The Court reserved judgment on the pending motions and ordered that within thirty-five (35) days of the date of the order the Laurinaitis plaintiffs and the Windham defendants file amended pleadings that comply with the Federal Rules of Civil Procedure. The Court further ordered that each of the Laurinaitis plaintiffs and the Windham defendants submit to the Court for in camera review affidavits signed and sworn under penalty of perjury setting forth facts within each plaintiff's or declaratory judgment-defendant's personal knowledge that form the factual basis of their claim or defense. On November 3, 2017, the Laurinaitis plaintiffs filed a second amended complaint. The Company and Mr. McMahon believe that the second amended complaint failed to comply with the Court's September 29, 2017 order and otherwise remained legally defective for all of the reasons set forth in their motion to dismiss the amended complaint. Also on November 3, 2017, the Windham defendants filed a second answer. On November 17, 2017, the Company and Mr. McMahon filed a response that, among other things, urged the Court to grant the motion for judgment on the pleadings against the Windham defendants and dismiss the Laurinaitis plaintiffs' complaint with prejudice and award sanctions against the Laurinaitis plaintiffs' counsel because the amended pleadings failed to comply with the Court's September 29, 2017 order and the Federal Rules of Civil Procedure. On September 17, 2018, the Court granted the motion to dismiss filed by the Company and Mr. McMahon in the Laurinaitis case in its entirety, awarded sanctions against the Laurinaitis plaintiffs' counsel, and granted the Company's motion for judgment on the pleadings against the Windham defendants. The plaintiffs attempted to appeal these decisions. On November 16, 2018, the Company moved to dismiss all of the appeals, except for the appeal of the dismissal of the Laurinaitis case, for being filed untimely. On April 4, 2019, the Second Circuit issued an order referring the Company's motions to dismiss to the panel that was going to determine the merits of the appeals. The plaintiffs-appellants' opening brief was filed on July 8, 2019. The Company and Mr. McMahon filed their appellees' brief on October 7, 2019. The plaintiffs-appellants filed a reply brief on October 28, 2019. The Second Circuit held oral argument on June 5, 2020. On September 9, 2020, the Second Circuit issued a summary order, dismissing the appeals of the sanctions orders and the merits appeals of the dismissal of all claims in the Haynes, McCullough, Frazier, and Singleton cases for lack of appellate jurisdiction and affirming the judgment of the district court on all other claims. On September 23, 2020, the plaintiffs-appellants filed a petition for rehearing/rehearing en banc, which was denied on October 15, 2020. World Wrestling Entertainment said, "The Company believes all claims and threatened claims against the Company in these various lawsuits were prompted by the same plaintiffs' lawyer and that all are without merit. The Company intends to continue to defend itself against any further attempt to appeal these decisions vigorously." World Wrestling Entertainment, Inc., an integrated media and entertainment company, engages in the sports entertainment business in North America, Europe, the Middle East, Africa, the Asia Pacific, and Latin America. It operates in three segments: Media, Live Events, and Consumer Products. The company was founded in 1980 and is headquartered in Stamford, Connecticut. YAMAHA MOTOR: Cal. App. Affirms Summary Judgment Against Baker -------------------------------------------------------------- The Court of Appeals of California, Fourth District, affirms the trial court's ruling granting summary judgment in favor of Yamaha in the lawsuit entitled KYLE BAKER, Plaintiff and Appellant v. YAMAHA MOTOR CORPORATION, USA, Defendant and Respondent, Case No. E072089 (Cal. App.). Plaintiff and Appellant Baker sued Defendant and Respondent Yamaha, a California corporation, alleging that its failure to furnish hanging price tags to its independent dealer Temecula Motorsports, Inc. ("TMI") in 2012, as required by Vehicle Code former section 24014, subdivision (a), made it impossible for consumers to determine the true prices of its new, assembled motorcycles. Baker alleged causes of action for unfair competition (UCL; Bus. & Prof. Code, Section 17200 et seq.), false advertising (FAL; Bus. & Prof. Code, Section 17500, et seq.), and aiding and abetting. Yamaha sells its products, including motorcycles, through independent dealers, such as TMI, who purchase these products at wholesale prices. The dealers sell the motorcycles to customers at individually negotiated prices. Yamaha does not receive information from dealers about the prices they charge in retail transactions, nor does it have any control over how much dealers charge their customers. Yamaha's dealer agreements require dealers to "'conduct and maintain at all times their sales and service operations in strict compliance with all applicable federal and state laws and regulations, county and city ordinances and regulations and any other applicable law, regulation or ordinance.'" In 2012, the year relevant to the case, California law required dealers to attach hang tags (furnished by motorcycle manufacturers and approved by the Department of Motor Vehicles ("DMV")), which indicate the "recommended retail price of the motorcycle" and the "recommended price for each accessory or item of optional equipment physically attached to the motorcycle at the time of its delivery to the dealer." On October 29, 2012, Yamaha sent a letter to its California motorcycle dealers regarding the use of DMV-approved Yamaha hang tags. DMV's approval of Yamaha's hang tag format was effective December 21, 2012. Prior to October 2012, TMI prepared its own hang tags. In June 2012, Baker shopped for a new Yamaha R6 motorcycle (R6) by researching on the Internet and comparing prices at Fun Bike Center and TMI. At TMI, the R6 had a TMI hang tag that listed Yamaha's manufacturer's suggested retail price ("MSRP") of $10,890, an amount Baker previously had seen on Yamaha's Web site. The hang tag also listed an additional dealer markup ("ADM") of $1,760, bringing the total asking price to $12,650, exclusive of sales tax and applicable DMV fees. The ADM included freight ($300) and preparation ($1,460) charges. The bottom of the hang tag stated the total price "includes but is not limited to freight, assembly, service, dealer insurance, profit and overhead, flooring and other costs where applicable." The R6 had no accessories or optional equipment installed, so there was no price quoted for those items. Mr. Baker understood that the price listed on the R6 hang tag was negotiable. Therefore, on June 29, 2012, he negotiated a total purchase price (before sales tax, registration and certain fees) of $10,225.06 or $2,424.94 less than the hang tag price of $12,650 ($12,650-$2,424.94=$10,225.06). The total amount due for the R6 was $11,200. Baker's deal was $664.94 less than the R6's MSRP of $10,890 ($10,890-$664.94=$10,225.06). He is not aware of any dealer who would have sold him the 2012 R6 for an overall price of $11,200 or less. On December 31, 2015, Baker filed a putative class action against TMI, asserting claims under California's UCL and FAL, and alleging that TMI imposed undisclosed fees on him and other customers. On January 27, 2016, he added Yamaha as a defendant in his first amended complaint; however, his claims against Yamaha were for "injunctive relief only" and "without seeking class certification." Baker sought an injunction requiring Yamaha to stop its misleading advertising. Yamaha demurred on the ground Baker lacked standing. Subsequently, on February 2, 2018, Baker was granted leave to file his third amended complaint, which focused on the allegation that the R6 he purchased did not bear a hang tag furnished by Yamaha to TMI. Baker claims Yamaha failed to comply with sections 24014 and 11712.5. On July 18, 2018, Yamaha moved for summary judgment. The trial court granted summary judgment in favor of Yamaha on the grounds Baker lacked standing because the undisputed evidence showed he was not harmed by the absence of the "Yamaha hang tags." The trial court granted the motion on the ground Baker failed to establish the requisite harm to support his claims against Yamaha for violations of the UCL and FAL and for common law aiding and abetting. The court concluded the following: (1) "the only information that Yamaha would have been required to state on the hang tags was the MSRP," (2) Baker "read TMI's non-Yamaha hang tag and knew what the MSRP was," and (3) Baker would have received "identical" information "had Yamaha provided hang tags" to TMI. The court explained: "Given that the information provided would have been identical, the undisputed evidence shows that plaintiff was not harmed by the absence of the Yamaha hang tags." Judgment was entered on November 29, 2018. Baker appeals. On appeal, Baker does not challenge the undisputed facts. Rather, he contends the trial court erred in (1) concluding he lacked standing by misinterpreting and narrowly applying the particularized interests protected by sections 24014 and 11712.5, (2) concluding there was no UCL violation because he had knowledge of Yamaha's MSRP, (3) treating "standing" as an "element" of his claims, (4) concluding TMI's "disclosures" on its hang tag discharged Yamaha's duties under section 24014, (5) ignoring disputed material facts it deemed irrelevant, and (6) adjudicating his aiding and abetting claim in Yamaha's favor. The Appellate Court rejects Baker's contentions and concludes, on the evidence presented, he failed to raise a triable issue of whether he was harmed by Yamaha's failure to furnish hang tags to TMI. The Appellate Court, therefore, affirms the judgment. Judge Art W. McKinster, writing for the Panel, opines that: the trial court properly concluded Baker lacked standing, Baker did not suffer an economic injury as a result of Yamaha's failure to provide a hang tag to TMI, and Yamaha's statutory violation did not cause Baker's alleged injury. As Yamaha points out, TMI's allegedly improper dealer-imposed fees have nothing to do with Yamaha. The fees were imposed at TMI's sole discretion and were allowed by law, Judge McKinster holds. Unable to overcome the basic fact that he has not suffered any economic damages, Baker raises several arguments to eliminate the standing requirement. Each fails, Judge McKinster concludes. The Judge explains, among other things, that proof of a violation of a predicate statute is not enough to support a UCL violation under the unlawful prong. Judge McKinster adds that Yamaha's motion for summary judgment was properly granted on the grounds Baker lacked standing. In his reply brief, Baker requests leave to amend so that a substitute harmed plaintiff can replace him. He cites Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243 (Branick), and Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352, without any analysis of their legal authority. The Appellate Court notes that in Branick, the case was on appeal when Proposition 64 was adopted (Gen. Elec. (Nov. 2, 2004)). Thus, the Court of Appeal allowed the matter to be remanded to determine whether the circumstances warranted granting leave to amend. (Branick, supra, 39 Cal.4th at pp. 242-244.) Unlike Branick, the instant case was filed several years after Proposition 64 was adopted, Judge McKinster notes. Moreover, Baker makes no representation that other harmed plaintiffs exist. Accordingly, the Appellate Court denies the request. The judgment is affirmed. Yamaha to recover costs on appeal. A full-text copy of the Court's Opinion dated Feb. 4, 2021, is available at https://tinyurl.com/3pm57mov from Leagle.com. Pestotnik LLP and Ross H. Hyslop -- hyslop@pestotnik.com -- for the Plaintiff and Appellant. Gibson, Dunn & Crutcher, Theane Evangelis -- tevangelis@gibsondunn.com -- Timothy W. Loose -- tloose@gibsondunn.com -- Daniel R. Adler -- dadler@gibsondunn.com -- and Emily R. Sauer -- esauer@gibsondunn.com -- for the Defendant and Respondent. [*] FCA Issues Statement on Recent Gamestop Share Trading Issues ---------------------------------------------------------------- Ralph Lovesy, Esq., and Christopher Walker, Esq., of Burges Salmon, report that it has been well publicised that certain stock prices have risen exponentially as retail investors -- many within communities such as Reddit's popular "r/WallStBets" message board -- bought shares and placed options against stocks shorted by hedge funds (e.g. NYSE-listed companies such as video game retailer GameStop or cinema chain AMC) en masse in a story that continues to attract widespread interest. However, on 29 January the UK financial regulator, the Financial Conduct Authority ("FCA") issued a statement to investors, noting that "buying shares in volatile markets is risky and you may quickly lose money. These losses are unlikely to be covered by the Financial Services Compensation Scheme". The U.S. Securities and Exchange Commission (the "SEC") has issued a similar warning to retail investors via its recent update "Thinking About Investing in the Latest Hot Stock?". In the U.S., some investors are now seeking to issue class action lawsuits against online brokerage platforms such as Robinhood, which have come under criticism for restricting investors ability to continue to place orders in certain shares. With reference to the UK, the FCA's statement also notes that brokerage firms are "not obliged to offer trading facilities to clients", highlighting that firms: 1. "may withdraw their services, in line with customer terms and conditions if, for instance, they consider it necessary or prudent to do so"; and 2. "[are] exposed to greater risk and therefore more likely to need to take such action during periods of abnormally high transaction volumes and price volatility". The FCA notes that it will "take appropriate action wherever we see evidence of firms or individuals causing harm to consumers or markets" in line with its operational objectives to: * secure an appropriate degree of protection for consumers; * protect and enhance the integrity of the UK financial system; and * promote effective competition in the interests of consumers. [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 ***