/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210422.mbx C L A S S A C T I O N R E P O R T E R Thursday, April 22, 2021, Vol. 23, No. 75 Headlines BAYER HEALTHCARE: Flea, Tick Collars Not Safe for Pets, Says Suit CONTEXTLOGIC INC: Bid to Compel Arbitration in Britt Suit Granted FARMERS GROUP: Judgment in Geter Class Suit Affirmed in Part GREENSKY INC: Bid to Compel Arbitration in Belyea Suit Denied GREENSKY INC: Court Narrows Barnes' Claims in Amended Balyea Suit KOHLBERG VENTURES: Summary Judgment Bid in Wojciechowski Suit OK'd MDL 2968: Cooper vs. Generali Insurance Row Transferred to S.D.N.Y MDL 2969: Udesky v. Erie Transferred to W.D. Pa. MDL 2972: Two Blackbaud Data Breach Cases Transferred to D.S.C. MDL 2974: Two Paragard IUD Liability Suits Transferred to N.D. Ga. MDL 2984: Five Folgers Mislabeling Suits Consolidated in W.D. Mo. MDL 2985: Six Apple App Gambling Suits Transferred to N.D. Cal. MDL 2987: Centralization of GM Battery Liability Suits Denied MDL 2989: Various Short Squeeze Suits Transferred to S.D. Fla. ONIN STAFFING: Miles Files Suit Over Illegal Background Check PARTNER COMMS: Suit Applicants Seek Withdrawal from Ct. Proceedings PARTNER COMMS: Suit Over Unlawful Charges and Rates Underway PREFERRED PRECISION: Morgan Sues Over Illegally Obtained Report SHAWS SUPERMARKETS: Bid to Dismiss First Amended Constantino Denied TOPA INSURANCE: Caribe Class Suit Dismissed Without Leave to Amend TOYOTA MOTOR: Court Narrows Claims in Rav4 Hybrid Fuel Tank Suit ********* BAYER HEALTHCARE: Flea, Tick Collars Not Safe for Pets, Says Suit ----------------------------------------------------------------- MICHAELE DPHREPAULEZZ on behalf of herself and all others similarly situated v. BAYER HEALTHCARE LLC, and ELANCO ANIMAL HEALTH, INC., Case 1:21-cv-02439 (N.D. Cal., April 5, 2021) is a class action on behalf of purchasers of Seresto Collars in the United States against the Defendants for breach of implied warranty, unjust enrichment, and violations of California consumer protection laws. The complaint alleges that the Defendants manufacture, make, market, and distribute Seresto brand flea and tick collars that prevents fleas and ticks on pets, specifically dogs and cats, by releasing small amounts of pesticides from the collar onto the pets over months at a time. The complaint relates that contrary to representations, Seresto Collars are anything but safe for pets, as they can and have caused, pets and their owners to suffer serious injuries. Thus, any benefit of flea or tick prevention that the Products may offer is far outweighed by the consequences to the pet, other pets nearby, to the pet owner, or to others in the immediate vicinity, including family members, asserts the complaint. Plaintiff Michaele Dphrepaulezz purchased a Seresto Collar for her dog in September 2020 in Arcata, California. In purchasing the Product, Plaintiff relied on Defendants' false, misleading, and deceptive marketing of the Products as a safe flea and tick medication. Plaintiff read and followed the instructions of the Product when applying it to her dog. However, after application, Plaintiff's one-and-a-half-year-old service dog became extremely lethargic. Plaintiff removed the collar and the dog recovered. Defendant Bayer Healthcare LLC is the former owner of the Seresto brand of collars, and sold the brand to Defendant Elanco Animal Health, Inc. in 2020. Bayer is a Delaware corporation and is headquartered in Whippany, New Jersey. Defendant Elanco Animal Health, Inc. is the current owner of the Seresto brand. Elanco is an Indiana corporation and is headquartered in Greenfield, Indiana. Since purchasing the Seresto brand in 2020, Elanco has sold the Products at issue.[BN] The Plaintiff is represented by: L. Timothy Fisher, Esq. Yeremey Krivoshey, Esq. Blair E. Reed, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com ykrivoshey@bursor.com breed@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 701 Brickell Avenue, Suite 1420 Miami, FL 33131 Telephone: (305) 330-5512 Facsimile: (305) 676-9006 E-Mail: scott@bursor.com CONTEXTLOGIC INC: Bid to Compel Arbitration in Britt Suit Granted ----------------------------------------------------------------- In the case, TIFFANY BRITT, Plaintiff v. CONTEXTLOGIC, INC., Defendant, Case No. 3:20-cv-04333-WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Defendant's petition to compel arbitration, and denied the Plaintiff's motion for partial summary judgment. In the putative class action for online consumer transactions, the Plaintiff brings claims under California's Consumer Legal Remedies Act and Unfair Competition Law alleging that defendant is deceptively and unlawfully functioning as an unlicensed distributor of contact lenses and failing to require purchasers to provide a prescription before purchasing contact lenses in violation of the Fairness to Contact Lens Consumers Act, 15. U.S.C. Sections 7601-7610. The Defendant operates online marketplaces including Wish, Cute, Mama, Home and Geek. Each of its marketplace platforms are available via web browser or mobile apps. Through its platforms, the Defendant allows third parties "to set up stores that list and sell items to" consumers. Plaintiff Britt is an individual and a resident of California. She alleges that the sale or distribution of contact lenses, even those that do not correct vision and are purely for cosmetic purposes (plano contacts), is prohibited by Federal and state law for persons and entities that are not licensed to sell, distribute, or facilitate the sale of contact lenses. She further alleges that the Defendant deceives consumers by representing that it prohibits the sale or listing for sale of contact lenses on its platforms. Perhaps incredibly, plaintiff alleges she reviewed and relied on the Defendant's prohibited product listings policy, which applies only to third-party sellers and is only accessible through the "Wish for Merchants" tab on the Wish.com website, while also maintaining that she was unaware of the terms of use which applied to her use of the Wish platforms. The question now is whether the Plaintiff must be required to arbitrate her claims pursuant to the mandatory arbitration agreement in the Defendant's terms of use. The Plaintiff seeks declaratory relief that the mandatory arbitration provision in the Defendant's terms of use does not bind the Plaintiff because she did not assent to them or, in the alternative, that the terms of use are unenforceable. The Plaintiff refers in her complaint to Judge James Donato's decision in 2018 that the Defendant's log-in and sign-up screens did not give sufficient notice of the terms of use and, therefore, no agreement to arbitrate was formed. She admits, however, that at least since that decision, the Defendant has changed the log-in screen that appears on its Wish platform to appear -- minus the red box around the notice language. The Plaintiff argues that the addition of the notice language, appearing in the red box, was not enough to give notice of the terms of use. Importantly, however, she does not say that she never interacted with the above screen when she "made contact lens purchases through Wish.com's website and/or mobile application at various times from January to June of 2019 via Wish.com's mobile phone application." Thus, the Plaintiff implicitly concedes that when she made the contact lens purchases that are the subject of her complaint, she interacted with the screen. Teh Defendant confirms that the log-in screen, minus the red box, is an accurate representation of the Wish.com log-in screen the Plaintiff would have used to log-in and make her contact lens purchases. The Plaintiff moves for partial summary judgment on the issue of her assent to the terms, asserting that she did not assent and, therefore, is not bound to them, and, even if the parties did form an agreement to arbitrate, it is unenforceable. The Defendant opposes and petitions to compel arbitration. A hearing was held on the motions. Reasonable and narrowly directed discovery on the issue of the Plaintiff's assent to the terms of use was permitted. All other merits-based discovery was stayed pending resolution of the motions. The parties were ordered to submit supplemental briefs incorporating their discovery findings. The Plaintiff deposed Atish Bhattacharjya, an employee of the Defendant, whose declaration formed the basis of the Defendant's petition to compel arbitration. The Defendant deposed the Plaintiff. The parties filed supplemental briefs, oppositions, and replies, complete with exhibits and deposition transcripts. A second hearing was held on the arbitration question with the benefit of the discovery and supplemental briefs. Judge Alsup finds that the Defendant's Wish sign-in screen served to put the Plaintiff on constructive notice of the terms of use, and when she logged-in in December 2018, she manifested her assent thereto. At the April 7 hearing, the counsel for the Plaintiff conceded that if the Plaintiff was put on constructive notice, that notice would carry forward to her uture use of the Wish application. The concession is well taken. Thus, when the Plaintiff bought contact lenses on the Defendant's Wish application in January and March 2019, she was bound by the terms of use, including the mandatory arbitration provision. Judge Alsup also finds that the current version of the Defendant's terms of use, which governs the case, provides that "the arbitrator, and not any federal, state or local court or agency will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable." This language, according to the Judge, clearly and unmistakably delegates to the arbitrator the authority to decide the enforceability or validity of the arbitration agreement in the Defendant's terms of use. The Plaintiff must make her unconscionability arguments to the arbitrator in the first instance. Therefore, Judge Alsup denied the Plaintiff's motion for partial summary judgment. He granted the Defendant's petition to compel arbitration. The Court will retain jurisdiction to enforce the award and, if the Defendant drags its feet in teeing up the arbitration, to re-activate the civil action. A further case management conference will be held at 11:00 a.m. on Oct. 7, 2021. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/mttc4dw4 from Leagle.com. FARMERS GROUP: Judgment in Geter Class Suit Affirmed in Part ------------------------------------------------------------ Judge James D. Blacklock of the U.S. Supreme Court of Texas reverses in part and affirm in part the court of appeals' judgment in the case, FARMERS GROUP, INC., FARMERS UNDERWRITERS ASSOCIATION, FIRE UNDERWRITERS ASSOCIATION, FARMERS INSURANCE EXCHANGE, AND FIRE INSURANCE EXCHANGE, Petitioners v. SANDRA GETER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, GERALD HOOKS, JR., LESLY K. NOLEN, AND JOSEPH C. BLANKS, P.C., Respondents, Case No. 19-0996 (Tex.). Beginning in 2000, the Texas homeowners insurance market experienced a large increase in mold claims. At the time, Farmers Group, Inc., like other insurers, offered a broad "all risk" policy known as the HO-B policy. This policy was approved by the Texas Department of Insurance (TDI) under its statutory authority to approve insurance forms. Homeowners insurance policies cannot be issued in Texas without TDI approval. In November 2001, Farmers and other insurers decided to stop offering HO-B policies. Farmers decided to offer instead a less comprehensive "named peril" policy known as the HO-A policy. A letter from Farmers executive John Hageman to TDI stated that the decision to discontinue the HO-B policy and offer the HO-A policy was "motivated primarily by the dramatic increases that we have experienced for water, mold and foundation claims, and the resultant underwriting losses." TDI approved Farmers' decision and mandated that all insurers remove the HO-B policy from the market by the end of 2002. It approved an enhanced HO-A policy, one including coverage for some water claims, which Farmers intended to offer as a substitute for the HO-B policy. Pursuant to statute, an insurer may choose not to renew a policy so long as it provides the insured a written notice no later than 30 days before the policy expires. In 2002, Farmers sent a notice of non-renewal to its HO-B policyholders, including Respondent Sandra Geter. The notice stated that the policyholders' existing policies would not be renewed and that Farmers would no longer offer the HO-B policy "because of substantial losses which we have incurred for the homeowners and dwellings lines of insurance in Texas." The notice informed policyholders that Farmers would continue to offer coverage under its HO-A policy. In August 2002, Geter filed the lawsuit in Jefferson County after receiving Farmers' non-renewal notice. In addition to the Geter suit now before the Court, a separate class-action suit was filed in August 2002 in Travis County. The Travis County suit was originally brought by the State of Texas on behalf of TDI as the sole plaintiff. It accused Farmers of various statutory violations related to the premiums charged for homeowners policies. Specifically, it alleged that Farmers wrongfully raised premiums despite offering less coverage when it replaced the HO-B policy with the HO-A policy. TDI did not allege that Farmers improperly failed to renew the HO-B policies, as Geter alleges. In 2002, the State amended the Travis County suit to include certain class-action allegations. In 2003, class members Gerald Hooks and Lesly Hooks (later Lesly Nolen) alleged that Farmers breached the HO-B policy by refusing to renew it. This breach-of-contract claim mirrored the contract non-renewal claim that is the focus of the pending Geter case. In 2016, after a series of appeals and many years of litigation, the trial court in the Travis County suit rendered judgment approving a settlement agreement. The agreement released various class claims against Farmers but excepted from the release the wrongful non-renewal claim asserted in the Geter case. In August 2002, Respondent Sandra Geter filed the Jefferson County suit now before the Court. She claimed that Farmers did not have the right to non-renew HO-B policies, including her policy. She sought a declaratory judgment that the non-renewal was ineffective and that class members were entitled to renew their HO-B policies. She sought and received class certification from the trial court. The parties filed cross-motions for summary judgment. Farmers relied principally on its statutory right to non-renew policies with 30-days' notice. Geter relied principally on contract language in the HO-B policy. She argued that the mold claims that prompted Farmers to non-renew the HO-B policy were "claims for losses resulting from natural causes" under paragraph 6(a). The trial court granted summary judgment to Geter and the class on Geter's declaratory judgment claim, holding that Farmers breached the insurance contract by not renewing the policies. The court held that each class member was entitled to renew his HO-B policy. The court later ordered Farmers to issue HO-B policies to class members wishing to renew them at a premium set by the trial court. That order has been superseded while the case is appealed, and Farmers has not offered any HO-B policies since 2001. Years later, in 2016, the trial court held a jury trial on attorney fees. Based on the jury's findings and the court's application of a multiplier, the court awarded over $3 million in attorney fees along with substantial costs. The trial court rendered a final judgment in 2017. The court of appeals affirmed the trial court's judgment insofar as the trial court held that Farmers breached the insurance contract when it refused to renew the HO-B policies. However, the court of appeals reversed the portion of the trial court's judgment ordering Farmers to issue the insurance policies at a determined premium. The court of appeals remanded the case for a decision on the proper remedy, if any, for the class's breach-of-contract claim. The court of appeals affirmed the award to the class of attorney fees and costs. It reversed the order striking the intervention by Hooks and Nolen. It did not address the trial court's decision to strike the intervention of Joseph C. Blanks, P.C. because it found that intervention to be duplicative of the Hooks and Nolen intervention. The primary issue is how to interpret a homeowners insurance policy that has been out of use for nearly 20 years. Judge Blacklock explains that the dispute comes down to what paragraph 6(a) of the policy means by "claims for losses." If the language refers to "claims" and "losses" of the individual policyholder, then Farmers is correct that the policy does not preclude an insurer from terminating the policy's use statewide because of systemic losses that make continued use of the policy financially untenable. If "claims" and "losses" also refers to statewide or systemic "claims" and "losses," then Geter is correct that the policy prohibited Farmers from deciding to non-renew. Judge Blacklock is guided by the rule of contract interpretation that favors consistent use of a term that is used more than once. Words used in one sense in one part of a contract are, as a general rule, deemed to have been used in the same sense in another part of the instrument, where there is nothing in the context to indicate otherwise, citing Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990); accord Solvent Underwriters Subscribing to Energy Ins. Int'l, Inc. Cover Note No. EII-3824 v. Furmanite Am., Inc., 282 S.W.3d 661, 669-70 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). While this rule is not rigidly applied, the Court has recognized a presumption that identical words used in different parts of the same insurance policy should generally be given the same meaning. Applying this rule, the Judge concludes that the insurer correctly interprets the policy and was therefore entitled to summary judgment on the individual and class claims. The trial court awarded substantial attorney fees and costs to the class. The court of appeals affirmed the award. Class members Hooks and Nolen intervened to seek fees related to their attorney's work in obtaining a carve-out of the Geter claims from the settlement of the Travis County suit. For the same reason, Joseph C. Blanks, P.C., counsel for Hooks and Nolen in both cases, also sought to intervene. The trial court struck the interventions of Hooks, Nolen, and Joseph C. Blanks, P.C. The court of appeals reversed the order striking the intervention of Hooks and Nolen but did not reverse the order striking the intervention of Joseph C. Blanks, P.C. Under an abuse of discretion standard, Judge Blacklock concludes the trial court had "sufficient cause" to strike the intervention of Hooks and Nolen. The court of appeals erred in reversing the striking of the plea in intervention. The Judge cannot conclude the trial court abused its discretion in declining to take on such a burden at the request of parties whose connection to the Jefferson County suit was tangential at best. Hooks and Nolen also have ultimately accomplished no "favorable results" for the Geter class. Judge Blacklock concludes that Farmers was entitled to summary judgment on Geter's breach-of-contract claim for non-renewal of the HO-B policies. He reverses the court of appeals' judgment regarding this claim and render judgment that the Plaintiff and the class take nothing on this claim. He reverses the court of appeals' judgment on the fee request of the class counsel and remands the case to the trial court for further proceedings on the requests for attorney fees and costs. The Judge also reverses the court of appeals' judgment insofar as it revived the intervention of Hooks and Nolen, and he reinstates the trial court's order striking the intervention. Finally, the Judge affirms the court of appeals' judgment insofar as it affirmed the trial court order striking the intervention of Joseph C. Blanks, P.C. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/2cekt6w7 from Leagle.com. GREENSKY INC: Bid to Compel Arbitration in Belyea Suit Denied ------------------------------------------------------------- In the case, ELIZABETH BELYEA, et al., Plaintiffs v. GREENSKY, INC., et al., Defendants, Case No. 20-cv-01693-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California denied GreenSky's motion to compel arbitration of the Plaintiffs' claims. Elizabeth Belyea, Heidi Barnes, Hazel Lodge, and David Ferguson bring the putative class action against GreenSky of Georgia, LLC and GreenSky, LLC, alleging violation of California's consumer protection, lending and credit services laws. GreenSky is a "financial technology company" which among other things acts as a loan servicer for "point-of-sale loans for consumers to pay for home improvement, home repair, and healthcare costs." Between 2016 and 2019, each of the Plaintiffs took out one or more such loans to pay for home repair projects. In each Plaintiff's case, the contractor or plumber ("merchant") suggested that he could arrange financing for the home repair/improvement project. Once the Plaintiff agreed, the merchant "procured a loan" for the plaintiff using the GreenSky App. Each of these loans was provided by a third-party bank--generally, SunTrust Bank (now Truist) or InTrust Bank--which was serviced by GreenSky. Ms. Belyea financed $23,600 through a GreenSky-serviced loan, with GreenSky transferring those funds directly to the plumber. The loan carried a 25% APR over seven years of monthly payments, with an 18-month interest-waived promotion. Lodge financed two loans for a total of $14,607 through a GreenSky-serviced loan, with GreenSky transferring those funds directly to the plumber. The loans carried a purported 0% APR over four years of monthly payments. Ferguson financed two loans for a total of $10,117.50 through the GreenSky loan program. Each Plaintiff's loan included an undisclosed merchant fee which was paid directly to GreenSky. As a result of the unlawful fee, each Plaintiff paid more than they otherwise would have. Ms. Belyea filed the putative class action in the Superior Court for the County of San Francisco against GreenSky, alleging violations of California's lending and credit services laws, as well as consumer protection laws. GreenSky thereafter removed the action to the Court under the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(2)(A) ("CAFA"). Less than a week later, GreenSky filed a motion to compel arbitration which the Court denied finding that GreenSky failed to prove by a preponderance of the evidence that Belyea agreed to arbitrate. Ms. Belyea thereafter filed a motion for leave to file an amended complaint, and following GreenSky's stipulation to amendment, the now operative FAC was filed. The FAC added Heidi Barnes, Hazel Lodge, and David Ferguson as representative plaintiffs. In response to the FAC, GreenSky moves to compel arbitration of Belyea, Lodge, and Ferguson's claims and moves to dismiss Barnes' claims. In support of its motions to compel arbitration, GreenSky offers unsigned copies of the Plaintiffs' loan agreements. Each of these agreements includes Arbitration Provision. The Court heard argument regarding these motions on Jan. 14, 2021. As a preliminary matter, the Plaintiffs insist that the Court need not even decide whether they agreed to arbitrate disputes arising from their GreenSky loan because GreenSky is not a signatory to the loan agreement that includes the Arbitration Provision that GreenSky seeks to enforce. Magistrate Judge Corley disagrees. She finds that the Arbitration Provision identifies "the circumstances and procedures under which Claims that arise between you and us will be resolved through binding arbitration." By servicing the loan memorialized in the loan agreement containing the Arbitration Provision, GreenSky is at least "a third party providing any product, service or benefit in connection with the Agreement." The Plaintiffs do not contend otherwise. As GreenSky falls within the Arbitration Provision's definition of "us," it may move to compel arbitration. GreenSky insists that the Plaintiffs agreed to the Arbitration Provision because (1) Greensky provided the Plaintiffs with the loan agreement containing the Arbitration Provision by at least three different methods, and (2) the Plaintiffs' use of the Shopping Pass associated with the loans demonstrates their assent and acceptance of the Arbitration Provision. Based on GreenSky's argument that Belaya's use of the Shopping Pass constituted assent, the Court previously concluded that the contract most closely resembles a browsewrap agreement. GreenSky now disputes that characterization and argues in a footnote that the Arbitration Provision is more akin to a clickwrap agreement. Its President and CEO attests that when consumers complete a loan application using the GreenSky App -- as the Plaintiffs did -- the GreenSky App requires the loan applicant to "certifyy that he had received a copy of the Installment Loan Agreement ... in a manner he could retain." It also argues that it provided the Plaintiffs with notice of the Arbitration Provision through additional means (email and mail) prior to each Plaintiff's use of the Shopping Pass, and that this notice coupled with Shopping Pass use is sufficient to demonstrate assent. Magistrate Judge Corley finds that GreenSky has failed to show through undisputed facts that the Plaintiffs received notice of the Arbitration Provision through the GreenSky App and the point-of-sale loan application process and then assented to its terms, or that Plaintiffs otherwise consented to the Arbitration Provision through the loan application process. She also finds that GreenSky has not met its burden of producing evidence sufficient to show that the emails it contends it sent to the Plaintiffs put the Plaintiffs on notice of the loan agreement and its Arbitration Provision and that the Plaintiffs thereafter assented to the Arbitration Provision. Lsatly, she finds that GreenSky has not met its burden of demonstrating that the Plaintiffs' receipt of the loan agreements containing the Arbitration Provision via the U.S. Mail coupled with the Plaintiffs' silence amounts to assent to the Arbitration Provision. For the reasons she stated, Magistrate Judge Corley denied GreenSky's motion to compel arbitration. Greensky has not met its burden of proving by a preponderance of the evidence that any named Plaintiff assented to the Arbitration Provision. GreenSky's response to the FAC will be filed in 21 days of the date of the Order. In the event that GreenSky moves to dismiss rather than answer, GreenSky is cautioned to avoid duplicative filings and will file a single motion and not separate motions for each Plaintiff. The Court will hold a further case management conference on May 6, 2021 at 1:30 p.m. via Zoom video. A joint case management conference statement is due one week in advance. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/yvuexka3 from Leagle.com. GREENSKY INC: Court Narrows Barnes' Claims in Amended Balyea Suit ----------------------------------------------------------------- In the case, ELIZABETH BELYEA, et al., Plaintiffs v. GREENSKY, INC., et al., Defendants, Case No. 20-cv-01693-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted in part and denied in part GreenSky's motion to dismiss Heidi Barnes' claims. Elizabeth Belyea, Heidi Barnes, Hazel Lodge, and David Ferguson bring the putative class action against GreenSky of Georgia, LLC and GreenSky, LLC alleging violation of California's consumer protection, and lending and credit services laws. In September 2016, Heidi Barnes contacted Reliable Home Improvement, Inc., regarding building a patio at her home in Roseville, California. The contractor told Barnes that the project would cost more than $10,000, but that she could finance the project. Using the GreenSky app, the contractor proceeded to procure a loan from InTrust Bank of Wichita on Barnes' behalf. Barnes ended up financing $7,500 through the GreenSky loan program. The loan carries a 6.99% APR over 120 monthly payments, with a five-month promotional period. She alleges that GreenSky received 9% of the loan as a merchant fee, but the merchant fee was not disclosed to her. As a result, she ended up paying more for her loan than she otherwise should have. In addition, GreenSky "conducted the entire transaction without a license from the California Department of Business Oversight, or being registered as a credit services organization with the California Department of Justice." In January 2020, Plaintiff Belyea filed the putative class action in the Superior Court for the County of San Francisco against GreenSky alleging violations of California's lending and credit services laws, as well as consumer protection laws. GreenSky thereafter removed the action to the Court alleging jurisdiction under the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(2)(A) ("CAFA"). Less than a week later, GreenSky filed a motion to compel arbitration which the Court denied finding that GreenSky failed to prove by a preponderance of the evidence that Beylea agreed to arbitrate. Beylea thereafter filed a motion for leave to file an amended complaint, and following GreenSky's stipulation to amendment, the now operative FAC was filed. The FAC added Heidi Barnes, Hazel Lodge, and David Ferguson as representative plaintiffs. The Defendants have moved to compel arbitration of the claims of Belyea, Lodge, and Ferguson, and move to dismiss Barnes' claims under Rules 12(b)(6) and 12(b)(1). Magistrate Judge Corley's Order addresses the motion to dismiss. She held an oral argument on Jan. 14, 2021. I. Failure to State A Claim Barnes pleads four claims for relief: (1) violation of California Credit Services Act ("CSA"), Cal. Civ. Code Sections 1789.10, et seq.; (2) violation of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code SectionSection 1750, et seq.; (3) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Sections 17200, et seq.; and (4) unjust enrichment/quasi-contract. GreenSky's motion to dismiss under 12(b)(6) is two-fold. First, GreenSky insists that Barnes' CSA, CLRA, and unjust enrichment claims are barred by the three-year statute of limitations. Second, and in the alternative, it contends that Barnes' CLRA and UCL claims fail to satisfy Rule 9(b) and that her CSA claim fails as a matter of law. A. Statute of Limitations GreenSky maintains that because Barnes' allegations involve a loan she obtained on Sept. 6, 2016 any claim subject to a three-year statute of limitations is time-barred. Barnes does not dispute that the action was filed more than three years after she obtained the GreenSky loan; instead, she insists that her claims are timely based on (1) a continuous accrual theory, (2) the delayed discovery rule, and (3) the fraudulent concealment doctrine. Magistrate Judge Corley holds that (i) Barnes has not plausibly alleged that the continuous accrual theory tolls her claims; (ii) while Barnes argues in her opposition that she could not have discovered the facts that give rise to her claims, she still must allege when and how she eventually did so because without such allegations, it is not plausible that she could not have earlier discovered facts sufficient to put her on inquiry; (iii) Barnes has not adequately pled fraudulent concealment for the same reason she has not adequately pled that the delayed discovery rule applies—she had not pled any facts regarding her discovery of the alleged fraud. Accordingly, Barnes' CLRA, CSA, and unjust enrichment claims are dismissed as barred by the three-year statute of limitations. To the extent that Barnes has a good faith basis for doing so, she may amend her complaint to allege tolling. B. Barnes' UCL Claim The UCL prohibits "any unlawful, unfair or fraudulent business act or practice." Because the UCL is broadly remedial and written disjunctively, "it establishes three varieties of unfair competition -- acts or practices which are unlawful, or unfair, or fraudulent." Barnes alleges a violation of all three prongs, but the Defendants have only moved to dismiss the claim under the fraudulent and unlawful prongs. Magistrate Judge Corley finds that (i) Barnes' UCL claim predicated on a violation of the CFL is adequately pled; and (ii) Barnes has plausibly pled a UCL claim under the fraudulent claim because her allegation that because the merchant fee was not disclosed she paid more for the loan than she otherwise would have plausibly supports an inference of reliance. Accordingly, Barnes has plausibly pled a UCL claim under the fraudulent claim. II. Standing GreenSky separately moves to dismiss Barnes' injunctive relief claim under Federal Rule of Civil Procedure 12(b)(1) on the grounds that Barnes lacks standing to pursue these claims because she fails to plead an immediate or threatened injury. Barnes insists that she has adequately pled standing because she faces pecuniary harm going forward from GreenSky's conduct; that is, she is continuing to make monthly payments that are inflated due to GreenSky's merchant fee. GreenSky maintains that this is insufficient because her loan agreement represents "a singular transaction" and that she continues to make loan payments is not relevant to the question of injury. Magistrate Judge Corley determines that the context of Barnes' continuous accrual theory, she has not alleged that the allegedly unlawful fees are part of her monthly interest payments as opposed to a fee that was assessed at the beginning of her loan. That is, Barnes does not allege that she is seeking to enjoin GreenSky's ongoing collection of this allegedly unlawful fee. To the extent that Barnes suggests in her opposition brief that she could allege that her "future payments will continue to be inflated by the cost of GreenSky's excessive fees as the fees are taken as a function of both the principal and interest on the loan -- which the Plaintiff will continue to pay for years to come," Barnes will be granted leave to amend to include these allegations which are not in the FAC. III. Conclusion For the reasons she stated, Magistrate Judge Corley granted in part and denied in part GreenSky's motion to dismiss Barnes' claims. Barnes' CSA, CLRA, and unjust enrichment claims are dismissed with leave to amend to the extent that Barnes has a good faith basis for alleging tolling consistent with the Order. Her UCL claim is dismissed with leave to amend to the extent that she can allege an ongoing injury sufficient to establish Article III standing. Barnes' amended complaint is due in 21 days. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/23tfm3ed from Leagle.com. KOHLBERG VENTURES: Summary Judgment Bid in Wojciechowski Suit OK'd ------------------------------------------------------------------ In the case, PETER WOJCIECHOWSKI, Plaintiff v. KOHLBERG VENTURES, LLC, Defendant, Case No. 16-cv-06775-TSH (N.D. Cal.), Magistrate Judge Thomas S. Hixon of the U.S. District Court for the Northern District of California grants Kohlberg Ventures' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Kohlberg Ventures is a limited liability company that operates as a venture capital firm that invests its own capital in, among other things, early stage cleantech companies. James Kohlberg is a Co-Founder and sole Member (owner) of Kohlberg Ventures. John S. Eastburn Jr. is a Co-Founder and Manager of Kohlberg Ventures. Kohlberg Ventures' corporate address is and at all times was 3000 Alpine Road, Portola Valley, CA. Kohlberg Ventures never has manufactured any products, nor has it ever had officers or directors. Neither CEP Inc. nor CEP LLC was a subsidiary of Kohlberg Ventures. In February 2013, Kohlberg Ventures made its only investment in CEP Inc. by purchasing Series F stock, after which Kohlberg Ventures owned approximately 3% of the total outstanding shares of CEP Inc. At the time of the employment terminations at issue in the case, various entities controlled by James Kohlberg owned a total of approximately two-thirds of CEP Inc. These entities, each of which James Kohlberg was either the sole owner or controlling shareholder, were: The James A. Kohlberg Revocable Trust, Bay Area Holdings Inc., KCEP Acquisition Company LLC, KCEP 2 Acquisition Company LLC ("Kohlberg Entities"), in addition to the shares owned by Defendant Kohlberg Ventures LLC. Kohlberg Ventures has never had an ownership interest in or right to control any of these Kohlberg Entities. Nonetheless, in a March 30, 2014 letter to Samsung Everland, a potential ClearEdge customer, Kohlberg stated that "As you may know, Kohlberg Ventures, LLC and its affiliates ('KV') is the majority shareholders of ClearEdge, in which we began investing in 2004. Over this period, KV has invested over $130,000,000 million in the company." On March 10, 2014, Kohlberg Ventures loaned $5 million dollars to CEP Inc. to address CEP Inc.'s near-term financing needs. Thus, its financial involvement with ClearEdge was limited to its Series F investment in and subsequent $5 million loan to CEP Inc. Neither CEP Inc. nor CEP LLC was a subsidiary of Kohlberg Ventures. Id. Mr. Wojciechowski was an employee of ClearEdge in its South Windsor Facilities. On April 25, 2014, ClearEdge terminated Wojciechowski without notice. Six days later, on May 1, 2014, ClearEdge filed for bankruptcy. Mr. Wojciechowski filed an adversary class action against ClearEdge in bankruptcy court, alleging that CEP LLC and CEP Inc. were a "single employer" under the WARN Act and that it violated the Act when it fired him and other employees without the 60-day advance notice required by the Act. Wojciechowski entered into a settlement agreement with both ClearEdge entities in which he and the class released all claims they had against them and their respective estates, "excluding any third parties which may or may not be affiliated with Defendants ClearEdge Power, Inc. and ClearEdge Power LLC, including but not limited to Kohlberg Ventures LLC." Kohlberg Ventures was not involved in the bankruptcy proceedings or in settlement negotiations. The bankruptcy court approved the settlement agreement, the ClearEdge bankruptcy estate paid a portion of the class members' WARN Act wages and benefits, and the case closed soon thereafter. Mr. Wojciechowski, on behalf of himself and a certified class, then filed the putative class action on Nov. 11, 2016, seeking from Kohlberg Ventures, as a "single employer" with ClearEdge, an award for the balance of the WARN Act wages and benefits, i.e., what the Class is owed under the Act less the amount received from the ClearEdge estate. In his Complaint, ECF No. 1, Wojciechowski seeks to recover damages for alleged violations of the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. Sections 2101-2109. He alleges that Kohlberg Ventures, his employer ClearEdge Power, LLC ("CEP LLC") and its owner, ClearEdge Power, Inc. ("CEP Inc.") constitute a "single employer" under the WARN Act and are liable for violation of the Act's notice requirement. On Feb. 7, 2017, Kohlberg Ventures moved to dismiss Wojciechowski's claim on the basis of claim preclusion, and, on April 11, 2017, the district court granted Kohlberg's motion with prejudice. The Ninth Circuit reversed. It held that claim preclusion does not bar Wojciechowski's current claim because the settlement agreement -- in particular, the intent of the settling parties -- determines the preclusive effect of the previous action and the settlement agreement explicitly did not release Wojciechowski and the class' claims against Kohlberg. It stated in a footnote that, while liability under the WARN Act extends only to a person's "employer," 29 U.S.C. Section 2104(a)(1), the term "employer" may include "parent and subsidiary companies depending on the degree of their independence from one another and considering (i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations. On May 8, 2019, the case was remanded and reassigned to the undersigned. On Nov. 4, 2019, Wojciechowski's Class Certification Motion was granted, certifying a class comprised of Wojciechowski and all similarly situated former employees who worked at or reported to one of ClearEdge Power's Facilities in Connecticut, who were terminated without cause on or about April 25, 2014 and within 30 days of that date or who were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered on April 25, 2014. Kohlberg Ventures has made the instant motion seeking an order granting summary judgment as a matter of law on the grounds that "single employer" status is not a basis for imposing joint liability pursuant to the WARN Act and that, in any event, Kohlberg Ventures was not the employer of Wojciechowski or the class. A. The Requirements of the WARN Act Magistrate Judge Hixon explains that the WARN Act requires certain employers to provide 60-day' notice to employees prior to a "plant closing" or a "mass layoff." An employer who fails to comply with the WARN Act's provisions is liable to each affected former employee for back pay and benefits for up to sixty days, plus attorney's fees. There is no dispute that the reduction in force and subsequent closure of ClearEdge's South Windsor plant triggered the Act's notice requirement and that such notice was not provided to Wojciechowski and the class. B. "Single Employer" Status Determines Coverage by the WARN Act Magistrate Judge Hixon holds that Kohlberg Ventures' argument that a determination of status as a "single employer" cannot form the basis of a subsequent finding of liability is going a step too far. If the WARN Act applies to an employer's conduct, then violation of the WARN Act subjects that employer to liability to those hurt by such conduct. There is no dispute that the WARN Act applies to ClearEdge and that, with only one Member and one Manager, Kohlberg Ventures would not, on its own, be covered by the Act. However, if ClearEdge and Kohlberg Ventures are determined to be a single employer, the WARN Act would apply equally to Kohlberg Ventures. C. The "Single Employer" Test Magistrate Judge Hixon discusses each of the "single employer" factors, reserving the "de facto control" discussion for last, and turning finally to what the inquiry "ultimately depends on," that is, whether the totality of circumstances demonstrate an arms-length relationship between the companies. He finds that (i) Kohlberg Ventures' minimal ownership interest in ClearEdge and relatively small loan weigh against finding that Kohlberg Ventures and ClearEdge were a "single employer"; (ii) Kohlberg knew or recommended some of the other Board members, that Kohlberg and Eastburn served on multiple Board committees, that Eastburn served for a few months as interim COO -- none of these facts may reasonably be interpreted to indicate the high degree of integration that would tip the common directors and officers factor in favor of a finding that the companies were a "single employer"; (iii) without even a scintilla of evidence contradicting the presumption of actions taken in appropriate roles, Wojciechowski's arguments are no more than pure argument; (iv) no inference has thus been created that the Kohlberg Ventures' and ClearEdge's operations bore any relationship whatsoever to each other, much less a relationship of dependency; (v) Wojciechowski's central argument for Kohlberg Ventures' de facto control of ClearEdge fails, as he has failed to establish any genuine issue of material fact; and (vi) Kohlberg Ventures is not subject to liability alongside ClearEdge for failure to provide the statutorily required notice. Based on the analysis, Magistrate Judge Hixon grants Ventures' Motion for Summary Judgment on Wojciechowski's WARN Act claim and denies as moot Wojciechowski's Cross-Motion for Summary Judgment. He orders the parties to meet and confer and file a proposed form of judgment within 14 days. If they cannot agree on a proposed form of judgment, then within 14 days they will file competing proposed forms of judgment and a joint letter brief not to exceed five pages setting forth their respective positions. A full-text copy of the Court's April 9, 2021 Summary Judgment is available at https://tinyurl.com/595m9syw from Leagle.com. MDL 2968: Cooper vs. Generali Insurance Row Transferred to S.D.N.Y ------------------------------------------------------------------ In IN RE: GENERALI COVID-19 TRAVEL INSURANCE LITIGATION, MDL No. 2968, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring Cooper et al. v. Generali Global Assistance, Inc. et al. to the U.S. District Court for the Southern District of New York and, with the consent of that court, assigned them to Judge John G. Koeltl for coordinated or consolidated pretrial proceedings. Said litigation involves common factual issues arising from Generali travel insurance coverage that consumers purchased alongside rental housing on vacation rental websites. Plaintiffs contend that they were unable to travel during the COVID-19 pandemic and cancelled their trips. Generali allegedly has denied coverage under the policies. The panel determined that this action involves common questions of fact with the actions previously transferred to MDL No. 2968, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation and that the Southern District of New York was an appropriate forum for actions arising from Generali travel insurance coverage that consumers typically purchased alongside rental housing on vacation rental websites. The Cooper case therefore falls within the MDL's ambit. A full-text copy of the Court's March 31, 2021 Transfer Order is available at https://bit.ly/3tuD8LE MDL 2969: Udesky v. Erie Transferred to W.D. Pa. ------------------------------------------------ In the case, IN RE: ERIE COVID-19 BUSINESS INTERRUPTION PROTECTION INSURANCE LITIGATION, MDL No. 2969, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring Steven A. Udesky, OD and Associates P.C. v. Erie Insurance Property & Casualty Company, (N.D. Ill. C.A. No. 1:20-04994) to the U.S. District Court for the Western District of Pennsylvania and, with the consent of that court, assigned them to Judge Mark R. Hornak for coordinated or consolidated pretrial proceedings. Plaintiff Steven A. Udesky moved to vacate the panel's order that conditionally transferred said case to the Western District of Pennsylvania for inclusion in MDL No. 2969. Defendant Erie Insurance Property & Casualty Company and plaintiffs in eight actions pending in MDL No. 2969 oppose the motion. In support of its motion to vacate, Plaintiff argues that the said case does not share common questions of fact with the actions in the MDL but rather alleges that it was insured under a commercial property insurance policy issued by Erie and that Erie denied plaintiff coverage for business interruption losses allegedly caused by loss of business and governmental closure orders related to the COVID-19 pandemic. Plaintiff also argues that transfer will not enhance the convenience of the parties or the efficiency of the litigation because the witnesses in the said case, including the Erie claims adjustor, are located in the Northern District of Illinois. Said litigation involves insurance claims for coverage of business interruption losses caused by the COVID-19 pandemic and the related government orders suspending, or severely curtailing, operations of non-essential businesses. The Panel held that Erie Insurance is a regional carrier that encompasses thirteen jurisdictions and the actions share common factual allegations that Erie wrongfully denied policyholders' claims for business interruption protection insurance. Thus, these actions present common factual and legal questions that support centralization and to promote the just and efficient conduct of the actions. Erie argued that centralization is not appropriate because the actions involve different claims and different types of businesses but the panel decided that the presence of additional or differing legal theories is not significant. A full-text copy of the Court's April 1, 2021 Transfer Order is available at https://bit.ly/32rqe5k MDL 2972: Two Blackbaud Data Breach Cases Transferred to D.S.C. --------------------------------------------------------------- In the case IN RE: BLACKBAUD, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 2972, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring two actions, one from the U.S. District Court for the District of Minnesota, and one from the U.S. District Court for the Western District of Washington, to the U.S. District Court for District of South Carolina and, with the consent of that court, assigned them to J. Michelle Childs for coordinated or consolidated pretrial proceedings. These actions involve a ransomware attack and data security breach into Blackbaud's systems in early 2020 that allegedly compromised the personal information of consumers doing business with entities served by Blackbaud's cloud software and services. Plaintiffs in the centralized actions allege that the Blackbaud clients impacted by the data breach include numerous schools, universities, healthcare providers and nonprofit organizations, and that the consumers who provided their personal information to those entities are at a risk of identity theft and fraud. Defendants Harvard and Allina Health System allegedly are two Blackbaud clients affected by the data breach. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary, rules the Panel. A full-text copy of the Court's March 30, 2021 Transfer Order is available at https://bit.ly/3wZb59n MDL 2974: Two Paragard IUD Liability Suits Transferred to N.D. Ga. ------------------------------------------------------------------ In the case IN RE: PARAGARD IUD PRODUCTS, LIABILITY LITIGATION, MDL No. 2974, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, has entered an order transferring two actions, one from the U.S. District Court for the Eastern District of New York, and one from the U.S. District Court for the Northern District of West Virginia, to the U.S. District Court for the Northern District of Georgia and, with the consent of that court, assigned them to Judge Leigh Martin May for coordinated or consolidated pretrial proceedings. Defendants in the two actions moved to vacate the panel's order that conditionally transferred these actions to the Northern District of Georgia for inclusion in MDL No. 2974. Plaintiffs in both actions oppose the motions. These actions involve common allegations that the Paragard intrauterine device (IUD) has a propensity to break upon removal, causing complications and injuries, including surgeries to remove the broken piece of the device, infertility and pain. The actions, thus, implicate questions concerning the device's development, manufacture, testing, labeling and marketing. The Panel held that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary. A full-text copy of the Court's April 1, 2021 Transfer Order is available at https://bit.ly/2Qv0gLo MDL 2984: Five Folgers Mislabeling Suits Consolidated in W.D. Mo. ----------------------------------------------------------------- In the case IN RE: FOLGERS COFFEE MARKETING AND SALES PRACTICES LITIGATION, MDL No. 2984, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers five cases, two in the U.S. District Court for the Central District of California and one each in the U.S. District Court for the Southern District of Florida, the U.S. District Court for the Northern District of Illinois and the U.S. District Court for the Western District of Missouri, to the latter mentioned court and with the consent of that court, assigned it to Judge Beth Phillips for coordinated or consolidated pretrial proceedings. These putative class actions assert similar claims for misrepresentation, breach of warranty, unjust enrichment, and/or violation of state consumer protection laws, and the Plaintiffs seek to represent overlapping nationwide and statewide classes of purchasers of Folgers coffee products. Folgers is alleged of mislabeling the number of servings that can be made from its coffee canisters. Folgers Coffee is a brand of coffee of the food and beverage division of the J.M. Smucker Company. The panel concluded that the Western District of Missouri is an appropriate forum as this is a geographically central district and will provide a readily accessible and convenient forum for this nationwide litigation and centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues, and conserve the resources of the parties, their counsel and the judiciary. Plaintiffs in the Central District of California and the Northern District of Illinois initially moved to centralize this litigation in the Central District of California. Defendants The Folger Coffee Company, The J.M. Smucker Company and Walmart, Inc. do not oppose centralization. A full-text copy of the Court's April 1, 2021 Transfer Order is available at https://bit.ly/3drYvI2 MDL 2985: Six Apple App Gambling Suits Transferred to N.D. Cal. --------------------------------------------------------------- In the case IN RE: APPLE INC. APP STORE SIMULATED CASINO-STYLE GAMES LITIGATION, MDL No. 2985, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers six cases, one each in the U.S. District Court for the Northern District of Alabama, the U.S. District Court for the District of Connecticut, the U.S. District Court for the Northern District of Georgia, the U.S. District Court for the Northern District of New York, the U.S. District Court for the Southern District of Ohio and the U.S. District Court for the Western District of Tennessee, to the U.S. District Court for the Northern District of California and with the consent of that court, assigned it to Judge Edward J. Davila for coordinated or consolidated pretrial proceedings. These putative class actions present common factual questions arising from the allegation that Apple, through its App Store, promotes, facilitates, and profits from simulated casino-style games that involve gambling in violation of state laws. Plaintiffs in all actions allege that casino-style app games in the App Store, such as slots, poker, blackjack, and bingo, allow users to purchase virtual coins or coin-like objects to play for the chance to win more playing time and that paying money for the chance to win more playing time constitutes unlawful gambling. Common factual questions include the nature of the game play within the same 200 or more involved apps and the function of in-app purchases, the nature of Apple's relationship with the third-party app developers, including Apple's process for reviewing and publishing apps, Apple's financial arrangements for distributing app-based revenue from the games and Apple's alleged promotion of the apps. Apple Inc. moved to centralize this litigation in the Northern District of California or, alternatively, the Central District of California. The panel concluded that the Northern District of California is the appropriate transferee district for this litigation since Apple's headquarters is in this district and that the employees with relevant knowledge and common documentary evidence are located there. A full-text copy of the Court's March 30, 2021 Transfer Order is available at https://bit.ly/3dmQAf2 MDL 2987: Centralization of GM Battery Liability Suits Denied ------------------------------------------------------------- In the case IN RE: GENERAL MOTORS LLC CHEVROLET BOLT EV BATTERY PRODUCTS LIABILITY LITIGATION, MDL No. 2987, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, denied the proposed transfer of three actions in the U.S. District Court for the Eastern District of Michigan and one each from the U.S. District Court for the Central District of California and the U.S. District Court for the Northern District of Illinois. Plaintiff Andres Torres (Torres v. General Motors LLC, C.A. No. 1:20-07109) moved to centralize this litigation in the Eastern District of Michigan or, alternatively, the Northern District of Illinois. All responding parties oppose centralization, including all plaintiffs in the remaining constituent actions and common defendant, General Motors LLC. These putative class actions against Defendant General Motors LLC share factual questions arising from GM's November 2020 recall of model year 2017-2019 Chevrolet Bolt electric vehicles due to the risk of fire posed by the car batteries when charged at or near full capacity and its interim remedy, which plaintiffs allege results in a loss of battery mileage in affected vehicles. The panel contends that centralization is not necessary at this time for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation stating that it may significantly reduce or even eliminate the multidistrict character of this litigation. A full-text copy of the Court's April 1, 2021 order is available at https://bit.ly/3gdBXMU MDL 2989: Various Short Squeeze Suits Transferred to S.D. Fla. -------------------------------------------------------------- In the case, IN RE: JANUARY 2021 SHORT SQUEEZE TRADING LITIGATION, MDL No. 2989, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers 10 cases in the U.S. District Courts for the Northern District of California, five cases in the U.S. District Courts for the Northern District of Illinois, four cases each in the U.S. District Courts for the Middle and Southern Districts of Florida, three in the U.S. District Courts for the District of New Jersey, two cases each in the U.S. District Courts for the Southern District of New York, Southern District of Texas, Central District of California and the District of Connecticut, one case each in the U.S. District Courts for the Southern District of California, District of Colorado, Northern District of Florida, Eastern District of Pennsylvania and the Eastern District of Virginia, all to the U.S. District Court for Southern District of Florida and with the consent of that court, assigned it to Judge Cecilia M. Altonaga for coordinated or consolidated pretrial proceedings. Robinhood provides a service allowing its customers to effectuate trades in the stock market, targeted at retail customers. Its platform is primarily app-based aims to provide everyone with access to the financial markets. Beginning in January of 2021, the stock prices for GameStop Corp. began to rise, based upon increased investor interest caused by the excessive short positions in the company. This event received significant coverage in the press. As investors began to look for the next GameStop, investor interest in certain stocks began to rise, causing their stock prices to increase. Until January 28, 2021, Robinhood allowed its users to take positions in these securities, both buying and selling. Upon information and belief, many Robinhood customers purchased these stocks in reliance on the continued availability of the Robinhood platform, allowing the customers to buy and sell when most advantageous to do so. However, on January 28, 2021, after the rise in GME gained widespread media coverage, Robinhood barred its customers from buying these stocks. Robinhood has announced it will allow limited transactions of these securities starting on January 29, 2021. This action artificially deflated the price of the effected stocks, harming all investors who held the stock, to the benefit of those holding short positions. Robinhood's interference in free trade left customers and retail investors with only two choices, either sell immediately at the rapidly falling price or hold and risk losing their entire investment. Plaintiffs used the Robinhood app to trade securities. The panel held that the Southern District of Florida is an appropriate transferee district for this litigation. There are ten actions pending in Florida, four of which are in the Southern District. With some of the events central to this litigation, in particular, Robinhood Securities' decision to restrict trading on the meme stocks, taking place in Florida, thus making the Southern District of Florida a relatively convenient and accessible forum, with the resources and the capacity to efficiently handle what may be a large and complex litigation. A full-text copy of the Court's April 1, 2021 Transfer Order is available at https://bit.ly/32bNP9Z ONIN STAFFING: Miles Files Suit Over Illegal Background Check ------------------------------------------------------------- Bobby Lee Miles, Jr., on behalf of himself and on behalf of all others similarly situated v. ONIN STAFFING, LLC, a Foreign Limited Liability Company, Case 3:21-cv-00275 (M.D. Tenn. April 5, 2021) seeks statutory damages, costs and attorneys' fees, and other appropriate relief under the the Fair Credit Reporting Act. The Defendant is a large, multi-state staffing agency offering industrial and clerical staffing. The Defendant routinely obtains and uses information in consumer reports to conduct background checks on applicants and employees. In July 2020, Plaintiff applied for employment with Defendant. Plaintiff was offered employment, accepted the job and was assigned to a Dorman warehouse facility. In October 2020, Plaintiff was informed that he was not eligible for continued assignment or employment at Dorman because he had failed a background check. The complaint alleges that the Defendant violated 15 U.S.C. Section 1681b(b)(3) by denying employment opportunities to Plaintiff based in part or in whole on the results of Plaintiff's consumer report without first providing him notice, a copy of the report, and a summary of his rights. [BN] The Plaintiff is represented by: Brian C. Winfrey, Esq. MORGAN & MORGAN, P.A. 810 Broadway, Suite 105 Nashville, TN 37203 Telephone: 615-928-9890 Fax: 615-928-9917 E-mail: BWinfrey@forthepeople.com - and - Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: 813-223-5505 Fax: 813-257-0572 E-mail: MEdelman@forthepeople.com PARTNER COMMS: Suit Applicants Seek Withdrawal from Ct. Proceedings ------------------------------------------------------------------- Partner Communications Company Ltd. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on March 25, 2021, for the fiscal year ended December 31, 2020, that the applicants in the putative class action suit related to content services for third parties notified that they wish to withdraw from the proceedings and the Court has yet to rule on the matter. On November 17, 2019, a claim and a motion to certify the claim as a class action were filed against the Company and two additional cellular operators. The claim alleges that the Company, as well as the other respondents collected money from its customers for content services for third parties, by using the means of payment that were given to the Company for the purpose of the cellular invoice payment for content services, without receiving consent from these customers prior to the charge, and/or without having documentation with respect to the customers' consent, unlawfully and against its license provisions and/or without the Company first ensuring that the customers received a document that complies with the Consumer Protection Law regarding the specific transaction for which it intends to collect money from them. The total amount claimed from each of the respondents if the lawsuit is recognized as a class action is NIS 400 million in addition to compensation in the amount of NIS 500 for each one of the group members for non-monetary damages which were allegedly caused to them. The group on whose behalf the claim was filed is all Partner subscribers who made such payments from September 2003 until the date that Partner is found to have stopped charging customers for such content services (from this group a group of customers charged for certain content services were excluded in light of other court decisions). In December 2020, the applicants notified that they wish to withdraw from the proceedings and the Court has yet to rule on the matter. Partner Communications Company Ltd. is a leading Israeli provider of telecommunications services (cellular, fixed-line telephony, internet and television services). Partner's ADSs are quoted on the NASDAQ Global Select Market(TM) and its shares are traded on the Tel Aviv Stock Exchange. PARTNER COMMS: Suit Over Unlawful Charges and Rates Underway ------------------------------------------------------------ Partner Communications Company Ltd. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on March 25, 2021, for the fiscal year ended December 31, 2020, that the company and 012 Smile continues to defend a suit related to allege unlawful charges and higher rates for international calls that are not included in their tariff plans. On August 6, 2018, a claim and a motion to certify the claim as a class action were filed against the Company and 012 Smile and at a later date, following a revision to the motion, also against Partner Land-Line. The claim alleges that the respondents unlawfully charge its customers different and higher rates for international calls that are not included in their tariff plans, than those set forth in its customer tariff chart on the 012 Smile website. The applicants noted that it cannot estimate the total amount claimed in the lawsuit, should the lawsuit be certified as a class action. The claim is still in its preliminary stage of the motion to be certified as a class action. No further updates were provided in the Company's SEC report. Partner Communications Company Ltd. is a leading Israeli provider of telecommunications services (cellular, fixed-line telephony, internet and television services). Partner's ADSs are quoted on the NASDAQ Global Select Market(TM) and its shares are traded on the Tel Aviv Stock Exchange. PREFERRED PRECISION: Morgan Sues Over Illegally Obtained Report --------------------------------------------------------------- DRAKE MORGAN, on behalf of himself and on behalf of all others similarly situated v. PREFERRED PRECISION GROUP, LLC and DAY STAR STAFFING LLC, Case No. 1:21-cv-00484-ACA (N.D. Ala., April 5, 2021) asserts violations of the Fair Credit Reporting Act, and seeks to hold PPG and Day Star accountable for violating Plaintiff's federally protected privacy rights. Day Star is a staffing agency. PPG is a manufacturing company. In November 2020, Mr. Drake applied for employment with PPG in Pell City, Alabama. He received a purported FCRA disclosure titled "Day Star Staffing Solutions Authorization." The Plaintiff said he did not understand he was authorizing Day Star to obtain his consumer report for employment purposes because the Day Star Authorization did not clearly and conspicuously disclose this fact. The same day he applied, Mr. Drake was extended an offer of employment. He reported for employment at PPG the next day, worked a full shift, and was praised for his performance. However, the next day, he received a phone call from PPG informing him his employment was terminated due to his background check. Mr. Drake asserts that he was denied employment opportunities based in part or in whole on the results of his consumer report without first providing him notice, a copy of the report, and a summary of his rights. The Plaintiff said he would not have permitted Day Star to obtain his consumer report if he knew it was being obtained illegally and would be used to deny him employment.[BN] The Plaintiff is represented by: Erby J. Fischer, Esq. MORGAN & MORGAN BIRMINGHAM, PLLC 2317 3rd Avenue North Birmingham, AL 35203 Telephone: (659) 204-6364 Fax: (659) 204-6389 E-mail: efischer@forthepeople.com - and - Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: 813-223-5505 Fax: 813-257-0572 E-mail: MEdelman@forthepeople.com SHAWS SUPERMARKETS: Bid to Dismiss First Amended Constantino Denied ------------------------------------------------------------------- In the case, PETER CONSTANTINO, Plaintiff v. SHAWS SUPERMARKETS INC., Defendant, Case No. 2:20-cv-00387-LEW (D. Me.), Judge Lance E. Walker of the U.S. District Court for the District of Maine denied the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. Plaintiff Constantino contends Shaw's makes its drivers perform work without receiving pay, in violation of Maine wage law. He seeks to pursue his claim as a class action. Shaw's removed the action to the Court, citing diversity and "complete preemption" in support of subject matter jurisdiction. In the case, the relevant document is an agreement entitled Collective Bargaining Agreement Between Teamsters Local Union No. 340 Affiliated with the International Brotherhood of Teamsters and Clifford W. Perham, Inc., a Subsidiary of Shaw's Supermarkets Inc. ("CBA"). Under the CBA, drivers typically receive pay based on mileage. When performing their work, drivers often engage in related activities like pre- and post-trip inspections, inventory and delivery tasks like checking pallet tags, and arranging and securing their loads. The mileage rate is either meant to provide compensation for these non-driving related activities or it is not. According to the arbitrator, it is. Driver downtime associated with "store unloading hours" is paid hourly. Additionally, when a driver completes fewer than 315 miles in a workday, the driver is compensated on an hourly basis, unless the sum of the per mile rate and the per hour rate for store unloading hours is greater. Mr. Constantino alleges drivers do not "earn any money whatsoever" for the related activities. He illustrates the logic of his claim with the example of two drivers who drive the same distance and receive the same pay yet work different hours. Constantino claims that the worker who spends more time on nondriving, related tasks spends that additional time working "without monetary compensation." Mr. Constantino and other drivers grieved the issue in 2018. The grievance was unsuccessful. Now, through the action filed in state court in September 2020, Constantino claims the wage provisions of the CBA are "an unfair agreement" that requires drivers to work without compensation, in violation of 26 M.R.S. Section 629; that Shaw's failed to provide full payment for all work in a timely fashion, in violation of 26 M.R.S. SectionSection 621-A; and that the liquidated damage multiplier and other penalties of 26 M.R.S. Section 626-A should enhance any recovery. Of note, Constantino's allegations concerning 26 M.R.S. Sections 621-A and 626-A are derivative of his Section 629 claim. In other words, absent a showing of entitlement to relief under the "unfair agreement" prohibition, Constantino cannot show a separate violation of the Section 621-A timing rule or grounds to access the additional remedies found in Section 626-A. The matter is before the Court on the Defendant's Motion to Dismiss Plaintiff's FAC. It argues the Plaintiff's state-law wage claim challenges the fairness of the Collective Bargaining Agreement and is, therefore, preempted by the Labor Management Relations Act, and that the claim is barred, in any event, by a prior final arbitration award addressed to the very issue the Plaintiff advances. Finally, the Defendant argues the state law claim is preempted by the Federal Aviation Administration Authorization Act. One question presented in the case is whether Shaw's mileage-based compensation scheme, a product of collective bargaining, if understood by the bargaining parties to afford fair compensation for driving-related but not actual driving time, would influence the merits of the state law dispute. This statement of the issue is like the statement offered by Constantino (i.e., that the only issue is "whether the employment scheme is legal under 26 M.R.S. Section 629, Response at 13), but it focuses on a potentially material issue of fact. Ordinarily, but for the CBA/arbitration overlay, a court of law would treat this as a genuine issue of fact before then moving on to evaluate the legality of the agreement. However, given the CBA/arbitration overlay, what ordinarily would have been a process of interpretation has become a process of consultation. Judge Walker arrives at that conclusion through a somewhat circuitous path. A. LMRA Complete Preemption In Rueli v. Baystate Health, Inc., the First Circuit created a framework in which hourly workers should be able to evade complete preemption under the Labor Management Relations Act, 29 U.S.C. Section 185(a), if they are "able to vindicate their claims with proof of the employer's actual knowledge of their unpaid hours," which, at the pleading stage, would simply require that plaintiffs allege a factual basis "for actual knowledge of all of the unpaid hours worked." Rueli v. Baystate Health, Inc., 835 F.3d 53, 62 (1st Cir. 2016). But because the Rueli plaintiffs did not allege a basis for the employer's actual knowledge of the entire range of allegedly uncompensated work hours, the First Circuit decided it would be necessary to look to the CBA to understand whether the employer would have had reason to anticipate that work was being performed without pay given certain "permission and management rights provisions" in the CBA that informed that very inquiry. Mr. Constantino cites this line-drawing and propounds that his state law wage claim must evade preemption under the Rueli rule because he has alleged (and it is beyond dispute) that Shaw's knows he does certain work other than driving, not all of which is compensated on an hourly basis. Judge Walker not convinced that Rueli directs the outcome in the case. The Rueli Court considered a claim for unpaid hours in the context of an hourly-rate compensation plan. The Circuit Court was at pains to explain why an hourly worker complaining of unpaid hours of work should be barred access to remedies other than CBA remedies. Judge Walker, on the other hand, considers a claim that arises out of the mileage-based component of a larger compensation plan, a scenario that asks not whether the employer knew the extent of the work employees engaged in, but whether the parties to the CBA all understood that the mileage-based compensation scheme would provide fair and adequate compensation for certain non-driving tasks. In short, Rueli is not on point. B. Arbitral Award as Final and Binding The next question is whether the parties to the CBA agreed to address even this state law wage dispute in final, binding arbitration. Shaw's argues Constantino's access to a judicial forum is foreclosed because his claim has already been resolved in arbitration. The argument is based, in part, on the notion that Constantino's claim is not really a state law claim at all, but instead arises under Section 301 of the LMRA. Judge Walker holds that that is not the claim Constantino asserts and the argument is, consequently, beside the point. Although the arbitrator purported to resolve the state law controversy in her arbitration award, Article 4 did not empower the arbitrator to provide any relief under state law if such relief would be inconsistent with the CBA. Merits preemption is not available to Shaw's under Article 4 precisely because merits relief was not available to Constantino in the arbitral forum. Because subsection (j) of Article 4 did not empower the arbitrator to accept a legal theory at odds with the terms of the CBA, it does not bar this later proceeding concerning rights purportedly in conflict with the CBA. C. FAAAA Preemption (Federal Aviation Administration Authorization Act of 1994) Like a child intent on cleaning her plate, Shaw's left the best morsel for last. Shaw's argues the state law claim is preempted by the Federal Aviation Administration Authorization Act of 1994. Judge Walker finds that Constantino's legal theory that 26 M.R.S. Section 629 has something to say about the way drivers are compensated relates to transportation and would likely impact the price, route, or service of a motor carrier, though the significance of the impacts is less clear. It does not matter that Section 629, in the abstract, would not ordinarily be preempted given the breadth of its application to all manner of employers in general. What matters is that Constantino is attempting to take a very broad and general statute and graft onto it a very transportation-specific prohibition. Shaw's states in its Motion that Constantino has failed to state a claim. However, none of the headings in its Motion present the basic underlying question whether Constantino has asserted a plausible basis for relief under Maine law, Judge Walker finds. He says that is a concern in the case. The statute in question prohibits "unfair agreements." One kind of unfair agreement -- the one Constantino relies on pp is an agreement that requires an employee to work "without monetary compensation." Mr. Constantino bases the class action entirely on those gossamer statutory strands. Section 629 says naught about driver or mileage-based compensation. Agreements that produce day-to-day pay inequities among employees are neither addressed nor prohibited in this statute. As far as Judge Walker can tell, the Maine Legislature has not prohibited the law of averages for employee compensation calculated by means other than a fixed hourly rate. If it had, then one would think mileage-based compensation would be strictly forbidden, even if there were no non-driving tasks, because it would be a rare occasion in which two drivers would ever drive the same distance in the same time. In any event, the matter survives the instant motion. Conclusion In light of the foregoing, Judge Walker dismissed as moot the Defendant's Original Motion to Dismiss. He denied the Defendant's Motion to Dismiss First Amended Complaint. Given the need to resolve the FAAAA preemption issue, the parties are ordered to meet and confer so that they can present the Magistrate Judge with a suitable request to modify the schedule along those lines. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/mdcw9fmw from Leagle.com. TOPA INSURANCE: Caribe Class Suit Dismissed Without Leave to Amend ------------------------------------------------------------------ In the case, CARIBE RESTAURANT & NIGHTCLUB, INC., individually and on behalf of all others similarly situated, Plaintiff v. TOPA INSURANCE COMPANY, Defendant, Case No. 2:20-cv-03570-ODW (MRWx) (C.D. Cal.), Judge Otis D. Wright, II, of the U.S. District Court for the Central District of California granted Topa's Motion to Dismiss Caribe's First Amended Complaint without leave to amend. Plaintiff Caribe initiated the class action against Defendant Topa alleging breach of contract and seeking declaratory judgment for insurance coverage. Caribe owns and operates La Luz Ultralounge, a restaurant and nightclub located in Bonita, California. Caribe purchased an insurance policy from Topa for the policy period of May 18, 2019, through May 18, 2020. In March 2020, due to the COVID-19 pandemic, the State of California and County of San Diego ordered "the closure of bars" and "banned onsite dining." In May 2020, San Diego County "permitted the resumption of onsite dining" subject to restrictions. Caribe alleges that, as a result of these civil authority orders, it was forced to "suspend or reduce business" at La Luz. Caribe also alleges that COVID-19 "impaired Caribe's property by making it unusable in the way that it had been used before." Caribe alleges that its losses are covered under the Policy and identifies four specific provisions: "Business Income"; "Extra Expense"; "Civil Authority"; and "Duties in the Event of Loss" ("Sue and Labor" provision). Caribe filed claims for coverage under these provisions, which Topa denied. Accordingly, Caribe commenced the litigation against Topa asserting that denial of coverage was a breach of contract and seeking declaratory judgment. Topa's motion to dismiss followed. Topa argues the Policy provisions Caribe cites provide coverage only for "direct physical loss of or damage to" Caribe's property and Caribe cannot recover under any of these provisions because it fails to allege "any 'direct physical loss' of or damage to" the insured premises. Caribe, on the other hand, insists that it has sustained "direct physical loss" of its property because it was "forced to suspend or reduce business at its location due to COVID-19" and the resultant safety orders. Judge Wright agrees with Topa. He says while he is sympathetic that Caribe is suffering economically from the unprecedented COVID-19 pandemic, an economic business impairment does not qualify as a physical loss or damage to the premises. As Caribe does not allege direct physical loss or damage, its claims were not covered and its causes of action for breach of contract and declaratory judgment fail. Thus, the Judge granted Topa's Motion to Dismiss. Additionally, ge finds that leave to amend would be futile because allegations of other facts consistent with the FAC could not cure these deficiencies. As such, dismissal is without leave to amend. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/3xs8d3ud from Leagle.com. TOYOTA MOTOR: Court Narrows Claims in Rav4 Hybrid Fuel Tank Suit ---------------------------------------------------------------- In the case, IN RE TOYOTA RAV4 HYBRID FUEL TANK LITIGATION, Case No. 20-cv-00337-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted in part and denied in part Toyota's motion to dismiss the Plaintiffs' consolidated class action complaint. The putative consumer class action is brought by 36 Plaintiffs from 28 states on behalf of a nationwide class of "all persons who purchased or leased" 2019 and 2020 Toyota RAV4 Hybrid vehicles, as well as 28 subclasses based on the state in which the Vehicles were purchased or leased. The Plaintiffs allege that Defendant Toyota Motor Sales, U.S.A., Inc. ("TMS") falsely represented in marketing and ownership materials that the Vehicles' fuel tank capacity is 14.5 gallons when it is actually 8-11 gallons, thus significantly reducing the Vehicles' range on a single tank of gas. The Plaintiffs bring 90 state-law claims against Toyota for breach of express warranty, breach of the implied warranty of merchantability, violations of various consumer protection and unfair competition statutes, and unjust enrichment. They seek damages as well as injunctive and declaratory relief. The Plaintiffs originally filed a class action complaint on Jan. 15, 2020. Over the following months, several cases from elsewhere in the District were related to, and eventually consolidated with, the instant case. Pursuant to these developments, the Plaintiffs filed their 198-page consolidated class action complaint on Sept. 14, 2020. Pending before the Court is Toyota's motion to dismiss the Plaintiffs' consolidated class action complaint, filed on Oct. 14, 2020. Toyota's motion to dismiss is divided into seven main parts. Toyota first argues that the Plaintiffs lack standing "because they do not plausibly allege an actual, non-speculative injury" from the purported fuel-tank defect, such as an imminent "safety hazard," "out-of-pocket costs for repairs," or "diminution in value" on resale. Second, the Plaintiffs cannot plead breach of express warranty as "TMS' express warranty in question does not cover design defects" but only manufacturing defects. Third, the Plaintiffs' claims for breach of the implied warranty of merchantability are also inadequate because "they make no plausible allegations that the vehicles are unfit for their ordinary purpose." Fourth, the Plaintiffs fail to state consumer-protection or unfair-competition claims because, inter alia, (a) the claims are preempted by federal law, (b) Plaintiffs fail to allege reliance on Toyota's marketing materials, and (c) various state-specific requirements have not been met. Fifth, the Plaintiffs' unjust enrichment claim fails because they erroneously seek to apply California law to the entire class and, in any event, California doesn't recognize a standalone claim for unjust enrichment. Sixth, the Plaintiffs lack standing to seek injunctive and declaratory relief since none of them "alleges that s/he is likely to purchase another Subject Vehicle." And seventh, the Plaintiffs cannot represent a nationwide class since "they have no standing to represent consumers in states where Plaintiffs do not reside and did not purchase a Subject Vehicle." The Court previously ruled on a number of these issues at the motion hearing of Dec. 18, 2020; it now reiterates those conclusions and resolves the issues it declined to decide at the hearing. Judge Chen finds that (i) the Plaintiffs plausibly allege that their vehicles suffer from an existing, provable defect of substantially diminished fuel-tank capacity, and that this defect is significant enough to make the vehicles worth less than they would be without the defect; (ii) the complaint alleges a design, rather than a manufacturing, defect and that Plaintiffs' express warranty claims are therefore not covered by the New Vehicle Limited Warranty ("NVLW"); (iii) the Plaintiffs' express warranty claims are not precluded on the ground that the complaint incidentally refers to MPG estimates in describing the fuel tank defect; (iv) the Plaintiffs have plausibly pled that Toyota had actual knowledge of the fuel tank defect by early 2019; and (v) the Plaintiffs have failed to state an implied warranty claim. Judge Chen also finds that (i) the Plaintiffs' argument that that their "claims for relief are predicated on TMS' misrepresentations and omissions regarding the RAV4's 14.5 gallon fuel tank capacity," not the EPA's miles-per-gallon estimate, provides a sufficient basis for resolving the issue; (ii) while the complaint adequately alleges that Toyota's misleading advertisements exist (and Toyota acknowledged that the company lists the Vehicles' fuel tank capacity as 14.5 gallons in sales brochures and perhaps "in some advertisements," the complaint fails to establish that the Plaintiffs saw, heard, or acted on them; (iii) the Plaintiffs have adequately alleged Toyota's exclusive knowledge of the defect at the time of sale as part of their omission-based consumer protection claims; and (iv) the Plaintiffs' omission-based consumer protection claims are barred insofar as they require a showing of active concealment. As to consumer protection claims, among other things, Judge Chen holds that (i) given that the Court credits the Plaintiffs' allegation that Toyota had presale knowledge of the fuel tank defect, it is plausible that the company's subsequent partial misrepresentations about fuel tank capacity entailed the "suppression" of material information that the tank could not fill to capacity; (ii) the Plaintiffs have plausibly pled knowledge and intent on Toyota's part such that their claims are not precluded on the basis of the Virginia Act's intent requirement; and (iii) the Plaintiffs' allegations that they have suffered damages is plausible for purposes of the motion to dismiss; (iv) Toyota fails to respond to these arguments in its reply brief, suggesting that it has abandoned the motion as to this aspect of the Florida Act; (v) he rejects Toyota's argument that the Idaho Act requires immediate privity between the Plaintiff and the Defendant; (vi) Toyota has failed to demonstrate that its conduct is exempt from the Michigan Consumer Protect Act; (vii) he agrees with Toyota insofar as the complaint fails to allege, with adequate specificity, that the Plaintiffs were aware of, and relied on, Toyota's alleged misrepresentations about fuel tank capacity in the company's marketing materials; (viii) the Plaintiffs are incorrect in arguing that Mr. McPhie "alleges that he and members of the New Hampshire class received misrepresentations regarding the RAV4s in New Hampshire"; and (ix) the economic loss doctrine does not preclude Pennsylvania Plaintiffs' Unfair Trade Practices and Consumer Protection Law claims. Finally, as to unjust enrichment claim, injunctive and declaratory relief, and nationwide class claims, Judge Chen holds that (i) the California's interest in applying its law to residents of foreign states is attenuated" and that "each class member's unjust enrichment claim should be governed by the unjust enrichment laws of the jurisdiction in which the transaction took place; (ii) because the Plaintiffs fail to allege that they either plan or are likely to purchase another Vehicle, they do not presently have Article III standing to pursue injunctive or declaratory relief as sought in the complaint; and (iii) he defers ruling on the Plaintiffs' nationwide class allegations until a later stage of the proceedings. Based on the foregoing, Judge Chen granted in part and denied in part Toyota's motion to dismiss the Plaintiffs' consolidated class action complaint. He (i) denied as to the Plaintiffs' standing to assert claims for damages; (ii) granted as to the Plaintiffs' express warranty claims under the NVLW (without leave to amend); (iii) granted as to the Plaintiffs' express warranty claims under Toyota's marketing materials and Vehicle owner's manuals (with leave to amend); (iv) granted as to the Plaintiffs' implied warranty of merchantability claims (without leave to amend); (v) granted as to the Plaintiffs' affirmative misrepresentation claims under certain state consumer protection laws (with leave to amend); (vi) denied as to the Plaintiffs' fraudulent omission claims under certain state consumer protection statutes; (vii) granted in part and denied in part as to the Plaintiffs' consumer protection claims on various state-specific grounds; (vii) denied as to California the Plaintiffs' unjust enrichment claim; (viii) granted as to non-California Plaintiffs' unjust enrichment claims (without leave to amend); (ix) granted as to the Plaintiffs' standing to assert claims for injunctive and declaratory relief (without leave to amend); and (x) denied as to the Plaintiffs' nationwide class allegations. The Plaintiffs will file their amended complaint within 30 days from the date of Judge Chen's Order. His Order disposes of Docket No. 66. A full-text copy of the Court's April 9, 2021 Order is available at https://tinyurl.com/3hf345da from Leagle.com. ********* 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. 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