/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210604.mbx C L A S S A C T I O N R E P O R T E R Friday, June 4, 2021, Vol. 23, No. 106 Headlines ALASKA AIRLINES: Bid for Summary Judgment in Clarkson Suit Granted AMAG PHARMACEUTICALS: Zamfirova Suit Dismissed Without Prejudice AMAZON.COM INC: Faces USERRA Suit Over Unpaid Military Leave AMERICAN AIRLINES: July 23 Extension to File Class Cert. Bid Tossed APPLE INC: Faces Class Action Suit Over Anti-Competitive App Store APPLUS TECH: CT Drivers' License Holders Sue Over Data Breach ARRAY BIOPHARMA: Voulgaris Class Cert. Bid Denied w/o Prejudice ARRAY TECHNOLOGIES: ClaimsFile Reminds of July 13 Deadline ARRAY TECHNOLOGIES: Howard G. Smith Discloses Securities Class Suit BELMONT MANAGEMENT: Court OKs Final Collective Action Certification CELLCO PARTNERSHIP: Court Confirms Arbitration Award in Adell Suit CHEMOCENTRYX INC: ClaimsFiler Reminds Investors of July 6 Deadline CHIME FINANCIAL: Class Settlement in Richards Suit Has Final Nod CHURCHILL CAPITAL: Discloses Securities Class Action Lawsuit CLOUDERA INC: Consolidated Amended Securities Class Suit Dismissed CONTEXTLOGIC INC: ClaimsFiler Reminds of July 16 Deadline CONTEXTLOGIC INC: Rosen Law Reminds Investors of July 16 Deadline CREDIT SUISSE: Law Firm Joins Securities Class Action Lawsuit CREE INC: Briefing on Class Certification in Wedra Suit Extended DANIMER SCIENTIFIC: Glancy Prongay Reminds of July 13 Deadline DAPPER LABS: Rosen Law Discloses Securities Class Action Lawsuit DESIGNER BRANDS: Dismissal of Count I in LaGuardia TCPA Suit Denied DEVON ENERGY: Class Settlement in Price FLSA Suit Gets Approval DRESSER LLC: Court Denies Bid to Compel Depositions in Barton Suit DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending DXC TECHNOLOGY: Bid for Initial Certification in Forsyth Granted DXC TECHNOLOGY: California Consolidated Class Suit Dismissed EASTLAND MALL: Beaver Wins Final Class Certification Under FLSA EMERGENT BIOSOLUTIONS: Thornton Law Reminds of June 18 Deadline FIRST AMERICAN: Denial of Munro's Bid for Leave to Amend Affirmed FLEX LIMITED: Dismissal of Putative Class Suit Under Appeal FLINT, MI: Jones' Water Crisis Suit Dismissed With Prejudice FRANKLIN, TN: Partial Summary Judgment in Clarke Suit Affirmed GAIN CAPITAL: Zhang Suit Tossed Under Forum Non Conveniens Doctrine GENERAL MOTORS: Court Certifies Idaho Class in Siqueiros Suit GENIUS BRANDS: Hearing on Bid to Nix Class Suit Set for July 5 GGP INC: Court Dismisses Third Amended Stockholder Class Suit GREG GOSSETT: Non-Party Bid for Reconsideration in Ross Suit Nixed GX ACQUISITION: Celularity Merger Related Suits Underway HARVEST CAPITAL: Portman Ridge Merger Related Suits Ongoing HIDEAWAY HILLS: Residents One Step Closer to Class-Action Status I360 LLC: Court Dismisses Tag Suit Over Invasion of Privacy INTRUSION INC: Rosen Law Reminds Investors of June 15 Deadline INTUIT INC: Free File Suit Resolved on Non-Class Basis KONICA MINOLTA: Court Narrows Claims in Luense ERISA Class Suit KS STATEBANK: Class Settlement in Saliba Suit Gets Initial Approval LA SALLE UNIVERSITY: Title IX Attorney Hired by Volleyball Players LEXISNEXIS RISK: Class Settlement in Gaston Suit Has Final Approval LOUISIANA: Class of Medicaid-Eligible Youths Certified in AA v. LDH MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit MIDDLE TENNESSEE: Form of Class Notice in Hawkins Suit Approved MIJ INC: Conditional Certification of Class in Ford Suit Denied MYMD PHARMACEUTICALS: Liu Putative Class Suit Dismissed NATIONS RECOVERY: Class Settlement in Esposito Wins Final Approval NORDSON CORP: Settlement Reached in Ortiz Suit NORTONLIFELOCK INC: June 14 Trial Date on Securities Suit Vacated NVIDIA CORP: Dismissal of Securities Class Suit Under Appeal PAPA JOHN'S: Faces Suit Over Delivery Drivers' Improper Wage Pay PELOTON INTERACTIVE: Kessler Topaz Reminds of June 28 Deadline PORCH GROUP: Former Employee's Suit v. HireAHelper Underway PRECISION CASTPARTS: Judgment Issued on Murphy's Remaining Claims PROJECT O.H.R.: Class Certification Order in Kurovskaya Affirmed PROVENTION BIO: Pomerantz Law Reminds of July 20 Deadline PURECYCLE TECHNOLOGIES: ClaimsFiler Reminds of July 12 Deadline PURECYCLE TECHNOLOGIES: Theodore & Tennenbaum Suits Underway RITE AID: Loses Bid to Arbitrate Drug Pricing Class Action ROCK 'N PLAY: Opposition to Class Certification Bid Due June 16 SANDERSON FARMS: Broiler Chicken Grower Litigations Underway SANDERSON FARMS: Discovery in Antitrust Suit Ongoing SANDERSON FARMS: Discovery in La Fosse Putative Class Suit Ongoing SANDERSON FARMS: Discovery Ongoing in Jien Putative Class Suit SCWORX CORP: Bid to Nix Suit Over COVID-19 Rapid Test Kits Pending STEVENS INSTITUTE: Court Narrows Claims in Mitelberg Class Suit SUNWORKS INC: Vieyra Putative Class Suit Dismissed TARGET CORP: Faces Class Action Lawsuit Over Tampered Gift Cards TELIGENT INC: Continues to Defend Econazole Antitrust Litigation TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada TELIGENT INC: Settlement Reached in Okla. Police Pension Fund Suit THERMON GROUP: Settlement Reached in THS Heating Elements Suit UNION INSURANCE: Deer Mountain Class Suit Dismissed With Prejudice UNITED SERVICES: Court Upholds Substitution of Elter as Class Rep. UNITED STATES: Class Certified in Scott FTCA Suit v. BOP's MDC UNIVERSITY OF IOWA HOSPITALS: Judge Allows Workers to Join Suit UNIVERSITY PHYSICIANS: Loses Bid to Dismiss Butterfield Class Suit WEST VIRGINIA: Cheatham's Bid to Dismiss Class Complaint Junked WIRBICKI LAW: Loses Bid to Dismiss Bandele FDCPA Class Suit Asbestos Litigation ASBESTOS UPDATE: AMETEK Still Defends Asbestos-Related Suits ASBESTOS UPDATE: Chemours Co. Assumes 1,000 EID PI Lawsuits ASBESTOS UPDATE: Crane Has 29,407 Pending Claims at March 31 ASBESTOS UPDATE: Exelon Had $88MM Est. Liabilities at March 31 ASBESTOS UPDATE: Freeport-McMoRan Still Defends Exposure Claims ASBESTOS UPDATE: Harsco Faces 17,192 PI Claims at March 31 ASBESTOS UPDATE: Meritor Inc. Records $75MM in Future Claims ASBESTOS UPDATE: ODP Corp.'s OfficeMax Faces Various PI Claims ASBESTOS UPDATE: Park-Ohio Holdings Still Defends 121 Cases ASBESTOS UPDATE: Roper Tech. Still Defends Asbestos Claims ASBESTOS UPDATE: Sempra Energy's Subsidiaries Defends PI Lawsuits ASBESTOS UPDATE: Trane Technologies' Subsidiaries Faces PI Suits ASBESTOS UPDATE: Transocean's Subsidiary Defends 256 PI Lawsuits ASBESTOS UPDATE: Xylem Inc. May Still Face Exposure Claims BESTWALL LLC: Subpoenas Served on 9 Asbestos Trusts Quashed ********* ALASKA AIRLINES: Bid for Summary Judgment in Clarkson Suit Granted ------------------------------------------------------------------ In the case, CASEY CLARKSON, Plaintiff v. ALASKA AIRLINES, INC., HORIZON AIR INDUSTRIES, INC., and ALASKA AIRLINES PENSION/BENEFITS ADMINISTRATIVE COMMITTEE, Defendants, Case No. 2:19-CV-0005-TOR (E.D. Wash.), Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington granted the Defendants' Motion for Summary Judgment. The matter arises from Plaintiff Clarkson's class action filed against Defendants Alaska and Horizon on Jan. 7, 2019. The Plaintiff was employed as an airline pilot for Horizon from November 2013 to November 2017, and thereafter was employed by Alaska. During the Plaintiff's employment with both Horizon and Alaska, he was an active member of the Washington Air National Guard. He typically performed military duty for approximately 10 to 12 days per month from November 2013 through June 2018. While employed by Horizon, the Plaintiff took the following periods of military leave: June 8-July 8, 2017; Sept. 9-14, 2017; and Oct. 1-26, 2017. Before taking military leave in June 2017, the Plaintiff was employed as a turboprop Captain; upon return from leave in July 2017, the Plaintiff was once again employed as a turboprop Captain. There is no evidence in the record that Horizon employed the Plaintiff in any position other than a turboprop Captain during the relevant time period. For each of the months the Plaintiff took military leave while employed by Horizon, he received 2.45 flight credit hours per day for each day he was on leave pursuant to Horizon's Virtual Credit policy, which was implemented in May 2017. The Virtual Credit policy applied to all forms of leave, military or otherwise. The Plaintiff's virtual credits were combined with his earned credits to determine his flight schedules, which were built and assigned using a Preferential Bidding System ("PBS"). He generated the minimum required credit hours to be assigned a Line Holder schedule for each month he took military leave, with the exception of July 2017; in that month, he was assigned a Reserve schedule. The schedule to which a pilot was assigned was based, in part, on a pilot's ability to meet a certain threshold of credit hours. Line Holder schedules required at least 70 credit hours. If a pilot could not meet the 70 credit hour minimum, a pilot would be assigned a Reserve schedule. Pilots assigned to Line Holder schedules fly specific trips whereas pilots assigned to Reserve schedules are on call for specific days. According to the Collective Bargaining Agreements ("CBAs"), a turboprop pilot assigned to a Line Holder schedule was guaranteed a minimum pay of 70 credit hours. Reserve schedules were guaranteed a minimum pay of 73 credit hours. In addition to provisions governing scheduling and compensation, the CBAs also governed leaves of absence, specifically for jury duty, sick leave, bereavement leave, military leave, and personal leave, and any compensation awarded during those leave periods. The parties dispute whether the Defendants' compensation practices for the covered forms of leave, including Horizon's Virtual Credit policy, comply with the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. Section 4301 et seq. The Plaintiff alleges the Defendants practices violate USERRA by continuing to pay employees who take comparable non-military leave their full wages but failing to pay employees who take military leave their full wages. He also alleges Defendant Horizon's Virtual Credit policy forced him into a lesser status than he held prior to his military leave, thereby denying him certain seniority-based rights and benefits that would have accrued but for his military leave. The Defendants argue they are not required to pay employees who take military leave nor do they provide any rights or benefits to employees who take non-military leave that are not also provided to employees who take military leave. Discussion I. Count IV - Paid Leave Claim Count IV alleges the Defendants fail to provide the Plaintiff and the other members of the Paid Leave Class the same rights and benefits for military leave that the Defendant provides to other employees who take non-military leave in violation of 38 U.S.C. Section 4316(b). The Defendants move for summary judgment as to Count IV on the grounds that neither USERRA nor its federal regulations require employers to pay employees who take military leave. Specifically, they argue there are no "rights and benefits" as defined by the applicable CBAs that are provided to employees who take non-military leave that are not also provided to employees who take military leave. They further argue military leave is not comparable to any other forms of leave provided in the applicable CBAs for the purposes of determining entitlement to "rights and benefits" under USERRA. The Plaintiff asserts employees who take non-military leave are provided the benefit of Loss of Pay protection while employees who take military leave are not afforded the same, resulting in lost wages. He also argues there are genuine issues of material fact as to whether other forms of non-military leave are comparable to military leave in terms of duration, purpose, and flexibility. A. Rights and Benefits Judge Rice explains that while the issue is not widely litigated, there seem to be two competing views among the courts as to whether the definition of "rights and benefits" includes a requirement for paid military leave. Some courts have found "the definition of 'rights and benefits' under USERRA embraces paid leave," citing White v. United Airlines, Inc., 987 F.3d 616, 621 (7th Cir. 2021). Other courts have concluded "the text of the USERRA Act unambiguously excludes paid military leave from its definition of 'rights and benefits,'" citing Travers v. FedEx Corp., 473 F.Supp.3d 421, 426 (E.D. Pa. 2020). The disagree ment among the courts centers on statutory interpretation. The Judge holds that both parties' arguments would require the Court to adopt an interpretation of the "rights and benefits" definition. However, he need not make such a determination. As the White court indicated, a factual inquiry as to whether the military leave is comparable to other forms of covered leave is also required for a claim under Section 4316(b). Therefore, the Judge will limit his ruling to the facts of this particular case and declines to adopt a specific interpretation of the "rights and benefits" definition. B. Comparable Forms of Leave The Department of Labor has identified several factors to assist in evaluating whether non-military leave is comparable to military leave. Those factors include the duration of the leave, the purpose of the leave, and the ability of the employee to choose when to take the leave. Id. Of those factors, the duration of the leave "may be the most significant." The Defendants argue the other forms of non-military leave covered by the relevant CBAs -- jury duty, bereavement, and sick -- are not comparable to military leave. The Plaintiff alleges there are issues of fact as to whether any of the other non-military leaves are comparable. Judge Rice holds that because pilots have a greater degree of control over their ability to take military leave and schedule around such leave, military leave is not comparable to other forms of leave covered by the CBAs. Military leave is automatically granted. This is not true of bereavement, sick leave, and vacation. Bereavement leave is granted with discretion or may be taken using unpaid personal leave or accrued sick days. Likewise, sick leave and vacation are not automatically granted, but can be taken using accrued paid days or by taking unpaid personal leave Based on the foregoing, there are no genuine issues of material fact as to whether military leave is comparable to other forms of leave covered by the CBAs; they are not comparable. Therefore, the Defendants are entitled to summary judgment with respect to Count IV. II. Counts I - III - Virtual Credit Claims Counts I to III pertain to Defendant Horizon's Virtual Credit policy. The Plaintiff seeks relief in his individual capacity for these claims. Count I alleges the Defendant's Virtual Credit policy provided the Plaintiff with fewer credit hours than he would have received but for his military leave, thereby failing to properly reemploy him upon his return, in violation of 38 U.S.C. Sections 4312(a), 4313(a)(1). Count II alleges the Defendant's Virtual Credit policy failed to treat military leave as continuous employment, thereby denying the Plaintiff his seniority-based rights and benefits, in violation of 38 U.S.C. Section 4316(a). It alleges the application of the Defendant's Virtual Credit policy led to the Plaintiff's demotion following his return from military leave in violation of 38 U.S.C. Section 4316(c). A. Counts I and III The Defendants move for summary judgment on Counts I and III on the grounds that the Plaintiff was never "demoted" or "discharged," he has no damages, and because he lacks standing as he is no longer employed by Horizon. The Plaintiff argues the Virtual Credit policy forced him to take Reserve schedule status, which he alleges is a lesser position than the Line Holder schedule he previously held, and that Plaintiff was harmed by being forced to work additional hours to achieve Line Holder status. Judge Rice finds a pilot's assignment to a Reserve schedule is not a demotion as contemplated by the statute and regulations. The Plaintiff generally retained the same "opportunities for advancement, working conditions, job location, shift assignment, responsibility, and geographic location" upon reemployment. The Plaintiff was a Captain of a turboprop aircraft when he left for military leave and he was reemployed as a Captain of a turboprop aircraft when he returned. The evidence shows the Plaintiff did not experience a significant change in job duties or responsibilities. His pay remained the same based on the number of flight hours Plaintiff flew during a bid period. The Plaintiff does not allege he was forced to relocate, that his working conditions changed, or that he was denied opportunities for advancement. His subjective preference for a certain flight schedule cannot overcome the evidence that he was reemployed in the same position he held prior to his military leave. Thus, the Defendants are entitled to summary judgment as to Counts I and III. The Plaintiff's arguments regarding loss of pay or loss of credit hours due to receiving a Reserve schedule are not relevant under Sections 4312 and 4313, which apply only at the instant of reemployment; the Plaintiff's alleged damages are better addressed under Secton 4316, which applies to actions or conditions after successful reemployment. B. Count II The Defendants seek summary judgment as to Count II on the grounds that the benefit the Plaintiff seeks -- Line Holder assignment -- is not a seniority-based benefit under the statute and because he was not disadvantage by Horizon's Virtual Credit policy. Te Plaintiff argues Line Holder assignment is a seniority-based benefit because it provides a greater minimum pay guarantee and a more predictable schedule, which is not provided to Reserve Line assignments. Judge Rice holds that granting the Plaintiff an increased recalculation and "premium pay" would effectively allow him to earn double income for his military service from both the United States military and the Defendant. USERRA requires only equal, but not preferential treatment of employees who take military leave. Thus, the Plaintiff is not entitled to compensation from Defendant beyond what is already provided by the Virtual Credit policy. Based on the foregoing, the Judge finds there are no genuine issues of material facts as to whether the assignment of Line Holder status is a seniority-based right or benefit. No reasonable fact finder could conclude the assignment of a pilot's schedule, based primarily on availability to fly in a Bid Period, was anything other than a bona fide work requirement. Therefore, the Defendants are entitled to summary judgment as to Count II. III. Liquidated Damages The Defendants seek summary judgment on the Plaintiff's claim for liquidated damages. The Plaintiff contends there is sufficient evidence to support a finding that the Defendants willfully violated USERRA. A court may require an employer to pay liquidated damages if the court determines the employer willfully failed to comply with the USERRA provisions. Having determined the Defendants did not violate the USERRA provisions at issue, the Plaintiff's arguments for liquidated damages are moot. The Defendants are entitled to summary judgment on the Plaintiff's claim for liquidated damages. Order Judge Rice granted the Defendant's Motion for Summary Judgment. He denied as moot the parties remaining motions. He vacated as moot the trial and all other hearings and deadlines. The District Court Executive is directed to enter the Order, enter Judgment for the Defendants, furnish copies to the counsel, and close the file. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/4tvus893 from Leagle.com. AMAG PHARMACEUTICALS: Zamfirova Suit Dismissed Without Prejudice ---------------------------------------------------------------- In the case, ZAMFIROVA, et al., Plaintiffs v. AMAG PHARMACEUTICALS, INC., Defendant, Civil Action No. 20-cv-00152 (D.N.J.), Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey granted the Defendant's motion to dismiss the Plaintiffs' Consolidated Amended Class Action Complaint. The putative class action arises out of the Defendant's marketing and sale of the prescription drug Makena to the Plaintiffs. AMAG is a pharmaceutical company that currently holds the rights to market and sell the prescription drug Makena. AMAG and previous companies have marketed and sold Makena to prevent premature births. The Plaintiffs are residents of California, New York, New Jersey, Kansas, Missouri, and Wisconsin who were "prescribed, injected with, and purchased Makena." They claim that AMAG misrepresented the effectiveness of Makena. The active chemical ingredient in Makena is hydroxyprogesterone caproate, which has been on the market since 1956. The Plaintiffs allege that hydroxyprogesterone caproate was initially developed in the early 1950s. In 1956, a company named "Squib" acquired the license to the patent and marketed it under the brand name Delalutin to treat abnormal bleeding in patients with uterine cancer and later to treat pregnant women who had tumorous ovaries removed. In the 1990s, Delalutin was used to treat imminent premature birth threat during pregnancy; however, in 1995, Bristol Myers Squib voluntarily withdrew the drug from the market. A company called Hologic then developed and obtained FDA approval for Makena. On Feb. 3, 2011, the FDA approved the New Drug Application ("NDA") that Hologic filed, seeking "accelerated approval" for Makena. According to the Plaintiffs, the data used to support Makena's fast-track application and subsequent approval was insufficient to assess Makena's efficacy. They claim that the FDA relied heavily on a single clinical trial published in 2003 by the National Institute of Child Health and Human Development. The Plaintiffs allege that a statistical review and evaluation by the FDA in 2010 found that reliance on the 2003 study was insufficient to establish the efficacy of Makena in preventing preterm births. Nonetheless, the FDA approved Makena on a fast-track basis, allowing the drug to hit the U.S. market. The Plaintiffs assert that the previous owners of Makena have overcharged for the drug and have also aggressively attacked the efficacy of the generic form of Makena. They note that a 2013 study appeared to find that Makena might reduce the risk of preterm births in at-risk mothers. Through a series of transactions, AMAG acquired the exclusive rights to market and sell Makena. The Plaintiffs add that AMAG followed its predecessors in overcharging for Makena. The fast-tracked approval of Makena was conditioned on a follow-up clinical trial to confirm the drug's efficacy. On March 8, 2019, AMAG revealed the results of that FDA mandated follow-up trial, known as the PROLONG Study. The PROLONG Study revealed "no statistically significant differences concerning miscarriage and stillbirths between Makena and the placebo treatment. After the PROLONG Study results were revealed, the FDA's Bone, Reproductive and Urologic Drugs Advisor Committee recommended that Makena be withdrawn from the market. The Plaintiffs allege that on information and belief, both because of the original problems with the Meiss study, and because the incoming data for the PROLONG trial were showing Makena was ineffective, AMAG knew far earlier than finalization of the PROLONG study that Makena was ineffective. They continue that, after the PROLONG Study, the health insurance industry signaled that it would not pay claims for Makena treatment due to inefficacy. The Plaintiffs assert that AMAG has responded with claims that removing Makena from the market would exacerbate inequitable health outcomes in healthcare. AMAG has not yet removed Makena from the market. The Plaintiffs claim that certain statements by AMAG concerning Makena violate the consumer protection laws of several states. Their general theory is that AMAG's statements that Makena was effective in reducing preterm births constitute unconscionable commercial conduct. They contend that but for misleading statements that Makena was effective, they would not have purchased or been injected with Makena. The Plaintiffs filed their initial Complaint on Jan. 3, 2020. On April 2, 2020, they filed their FAC. The FAC is comprised of the following counts: (1) violation of the New Jersey Consumer Fraud Act, N.J.S.A. Section 56:8-2 ("NJCFA") (Count One); (2) violation of the California Bus. & Prof. Code Section 17200 (Count Two); (3) violation of the California Consumer Legal Remedies Act, Cal. Civ. Code Section 1770 et seq. ("CCLRA") (Count Three); (4) violation of the Kansas Consumer Protection Act, Kan. Stat. Section 50-623, et seq., ("KCPA") (Count Four); (5) violation of the Missouri Merchandising Practices Act, RSMo Section 407.010, et seq., ("MMPA") (Count Five); (6) violation of New York General Business Law Section 349(a) ("NYGBL") (Count Six); (7) violation of the Wisconsin Deceptive Trade Practices Act ("WDTPA") (Count Seven); and (8) unjust enrichment (Count Eight). The matter comes before the Court by way of the Defendant's motion to dismiss the Plaintiffs' FAC. Discussion A. AMAG's Motion to Dismiss Plaintiffs' Consumer Fraud Claims as Preempted AMAG first moves to dismiss all consumer fraud claims, Counts One through Seven, based on preemption. It argues that the Plaintiffs' claims concerning AMAG's marketing materials constitute an attack on Makena's label itself. Judge Vazquez opines that the Plaintiffs fail to allege specific facts to support their allegation on information and belief that AMAG knew the results of the PROLONG study "far earlier" than its finalization. Similarly, they fail to indicate how it was possible to ascertain the final results of the "double blinded, placebo-controlled clinical trial," before all data was collected and analyzed. As a result, the Plaintiffs have insufficiently alleged the basis for their "on information and belief" claim. The FAC alleges the results of the PROLONG study were released on March 8, 2019. As to the Plaintiffs claims arising before that date, the Judge holds that the Plaintiffs have failed to allege sufficiently that AMAG was aware of "newly acquired information" such that it could have availed itself of the CBE exception before that date. Accordingly, the Plaintiffs consumer fraud-based claims that arose before March 8, 2019 are dismissed as preempted. Moreover, the Judge finds that the named Plaintiffs have failed to allege the specific date on which they were "prescribed, injected with, and purchased Makena." Instead, each named Plaintiff simply alleges this occurred "during the class period" -- a time period which, although undefined in the FAC, apparently could extend from January 2014 to the present. Aside from the issues that these vague allegations raise under the applicable pleading standards, the Judge cannot determine which, if any, of the Plaintiffs' claims survive his Court's finding that claims arising prior to March 8, 2019 are preempted. Because the named Plaintiffs have failed to provide sufficient facts for the Court to determine whether or not their claims are preempted, the Jduge dismisses all of the Plaintiffs' consumer-fraud based claims (Counts One through Seven) without prejudice. B. Defendant's Motion to Dismiss Plaintiffs' Unjust Enrichment Claim The Plaintiffs' remaining claim is Count Eight, unjust enrichment, which the Defendant moves to dismiss on several grounds. The Plaintiffs do not appear to respond to the Defendant's arguments. Judge Vaquez opines that their failure to respond could be construed as a waiver. However, turning to the merits, the Judge holds that the unjust enrichment claim is inadequately pled. He says, when an individual purchases a consumer product from a third-party store and not the manufacturer, the purchaser has not conferred a benefit directly to the manufacturer such that the manufacturer could be found to have been unjustly enriched. The Plaintiffs have not alleged they purchased Makena directly from AMAG. Therefore, they cannot maintain an unjust enrichment claim. Count Eight is dismissed without prejudice. Conclusion For the foregoing reasons, Judge Vaquez granted the Defendant's motion to dismiss. The dismissal is without prejudice, and the Plaintiffs are granted 30 days to file an amended complaint that cures the deficiencies noted. If they fail to file an amended complaint within the allotted time, the dismissal will be with prejudice. An appropriate Order accompanies the Opinion. A full-text copy of the Court's May 25, 2021 Opinion is available at https://tinyurl.com/c98na593 from Leagle.com. AMAZON.COM INC: Faces USERRA Suit Over Unpaid Military Leave ------------------------------------------------------------ Daniel Wiessner at Reuters reports that Amazon.com Inc has been hit with a proposed nationwide class action claiming it unlawfully refuses to pay workers who take short-term military leave, even while it provides paid leave for jury duty and bereavement. Caonaissa Won, an Army reservist and former employee at an Amazon warehouse in New York, filed a complaint in Brooklyn federal court on accusing the online retail giant of violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA requires employers who provide paid leave to absent or furloughed workers to also pay employees who take military leave. But Won, represented by Virginia & Ambinder, says that since at least 2004 Amazon has refused to pay workers who take 30 days or less of military leave even while it covers the wages of employees who take short-term, non-military leave. In 2020 alone, at least 8,000 Amazon employees in the U.S. performed about 20,000 days of military service, according to the complaint. Seattle-based Amazon did not immediately respond to a request for comment. The lawsuit is similar to a class action that Walmart Inc in December agreed to pay $14 million to settle. Walmart, which denied wrongdoing, also said that effective Jan. 1 it would offer 30 days of fully paid military leave per year to service members. If workers' service assignments continue beyond 30 days, they may be eligible for an additional year of paid leave, the company said. Won, the plaintiff in the lawsuit against Amazon, proposed a class of current and former Amazon employees who have taken military leave for 30 days or less since October 2004. Won is seeking to recover unpaid wages, lost earnings and benefits, and liquidated damages. The case is Won v. Amazon.com Inc, U.S. District Court for the Eastern District of New York, No. 1:21-cv-02867. For Won: LaDonna Lusher of Virginia & Ambinder [GN] AMERICAN AIRLINES: July 23 Extension to File Class Cert. Bid Tossed ------------------------------------------------------------------- In the class action lawsuit captioned as WILLIAM CLEARY, ET AL., v. AMERICAN AIRLINES INC., Case No. 4:21-cv-00184-O (N.D. Tex.), the Hon. Judge Reed O'Connor entered an order denying the agreed motion to extend the deadline for class certification, filed May 17, 2021. Judge O'Connor says that the motion for class certification must be filed no later than June 11, 2021. The Defendant must respond no later than June 25, 2021, and Plaintiff may reply no later than July 2, 2021. The parties previously attempted to extend this deadline to September 2021, but because the local rules require a motion to certify a class within 90 days of filing a class action complaint, the Court denied the motion for an extension and ordered the motion for class certification to be filed no later than June 11, 2021. The parties again moved to extend the deadline to July 23, 2021, selectively quoting the Court's previous order as justification for the extension. Previously, the Court stated that part of the reason why the 90-day rule exists is so that "the parties have plenty of time to conduct discovery and prepare for trial in accordance with the Court’s ruling." However, Plaintiff left out of the portion of the Court's order that emphasized that the relevant concern for resolving the class certification issue is so that the parties can prepare "in accordance with the Court’s order." The Plaintiffs argue that they have been conducting discovery, therefore there is no need to hurry to file a motion for class certification, but whether the parties have been conducting discovery has no bearing on the Court’s need to have full briefing on class certification with plenty of time for the Court to resolve it prior to trial. The Court has a heavy docket and needs sufficient time to resolve the motion. A copy of the Court's order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/2R9eQc5 at no extra charge.[CC] APPLE INC: Faces Class Action Suit Over Anti-Competitive App Store ------------------------------------------------------------------ patentlyapple.com reports that primary Productions LLC located in Atlantic City, New Jersey, is an educational media producer that has filed a detailed 8-count Class Action against Apple for its anti-competitive App Store. The plaintiff claims in their complaint that "Apple is a monopolist in the market for iOS app and payment processing (IAP) distribution services. This is a lawsuit representing the millions of independent entrepreneurs that serve as the fabric connecting our modern economy." Our report covers the Plaintiff's lengthy and angry complaint against Apple along with the full formal filing with the court in the form of a Scribd document. Whether the request for class action status be granted to Primary Productions by a judge is unknown at this time. Plaintiff's Formal Complaint for Damages and Injunctive Relief Below is the full formal complaint filed by Primary Productions. The emphasis presented below in bold type is from Patently Apple. "This class action seeks to redress injustices Apple imparts upon the developer base that the monopoly necessarily relies upon to exist. Documented herein are the anti-competitive business practices that have become the norm at Apple, and how they have harmed Plaintiff, an educational media producer, and countless other class members that shall be identified in discovery. This is a lawsuit representing the millions of independent entrepreneurs that serve as the fabric connecting our modern economy. Counsel, a Maine-native, is passionately devoted to protecting the rights of these creative minds from the stifling and oppressive greed of Apple. In contrast to cases like Epic, representing billion-dollar gaming companies with expensive law firms like Quinn Emmanuel, here Plaintiffs and the proposed class members are largely small startups who break their back on Apple's terms to produce free apps consumed by billions. This class action charges Apple with six Sherman Act causes of action applied to three proposed classes. It is first-to-file such a class action representing and protecting the interests of small developers. It does so by creating a proposed class for developers of free apps, and a proposed class for developers who paid a $99 annual tax -the subject of a recent, groundbreaking Congressional Subcommittee report. No other class action currently protects these two classes - which counsel here does by asserting that Apple is a monopsony retail buyer of Apps, and hence underpays developers, even those of free apps, when it disallows them or suppresses their ranking on the App Store to favor Apple's own apps or its cronies. Alternatively, we assert that Apple holds a monopoly in the market for smartphone enhanced internet backbone access devices, and therefore improperly excludes developers of free apps from publication. As the US House of Representatives Subcommittee on Antitrust recently exposed, Apple, when it suited them with Chinese developer Baidu, appointed two Apple employees to help them navigate the murky waters of the Apple App Store. The Plaintiff and class members in this case, however, weren't so lucky to obtain such hand-holding-their thousands of person-hours of work were tossed away by Apple, with illegal rejections that, according to the same House report, even astonished many Apple employees. The same report issued concerns over a $3 billion annual tax on developers levied by Apple. Assuming a ten-year average developer contract, this lawsuit seeks to refund an illicit $30 billion tax to small developers. In addition, it is estimated at least two thousand apps, amongst the millions which applied, were denied because they competed with Apple's own rival apps, or the monopoly's close cronies. Hence, class damages could total over $230 billion, when combining improper taxes, rival exclusion, and excessive rents on in-app payments -making this potentially the largest class action in history. Expedited discovery will allow further refinement of this estimate. While damages of this magnitude are certainly difficult to grasp, it should be noted that just last month, Apple announced a community initiative amounting to $300 billion, and Apple itself is valued at $3 trillion. Hence, in perspective, the alleged anti-competitive damages are approximately 10% of the company's profit stream, or just one focused charity campaign. This is a rapidly evolving legal matter. Apple has become the richest corporate entity in the world, thriving from 30% commissions and deeply curated - and restricted - trade outputs in the App Store that launched over a decade ago. Apple wants the public to believe it is all in the name of safety and consumer privacy. Last month, the New York Times asked Apple CEO Mr. Tim Cook about the mounting concerns over Apple's unyielding power and absolute control over the App Store. His response -"somebody has to" control the internet, it might as well be Apple - certainly sounds more like the divine right of kings than a new age technology company. [Patently Apple Note: the line of "somebody has to" control the internet presented above by the Plaintiff is out of context. Cook was talking about the App Store, not control over the internet. Source: Podcast with NY Times.] The complaint further states that "Mr. Cook's logic has one fatal flaw. For over forty years, and still, the Apple Mac ecosystem healthfully thrived without such policing. Mac users simply aren't begging Apple to police their computer software due to an imaginary flood of privacy violations and other scaremongering tactics. Representing a class of developers who directly suffer from Apple's ever-expanding power grab is Primary Productions LLC, a creative studio with diverse work products. Counsel in the class action endeavors to represent the best interests of, and provide a voice to, other developers that have thus far been silenced by a company that took a very wrong turn - at a steep cost to society - after the passing of its legendary founder Steve Jobs. In June 2018, the Plaintiff completed an iOS application ("the app") that was seven years in the making. The app sought to give away blockchain currency (i.e., Ethereum, Bitcoin, etc.) to users through an entertaining and educational learning process where users would learn the basics of creating digital wallets, making deposits and tracking their wallet asset prices. The app was completely free to use, funded through sponsorships and media partnerships, and did not subject any user to any form of risk, whatsoever. In fact, users were paid to use the app, in the form of modern digital currency. Apple, meanwhile, was developing the Apple Arcade, targeting low-price and free to play games and entertainment software. Primary Productions' app, as Apple recognized, was a sure hit in the growing enthusiasm for blockchain encryption currency that flourished in mid-2018. As such, Apple's growing tentacles into low price gaming was directly threatened by Primary Productions' very existence. Apple killed the Primary Productions app before the public ever had a chance to enjoy it, using the typical pretextual reasons they harass tens of thousands of developers with. In 2021 alone, as of filing, Apple has already rejected one million apps, representing millions of person-hours of lost work, all to appease the Apple giant. This case centers on a form of censorship imposed by Apple, the extent of which is largely unknown to the public, but evident to nearly every small developer who lives under Apple's oppression. Until about a decade ago, computer developers wrote software applications and published their work to the public domain, or sold it in brick-and-mortar software shops. Apple changed the game by introducing the App Store, and a decade later, serious questions exist for our society. Should every inventor - from creative labs like Plaintiff, to Nobel laureate level inventors denied app publication - have to gain Apple's approval, or were the longstanding methods and freedoms enjoyed before the App Store better for society? This is a critical antitrust matter that is ripe for judicial scrutiny. Until the App Store was invented in 2008, and for the entire history of computing, software authors effectively served as independent inventors and intellectual property developers when they published their works in the public domain or sold them in software shops. Over time, Apple's App Store has so far distanced the independent developer-inventor from direct access to his or her audience, that critical commerce is restrained, in violation of the Sherman Act. Nearly 60% of users and 80% of paid internet commerce access the national internet backbone using Apple devices. For many millions of these users, their de facto access to the internet relies upon using an iOS device. Consider, for example, children or elderly who have been taught to access the internet using a relative's Apple device and have absolutely no reasonable alternative. As such, Apple operates a de facto monopoly for access to the national internet communication backbone. More precisely, this lawsuit uses the novel market definition "smartphone enhanced national internet commerce and information communicating devices." Essentially, we argue that citizens make a substantial investment (around $1000) in an amalgamation of hardware (camera, GPS, gyroscopes, heart sensors, microphone, altimeter, etc.) to communicate with other citizens, and Apple illegally restricts this de facto public utility investment. In short, citizens own their network, and Apple has no right to police it, as was the case for decades with software shops and free markets uninhibited by Big Tech. Alternatively, we incorporate and improve upon the "Kodak downstream" antitrust app market theory, proceeding in numerous other districts for paid apps, so as to avoid frivolous dilatory motions by Defendant Apple - which scored a nine-year delay win in Pepper, until a milestone SCOTUS mandate. Apple has restricted trade, communication, and free information exchange, all in violation of the Sherman Act, when it disallowed Plaintiff's reasonable application." [GN] APPLUS TECH: CT Drivers' License Holders Sue Over Data Breach ------------------------------------------------------------- Amelia Yankovich and Joseph Allen, on behalf of themselves and all others similarly situated, Plaintiffs, v. Applus Technologies, Inc., Defendant, Case No. 21-cv-00720 (D. Conn., May 26, 2021), seeks to recover damages and other relief resulting from a Data Breach, including, but not limited to, compensatory damages, reimbursement of costs of this case, declaratory judgment and injunctive relief resulting from negligence and breach of implied contract. Applus Technologies manages and provides vehicle inspections and emission testing and services to Connecticut drivers for the DMV. On March 30, 2021, Applus learned that it had been the victim of a malware attack which prompted it to shut down its vehicle emissions testing programs in eight states, including Connecticut. Yankovich and Allen are Connecticut drivers' license holders who claim that their personal information has been compromised in the data breach. [BN] Plaintiff is represented by: Sergei Lemberg, Esq. LEMBERG LAW 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 Email: slemberg@lemberglaw.com ARRAY BIOPHARMA: Voulgaris Class Cert. Bid Denied w/o Prejudice --------------------------------------------------------------- In the class action lawsuit captioned as PETER VOULGARIS, WENDELL ROSE, and ROBERT NAUMAN, v. ARRAY BIOPHARMA INC., RON SQUARER, VICTOR SANDOR, and JASON HADDOCK, Case No. 17-cv-02789-KLM (D. Colo.), the Hon. Judge Kristen L. Mix entered an order denying without prejudice Plaintiffs Peter Voulgaris and Wendell Rose's motion for class certification and approval of notice. If the settlement is not approved, Plaintiffs may refile the Motion, says Judge Mix. This motion was filed before the parties filed a Notice of Settlement and Plaintiff filed a Motion for Preliminary Approval of Settlement. The settlement was preliminarily approved by Order of May 4, 2021, subject to further consideration at a hearing set for October 29, 2021. In light of the potential settlement, the Court need not address at this time the Motion seeking full class certification. If the Court ultimately chooses to accept and enforce the settlement as reasonable, fair, and adequate, class certification will be addressed only for purposes of the settlement. A copy of the Court's minute order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/3fzZWFh at no extra charge.[CC] ARRAY TECHNOLOGIES: ClaimsFile Reminds of July 13 Deadline ---------------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors of pending deadline in the following securities class action lawsuit: Array Technologies, Inc. (ARRY) Class Period: 10/14/2020 - 5/11/2021, or purchase of shares issued either in or after the October 2020, December 2020 or March 2021 public offerings Lead Plaintiff Motion Deadline: July 13, 2021 SECURITIES FRAUD, MISLEADING PROSPECTUS To learn more, visit https://www.claimsfiler.com/cases/view-array-technologies-inc-common-stock-arry-securities-litigation If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. To learn more about ClaimsFiler, visit www.claimsfiler.com [GN] ARRAY TECHNOLOGIES: Howard G. Smith Discloses Securities Class Suit ------------------------------------------------------------------- Law Offices of Howard G. Smith announces that a class action lawsuit has been filed on behalf of investors who purchased Array Technologies, Inc. ("Array" or the "Company") (NASDAQ: ARRY): (a) securities between October 14, 2020 and May 11, 2021, inclusive (the "Class Period"); and/or (b) common stock pursuant and/or traceable to the registration statement and prospectus issued in connection with (1) the October 2020 initial public offering (the "IPO"); or (2) the December 2020 secondary public offering (the "December 2020 SPO"); or (3) the March 2021 secondary public offering (the "March 2021 SPO," and together with the IPO and the December 2020 SPO, the "Offerings"). Array investors have until July 13, 2021 to file a lead plaintiff motion. Investors suffering losses on their Array investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com. In October 2020, Array completed its initial public offering, selling 7 million shares at $22 per share. On May 11, 2021, after the close of trading, Array announced first quarter 2021 results, reporting lower revenues year-over-year and lower margins as a result of increased steel and shipping costs. The Company also announced that Peter Jonna had resigned from the Board of Directors effective May 10, 2021. On this news, Array's stock price fell $11.49 per share, or 46%, to close at $13.46 per share on May 12, 2021, significantly below the IPO price. The complaint filed alleges that in the registration statements for the Offerings and throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that: (1) dating back to the first quarter of 2020, prices of certain commodities such as steel was in the process of more than doubling, and Array was facing increasing freight costs; (2) the increases in commodity and freight costs had been negatively impacting the Company's business and operations; and (3) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Array common stock pursuant and/or traceable to the Offerings and/or securities during the Class Period, have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] BELMONT MANAGEMENT: Court OKs Final Collective Action Certification ------------------------------------------------------------------- In the class action lawsuit captioned as TERESA WISNESKI AND MILDRED JONES, each individually and on behalf of all others similarly situated, v. BELMONT MANAGEMENT COMPANY, INC., Case No. 2:19-cv-02523-JAR-ADM (D. Kan.), the Hon. Judge Julie A. Robinson entered an order granting the consent motion for final collective action certification and final approval of settlement. -- Final Collective Action Certification Accordingly, the Court finds that the opt-in Plaintiffs are similarly situated for final collective action certification. -- Fair Labor Standards Act (FLSA) Settlement Approval The Court concludes that the terms of the settlement are fair and equitable to all parties concerned. -- Attorney Fees The Plaintiffs seek, and Defendant does not oppose, $26,500 in attorney fees and expenses. The Plaintiffs' attorney fee award does not impact Plaintiffs' recovery at all. Accordingly, the Court finds that the amount of the attorney fee request is reasonable. The Plaintiffs Wisneski and Jones worked as hourly employees for the Defendant at one of apartment complexes. They lived on the premises and received a rent credit. They filed this lawsuit, on behalf of themselves and others similarly situated, for alleged violations of the FLSA. The Plaintiffs allege that the Defendant failed to pay them a proper overtime premium because the Defendant did not include the value of the rent credit in Plaintiffs' regular hourly rate when calculating their overtime pay. Belmont Management operates as an asset management company. A copy of the Court's memorandum and order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/2SO4b7m at no extra charge.[CC] CELLCO PARTNERSHIP: Court Confirms Arbitration Award in Adell Suit ------------------------------------------------------------------ In the case, LORRAINE ADELL, etc., Plaintiff v. CELLCO PARTNERSHIP d/b/a) VERIZON WIRELESS, Defendant, Case No. 1:18CV623 (N.D. Ohio), Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division: (i) denied Plaintiff Adell's Motion to Vacate July 22, 2020 Arbitration Award; and (ii) granted the Defendant's alternative request to confirm the Arbitration Award. On March 19, 2018, the Plaintiff filed her Class Action Complaint. She asserted a Breach of Contract Claim on behalf of a class of Verizon Wireless customers, seeking damages arising from the Defendant's practices in connection with the imposition of an "administrative charge." The Plaintiff also asserted a claim for Declaratory Relief on behalf of all Verizon Wireless telephone customers. She contended that the waiver of an Article III adjudication of her class-wide Breach of Contract Claim against Defendant is not "voluntary" because of the inability to refuse Federal Arbitration Association ("FAA") arbitration and still receive the Verizon equipment and services. She also argued that the arbitration provision in the wireless phone agreement is not enforceable because of the "inherent conflict" between arbitration under the FAA and the express purposes of the Class Action Fairness Act of 2005 ("CAFA"). The Defendant filed a Motion to Compel Arbitration and to Stay Proceedings and the Plaintiff moved for Partial Summary Judgment on her individual Declaratory Judgment claims. The Court issued an Opinion and Order holding: (1) that the Plaintiff's consent to arbitrate disputes pursuant to the Verizon Customer Agreement was knowing and voluntary; (2) that to allow the Plaintiff to refuse to arbitrate disputes on an individual basis but still retain the Verizon equipment and services would necessarily deprive the Defendant of its rights and force Defendant to accept contractual terms without its voluntary consent; and (3) that the arbitration provision is enforceable because if Congress had wanted to override the FAA and ban arbitration class action waivers, it could have done so manifestly and expressly in the CAFA statute. Accordingly, the Court granted the Motion to Compel Arbitration and Stay Proceedings and denied the Plaintiff's Motion for Partial Summary Judgment. Next, the Plaintiff filed her Motion to Amend for Certification Under 28 U.S.C. Section 1292(b) the District Court's March 5, 2019 Order Staying the Action, seeking to take an immediate appeal. By its Opinion and Order dated Oct. 18, 2019, the Court denied the Plaintiff's Motion to Amend for Certification. Thereafter, the Plaintiff made a demand for arbitration with the American Arbitration Association. After full briefing, the Arbitrator issued an Award on July 22, 2020, agreeing with the Defendant's position. The Arbitrator found that the plain language of the Customer Agreement was unambiguous and did not require the "administrative charge" to be limited to government-related costs. Therefore, the Arbitrator entered an award denying all of the Plaintiff's claims and finding entirely in the Defendant's favor. Within the required 90-day period, the Plaintiff filed the instant Motion to Vacate the Arbitrator's Award. She states that her Motion to Vacate s brought under the fourth circumstance listed in 9 U.S.C. Section 10(a); and is based solely on the ground that the arbitrator exceeded his authority in arbitrating the matter and issuing the Award because Verizon's arbitration agreement is not enforceable and the Plaintiff's claims are not arbitrable for the reasons asserted in her motion for partial summary judgment denied by the Court's Opinion. The Plaintiff outlines her rationale for moving to vacate the July 22, 2020 Arbitrator's Award as follows: "Plaintiff's motion to vacate is being filed anticipating that it will not be granted and that the Court will issue a final decision denying Plaintiff's motion to vacate brought under the same grounds as her prior motion for partial summary judgment--which can then be appealed to the Sixth Circuit as a final decision with respect to an arbitration under FAA Section 16(a)(3) (and also under FAA Section 16(a)(1)(D), assuming Verizon files a motion to confirm the Award that is granted by the Court under FAA Section 9)." In its Opposition, the Defendant contends that the sole basis the Plaintiff cites in support of her Motion to Vacate is that the Arbitrator "exceeded his authority" because Plaintiff should not have been compelled to arbitrate this dispute in the first place. It argues that this does not justify an order vacating the Arbitration Award. The Plaintiff counters that she is not asking for a re-hearing by the District Court, but rather is preserving for review by the Sixth Circuit, her challenges to the enforceability of Verizon's arbitration agreement rejected by the Court in its Opinion. Judge Boyko opines that the burden of proving that the arbitrators exceeded their authority is very great, citing Nationwide Mut. Ins. Co. v. Home Ins. Co., 330 F.3d 843, 846 (6th Cir. 2003). He finds that the Plaintiff fails to meet that substantial burden and basically concedes that her Motion is unsound. Furthermore, the Plaintiff provides no legitimate argument against confirmation of the Arbitrator's Award. In her Reply Brief, the Plaintiff states: "Although Plaintiff does not concede that Verizon's cross-motion should be granted, Plaintiff's grounds in opposition are the same grounds in support of her motion to vacate." The Judge finds that the Plaintiff's basis for opposing confirmation fares no better than the basis she posits for vacating the Award. For these reasons, and because the Court's review of arbitration awards is so narrow, Judge Boyko denied the Motion of the Plaintiff to Vacate July 22, 2020 Arbitration Award and granted the Defendant's alternative request to confirm the Arbitration Award. A full-text copy of the Court's May 24, 2021 Opinion & Order is available at https://tinyurl.com/2sns9fbv from Leagle.com. CHEMOCENTRYX INC: ClaimsFiler Reminds Investors of July 6 Deadline ------------------------------------------------------------------ ClaimsFiler, a FREE shareholder information service, reminds investors of pending deadline in the following securities class action lawsuit: ChemoCentryx, Inc. (CCXI) Class Period: 11/26/2019 - 5/3/2021 Lead Plaintiff Motion Deadline: July 6, 2021 SECURITIES FRAUD https://www.claimsfiler.com/cases/view-chemocentryx-inc-common-stock-ccxi-securities-litigation If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. To learn more about ClaimsFiler, visit www.claimsfiler.com [GN] CHIME FINANCIAL: Class Settlement in Richards Suit Has Final Nod ---------------------------------------------------------------- In the case, RYAN RICHARDS, et al., Plaintiffs v. CHIME FINANCIAL, INC., et al., Defendants, Case No. 19-cv-06864-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California: (i) grants the Plaintiffs' motion for final approval of class action settlement; and (ii) grants in part the Plaintiffs' motion for attorneys' fees and incentive award. The Plaintiffs filed the putative class action against Defendant Chime Financial, The Bancorp Inc., and Galileo Financial Technologies, LLC based on a disruption in Defendant Chime's online-only banking services. The Plaintiffs allege that on Oct. 16, 2019, Chime had a system-wide service outage that lasted approximately 72 hours. During this Service Disruption, Chime's customers, approximately 5 million people, could not access their funds, including through card purchases and ATM withdrawals. Following the Service Disruption, some customers reported incorrect account balances and unauthorized charges. The Plaintiffs bring the action on behalf of a putative nationwide class of Chime customers who were denied access to their accounts beginning on Oct. 16, 2019, as well as subclasses of customers denied access to their accounts who reside in Florida, Texas, Illinois, and Georgia. And based on these facts, the Plaintiffs allege causes of action for negligence; unjust enrichment; breach of contract; conversion; breach of fiduciary duty; violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Section 501.201; violation of the Illinois Consumer Fraud Act, 815 Ill. Comp. Stat. Sections 505/1 et seq.; and violation of the Illinois Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. Sections 510/2 et seq. The Plaintiffs initially filed the action on Nov. 22, 2019. The parties did not engage in motions practice, and instead attended two settlement conferences with Magistrate Judge Laurel Beeler. With Judge Beeler's assistance, the parties reached an agreement in principle on May 12, 2020. The parties entered into a written settlement agreement in early August 2020. Following the hearing on the unopposed motion for preliminary settlement approval, the parties submitted a revised settlement agreement that addressed concerns that the Court raised about the scope of the release, as well as the process for any objectors to object to the proposed settlement. The Court granted the motion on Oct. 28, 2020. The parties now seek final approval of the class action settlement and the Plaintiffs seek attorneys' fees, costs, and an incentive award for the named Plaintiffs. The key terms of the parties' settlement are: a. The Settlement Class is defined as: All consumers who attempted to and were unable to access or utilize the functions of their accounts with Chime, as confirmed by a failed transaction or a locked card as recorded in Chime's business records, beginning on October 16, 2019 through October 19, 2019, as a result of the Service Disruption. b. Settlement Benefits: i. The parties have agreed to monetary relief that incorporates an offset for credits that Chime already provided to the accounts of active customers because of the outage: 1. Approximately a month after the outage, Chime credited $10 to the accounts of all active customers as a courtesy payment because of the outage. 2. Chime also credited the accounts of those customers who incurred certain transaction fees during the outage to cover those fees as a transaction credit. ii. The parties agree that these courtesy payments and transaction credits total $5,960,563 already paid to active Chime account holders due to the outage. The Defendants also concede that this litigation was "a motivation" for making these payments. Pursuant to the settlement agreement, the Defendants have agreed to further compensate settlement class members who submit verified claims under a two-tier system: 1. Tier 1: Class members who claim they suffered loss due to the outage, but who do not have or do not wish to provide documentation to substantiate their loss will be entitled to up to $25 for verified claims. The Defendants' aggregate maximum payment under Tier 1 is $4 million. If the amount of verified claims under Tier 1 is less than $4 million, the Defendants will retain any unclaimed amount, except to the extent that such funds are necessary to fully or partially satisfy Tier 2 claims. 2. Tier 2: Class members who claim they suffered loss due to the outage and have reasonable documentation to substantiate their loss will be entitled to up to $750, but not more than their verified loss. Those who fail to provide documentation will be considered under Tier 1. Defendants' aggregate maximum payment under Tier 2 is $1.5 million, and any residual money unclaimed under Tier 1 can be used to pay Tier 2 claims in excess of the $1.5 million cap. All claims under both Tiers will be verified using a two-step system. Under both Tiers, the putative class members will have to submit a brief explanation, under penalty of perjury, as to how the outage caused them loss and what amount of loss they purport to have suffered. Those submitting claims under Tier 2 will also be required to submit reasonable documentation to support their claims. The Defendants and the settlement administrator will then confirm through Chime's business records that the putative class member (a) held a Chime account at the time; and (b) either attempted a financial transaction that failed or had their card locked as a result of the outage. During the hearing, the Defendants confirmed that despite the service disruption, they have accurate records of attempted transactions during the relevant time period. Under the settlement agreement, any prior money received by a Settlement Class Member from Chime in connection with the Service Disruption will be offset against" the payment. Thus, any verified claims under Tier 1 and Tier 2 will be reduced by the amount the class member already received as a (1) courtesy payment; or (2) transaction credit. At a minimum, however, the Defendants will pay $1.5 million under the settlement agreement. c. Cy Pres Distribution: If the claim payments under Tiers 1 and 2 do not reach the $1.5 million minimum under the settlement agreement, the Defendants will distribute funds to reach this minimum to the East Bay Community Law Center as the cy pres recipient. They will, however, keep any money available for settlement but unclaimed above this $1.5 million threshold. d. Class Notice: A third-party settlement administrator will implement the "Notice Program," which includes (1) an email Notice and (2) a Notice on the Settlement Website. The settlement administrator will send the Notice to class members by email within 30 days of the Court's order preliminarily approving the settlement. The settlement administrator will make reasonable efforts to locate updated email addresses for class members whose Notices are returned as undeliverable. The Notice will include: the nature of the action, a summary of the settlement terms, and instructions on how to object to and opt out of the settlement, including relevant deadlines. e. Opt-Out Procedure: The putative class members may opt out of or object to the settlement and/or Class Counsel's application for attorneys' fees, costs, and expenses. f. Incentive Award: The Named Plaintiffs as class representatives may apply for incentive awards of no more than $500 each. g. Attorneys' Fees and Costs: The Class Counsel may file an application for attorneys' fees not to exceed $750,000. The Class Counsel seeks $750,000 in attorneys' fees, costs, and expenses. Under the settlement agreement, this amount will not reduce the monetary relief available to Class Members. The Class Counsel acknowledges that its lodestar and accrued litigation expenses are significantly less than the $750,000 requested. As of the filing of the motion for attorneys' fees, the Class Counsel had incurred $295,915.20 in fees for approximately 380 hours of work, and $8,146.75 in litigation expenses. Nevertheless, the Class Counsel urges that the full $750,000 is appropriate under the "percentage of fund" method. The Class Counsel also requests an incentive award of $500 for each of the Named Plaintiffs. Analysis After considering and weighing the factors, Judge Gilliam finds that the settlement agreement is fair, adequate, and reasonable, and that the settlement Class Members received adequate notice. Accordingly, the Plaintiff's motion for final approval of the class action settlement is granted. Turning to the attorneys' fees and costs, reducing the Plaintiffs' lodestar calculation, Judge Gilliam calculates a revised lodestar of $338,719.56. Considering the procedural posture of the case, the amount of substantive litigation, the minimal issues in dispute, and the lack of motion practice, he finds that an award of this lodestar is reasonable under the circumstances. He also finds that the $8,146.75 in costs that the counsel identified is also reasonable. Accordingly, the Judge awards attorneys' fees and costs in the total amount of $346,857.31. With respect to the inventive awards, Judge Gilliam has concerns about the requested incentive awards in a case in which the average monetary recovery for each Class Member is $11.94. Thus, if he were to grant the named Plaintiffs' request for incentive awards, they would be receiving significantly more money as compared to the other Class Members. The Judge further notes that the counsel has not provided any detailed discussion of what the named Plaintiffs did to contribute to the litigation or how long they spent doing any particular task. Rather, the counsel devotes just two sentences to summarizing at a high level the types of work that the named Plaintiffs performed. The Judge accordingly denies the request for incentive awards in its entirety. Conclusion Accordingly, Judge Gilliam grants the motion for final approval of class action settlement and grants in part the motion for attorneys' fees and incentive award. He awards attorneys' fees and costs in the amount of $346,857.31, but denies the request for an incentive award for the named Plaintiffs. The parties and settlement administrator are directed to implement the Final Order and the settlement agreement in accordance with the terms of the settlement agreement. They are further directed to file a short stipulated final judgment of two pages or less within 21 days from the date of the order. The judgment need not, and should not, repeat the analysis in the Order. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/5afs2d2m from Leagle.com. CHURCHILL CAPITAL: Discloses Securities Class Action Lawsuit ------------------------------------------------------------ The Thornton Law Firm alerts investors that a class action lawsuit has been filed on behalf of investors of Churchill Capital Corp IV (NYSE: CCIV). Investors who purchased CCIV stock or other securities between January 11, 2021 and February 22, 2021 may contact the Thornton Law Firm's investor protection team by visiting www.tenlaw.com/cases/Churchill for more information. Investors may also email investors@tenlaw.com or call 617-531-3917. The complaint alleges that on February 22, 2021, a merger agreement was announced between Churchill, a special purpose acquisition company and Lucid, an American automotive company specializing in electric cars. The transaction equity value was estimated at $11.75 billion. Churchill's share price closed at $57.37. It is alleged that Lucid announced the production of its debut car would be delayed until at least the second half of 2021, with no definite date set for delivery of an actual vehicle. It is also alleged that Lucid was projecting the production of only 557 vehicles in 2021, rather than the 6,000 it had been touting before the merger announcement. The case is currently in the lead plaintiff stage. A lead plaintiff acts on behalf of all other investor class members in managing the class action. Investors do not need to be a lead plaintiff in order to be a class member. If investors choose to take no action, they can remain an absent class member. The class has not yet been certified. Until certification occurs, investors are not represented by an attorney. Thornton Law Firm is not currently representing a plaintiff who filed a complaint but is investigating the case on behalf of investors interested in being a lead plaintiff. Thornton Law Firm's securities attorneys are highly experienced in representing investors in recovering damages caused by violations of the securities laws. Its attorneys have established track records litigating securities cases in courts throughout the country and recovering losses on behalf of investors. This may be considered Attorney Advertising in some jurisdictions. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] CLOUDERA INC: Consolidated Amended Securities Class Suit Dismissed ------------------------------------------------------------------ In the case, IN RE CLOUDERA, INC. SECURITIES LITIGATION, Case No. 19-CV-03221-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, grants the Defendants two motions to dismiss the Consolidated Amended Class Action Complaint with leave to amend. The case is a putative securities class action against Cloudera, Intel Corp., and numerous director and corporate officer defendants. Lead Plaintiff Mariusz J. Klin & The Mariusz J. Klin MD PA 401K Profit Sharing Plan and Named Plaintiffs Robert Boguslawski and Arthur P. Hoffman bring the suit on behalf of "all other persons similarly situated who purchased and/or otherwise acquired shares of Cloudera common stock between April 28, 2017 and June 5, 2019, inclusive. Defendant Cloudera is a software company that purports to empower organizations to become data-driven enterprises in the newly hyperconnected world. Defendant Intel is a semi-conductor technology company that held 17.6% of Cloudera's outstanding common stock as of March 31, 2018. Defendant Thomas Reilly was formerly Chairman of the Board of Directors of Cloudera and was Cloudera's CEO until July 31, 2019. Defendant Jim Frankola has been Cloudera's CFO since October of 2012. Defendant Michael Olson was co-founder of Cloudera, former Chairman of the Cloudera Board of Directors, and served as Cloudera's Chief Strategy Officer from June of 2013 to June 5, 2019. Defendant Ping Li is a partner at Accel and was a member of Cloudera's Board of Directors between October of 2008 and July of 2018. The Plaintiffs also named as defendants several members of the Board of Directors of Cloudera and Hortonworks, Inc. at the time of the merger between the two companies. These defendants are Martin Cole, Kimberly Hammonds, Rosemary Schooler, Steve Sordello, Michael Stankey, Priya Jain, Robert Bearden, Paul Cormier, Peter Fenton, and Kevin Klausmeyer ("Director Defendants"). On June 7, 2019, a Cloudera shareholder filed a class action securities complaint against Defendants Cloudera, Reilly, Frankola, and Olson. On Dec. 16, 2019, pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"), the Court appointed Plaintiff Mariusz J. Klin and the Mariusz J. Klin MD PA 401K Profit Sharing Plan as the Lead Plaintiff. On Feb. 14, 2020, the Lead Plaintiff filed a consolidated class action complaint that expanded the class definition, added new claims under the Securities Act of 1933, and added Cade Jones and Larry Lenick as the named Plaintiffs. On Feb. 28, 2020, the Defendants requested that the Court reopens the lead plaintiff appointment process because the consolidated class action complaint added claims and new plaintiffs. On March 18, 2020, the Court vacated its order appointing lead plaintiff and lead counsel; ordered publication of notice of the amended complaint in compliance with the PSLRA; and reopened the lead plaintiff appointment process. On July 27, 2020, the Court appointed Mariusz J. Klin and the Mariusz J. Klin MD PA 401K Profit Sharing Plan as the Lead Plaintiff and Kahn Swick & Foti, LLC as the Lead Counsel. On Sept. 22, 2020, the Lead Plaintiff filed a consolidated amended class action complaint. The CAC alleges five causes of action: (1) violation of Section 11 of the Securities Act of 1933 against Cloudera, Intel, Director Defendants, and Insider Defendants; (2) violation of Section 12(a)(2) of the Securities Act against Cloudera; (3) violation of Section 15 of the Securities Act against Intel, Director Defendants, and Insider Defendants; (4) violation of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5 against Cloudera and Insider Defendants; and (5) violation of Section 20(a) of the Exchange Act against Insider Defendants. On Sept. 27, 2020, the Cloudera Defendants filed a motion to dismiss. They also filed a request for judicial notice. On Nov. 24, 2020, the Plaintiffs filed an opposition and on Dec. 22, 2020, the Cloudera Defendants filed a reply. On Sept. 27, 2020, Intel also filed a motion to dismiss. On Nov. 24, 2020, the Plaintiffs filed an opposition and on Dec. 22, 2020, Intel filed a reply. On March 5, 2021, the Plaintiffs filed an administrative motion for leave to file a sur-reply. On March 9, 2021, both the Cloudera Defendants and Intel filed oppositions. On March 17, 2021, the Plaintiffs filed a request for judicial notice. Discussion I. Request for Judicial Notice In connection with their motion to dismiss, the Cloudera Defendants request judicial notice of 25 documents, including excerpts of sixteen documents Cloudera filed with the SEC and nine quarterly earnings calls. Judge Koh grants the Cloudera Defendants' request for judicial notice of Exhibits 1, 3-9, 12-18, 20-23, 25, 27, 30 in support of the motion to dismiss. However, to the extent any facts in these documents are subject to reasonable dispute, the Judge does not take judicial notice of those facts. The Plaintiffs also seek judicial notice of one exhibit. Specifically, the seek judicial notice of Cloudera's March 10, 2021 fourth quarter fiscal year 2021 earnings conference call transcript. They admit that Exhibit A cannot be incorporated by reference "as it was not cited in nor available when they filed their Complaint." The Cloudera Defendants oppose the Plaintiffs' request on the ground that the Court may not rely on Exhibit A to decide the motions to dismiss because it was not cited or referenced in the Plaintiffs' CAC. Exhibit A is not cited in the CAC and therefore is not a proper subject of incorporation by reference. Nonetheless, Exhibit A is an SEC filing and a publicly-filed document whose accuracy cannot reasonably be questioned and is therefore subject to judicial notice. Therefore, the Judge grants the Plaintiffs' request for judicial notice. However, she takes judicial notice of this document solely for the fact that Cloudera made the statements therein. She does not take judicial notice of the truth of any facts asserted in Exhibit A. II. Motion to Dismiss A. Plaintiffs' Claims Under Section 10(b) of the Exchange Act and Rule 10b-5 The Cloudera Defendants do contend that the Plaintiffs have failed to allege (1) material misrepresentations or omissions, and (2) scienter. Judge Koh grants the Cloudera Defendants' motion to dismiss the Plaintiffs' Section 10(b) claim because their allegedly false or misleading statements are either (1) forward-looking statements accompanied by meaningful cautionary language, and therefore immunized under the PSLRA's Safe Harbor provision; (2) not actionable as statements of corporate optimism; or (3) because the Plaintiffs have failed to adequately allege that the statements were false when made. Therefore, the Judge does not address the Cloudera Defendants' arguments regarding scienter. The Judge agrees that the Plaintiffs have failed to adequately plead falsity with respect to some of the challenged statements. First, the Plaintiffs have failed to adequately plead that the Cloudera Defendants' statements regarding Cloudera's "cloud-native" products and "cloud-native" architecture were false when made. As such, she finds that, with respect to Statements 3-13, 18-21, 23-26, 28, and 33-39, the Plaintiffs have failed to adequately plead falsity as required by the PSLRA. Second, the Judge finds that, with respect to Statements 1-14, 16-21, 23-26, 28-29, and 33-39, the Plaintiffs have failed to adequately plead falsity as required by the PSLRA. The Plaintiffs have failed to plead falsity with respect to Statement 2, Statement 16, to Cloudera's lack of cloud-native products, Statement 17, and Statement 29. Therefore, the Jduge grants the Cloudera Defendants' motion to dismiss as to these statements. Third, the Judge finds that Statements 15, 22, 40, and 41 are non-actionable corporate puffery. Specifically, she agrees with the Cloudera Defendants that Statements 15, 22, 40, and 41 fall within this category of non-actionable statements, as these statements are all general and vague remarks of corporate optimism. Therefore, the Jduge grants the Cloudera Defendants' motion to dismiss as to these statements. Last, the Judge finds that Statements 27, 30, 31, and 32 are forward-looking statements accompanied by meaningful cautionary language. She holds that each of the four statements that the Court has identified as forward-looking is not a mixed statement of present facts and a forward-looking statement. Rather, each is solely a forward-looking statement regarding the opportunities presented by the merger of Cloudera and Hortonworks. Also, none of the statements that the Court has found to be protected by the Safe Harbor reference Cloudera's cloud offerings or cloud products. Therefore, the Judge grants the Cloudera Defendants' motion to dismiss as to these statements because these statements are protected by the PSLRA Safe Harbor. In sum, Judge Koh finds that none of the allegedly false or misleading statements in the Plaintiffs' complaint survive the instant motion to dismiss. Accordingly, she grants the Cloudera Defendants' Motion to Dismiss Plaintiffs' Section 10(b) and Rule 10b-5 cause of action. B. Plaintiffs' Claims Under Section 20(a) of the Exchange Act Congress has established liability in Section 20(a) for every person who, directly or indirectly, controls any person liable for violations of the securities laws. To prove a prima facie case under Section 20(a), a plaintiff must prove: (1) "a primary violation of federal securities law;" and (2) "that the defendant exercised actual power or control over the primary violator." Because the Plaintiffs have failed to plead a primary securities law violation, Judge Koh holds that they have also failed to plead a violation of Section 20(a). Accordingly, the Cloudera Defendants' motion to dismiss the Plaintiffs' Section 20(a) claim is granted. C. Plaintiffs' Claims Under Sections 11 and 12(a)(2) of the Securities Act The Cloudera Defendants next argue that the Plaintiffs have failed to state a claim under Sections 11 and 12(a)(2) of the Securities Act. The Plaintiffs challenge 14 statements under Sections 11 and 12(a)(2) of the Securities Act that are in Cloudera's Merger Registration Statement or incorporated by reference into the Merger Registration Statement. They argue that each challenged statement was a materially false statement or omission when made. Under the heightened pleading standards of Rule 9(b), Judge Koh finds that the Plaintiffs must set forth what is false or misleading about a statement, and why it is false. This requirement is satisfied by pointing to inconsistent contemporaneous statements or information (such as internal reports) which were made by or available to the defendants. The Judge finds that the Plaintiffs have failed to adequately plead falsity with respect to Statements 42, 43, 44, 45, 46, 47, 48, 49 and 53. Construing the CAC in the light most favorable to the Plaintiffs, he construes the CAC to allege that the Cloudera Defendants failed to disclose that Cloudera lacked a viable cloud product and that Cloudera's customers were not renewing their contracts with Cloudera because Cloudera lacked a viable cloud product. However, the Plaintiffs have failed to adequately plead that either trend or uncertainty was "known to management" at the time of the merger with Hortonworks. Accordingly, they have failed to state a claim under Sections 11 and 12(a)(2) of the Securities Act against Cloudera Defendants for failure to provide the requisite Item 303 disclosures in the Merger Registration Statement. The Judge grants the Cloudera Defendants and Intel's motions to dismiss as to the Plaintiffs' Sections 11 and 12(a)(2) claims. D. Plaintiffs' Claim under Section 15 of the Securities Act To state a claim against a control person under Section 15 of the Securities Act, the Plaintiffs must plausibly allege (1) an underlying violation of Sections 11 or 12, and (2) control. The Plaintiffs have not plausibly alleged an underlying violation of Sections 11 or 12. Therefore, their Section 15 claim is dismissed. Conclusion For the foregoing reasons, Judge Koh granted the Cloudera Defendants and Intel's motions to dismiss the Plaintiffs' complaint in its entirety. Because granting the Plaintiffs an additional opportunity to amend the complaint would not be futile, cause undue delay, or unduly prejudice the Defendants, and the Plaintiffs have not acted in bad faith, the Judge grants leave to amend. Should the Plaintiffs choose to file an amended complaint, they must do so within 30 days of the Order. Failure to do so, or failure to cure the deficiencies identified in the Order and in the Defendants' motions to dismiss, will result in dismissal of the Plaintiffs' deficient claims with prejudice. The Plaintiffs may not add new claims or parties without a stipulation or leave of the Court. If they choose to file an amended complaint, they must also file a redlined copy comparing the second consolidated amended class action complaint with the consolidated amended class action complaint. Finally, any amended complaint must comply with the Court's Securities Class Action Standing Order, effective Sept. 23, 2019. A full-text copy of the Court's May 25, 2021 Order is available at https://tinyurl.com/4hk5rc5v from Leagle.com. CONTEXTLOGIC INC: ClaimsFiler Reminds of July 16 Deadline --------------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors of pending deadline in the following securities class action lawsuit: ContextLogic Inc. (WISH) Class Period: 12/16/2020 - 5/12/2021, or purchase of shares issued either in or after the December 2020 Initial Public Offering Lead Plaintiff Motion Deadline: July 16, 2021 SECURITIES FRAUD, MISLEADING PROSPECTUS To learn more, visit https://www.claimsfiler.com/cases/view-contextlogic-inc-wish-securities-litigation If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. To learn more about ClaimsFiler, visit www.claimsfiler.com [GN] CONTEXTLOGIC INC: Rosen Law Reminds Investors of July 16 Deadline ----------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of ContextLogic Inc. (NASDAQ: WISH) who: (1) purchased or otherwise acquired publicly traded ContextLogic securities between December 16, 2020 and May 12, 2021, inclusive (the "Class Period"); and/or (2) purchased or otherwise acquired ContextLogic common stock pursuant and/or traceable to the offering documents issued in connection with the Company's initial public offering conducted on or about December 16, 2020 (the "IPO" or "Offering"). If you wish to serve as lead plaintiff, you must move the Court no later than July 16, 2021. SO WHAT: If you purchased ContextLogic securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the ContextLogic class action, go to http://www.rosenlegal.com/cases-register-2097.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. If you wish to serve as lead plaintiff, you must move the Court no later than July 16, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020 founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, the Offering documents and defendants made false and/or misleading statements and/or failed to disclose that: (1) ContextLogic's fourth quarter 2020 monthly active users ("MAUs") had declined materially and were not then growing; and (2) as a result of the foregoing, defendants materially overstated the Company's business metrics and financial prospects. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the ContextLogic class action, go to http://www.rosenlegal.com/cases-register-2097.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome.[GN] CREDIT SUISSE: Law Firm Joins Securities Class Action Lawsuit ------------------------------------------------------------- Brenna Neghaiwi at Reuters reports that law firm Frank R. Cruz said it was participating in a lawsuit against Credit Suisse (CSGN.S) over the Swiss bank's dealings with Archegos and Greensill. The City of St. Clair Shores Police & Fire Retirement System, based in St. Clair Shores, Michigan, in April filed a class action lawsuit against the bank in federal court in Manhattan, accusing the Swiss bank of misleading investors and mismanaging risk exposure to high-risk clients, alleging violations of federal securities laws. Credit Suisse has been plunged into crisis after losing more than $5 billion from the collapse of U.S. investment firm Archegos and suspending funds linked to collapsed British supply chain finance company Greensill Capital. The fallout has prompted internal and external investigations, sackings and a capital raise at Switzerland's second-largest lender, in what new chairman and veteran banker Antonio Horta-Osorio had described as his biggest challenge yet. Its share price has fallen nearly 30% since the beginning of March, when it first disclosed issues related to its Greensill-linked supply chain finance funds. Credit Suisse investors have until June 15 to file a lead plaintiff motion in the lawsuit. Credit Suisse declined comment.[GN] CREE INC: Briefing on Class Certification in Wedra Suit Extended ---------------------------------------------------------------- In the case, STEPHANIE WEDRA, individually and on behalf of others similarly situated, Plaintiff v. CREE, INC., Defendant, Case No. 19 CV 3162 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York: (i) denied Cree's motion to dismiss for lack of subject matter jurisdiction; (ii) granted the Plaintiff's letter-motion for an extension of the current class certification briefing schedule; and (iii) terminated without prejudice the Plaintiff's motion for class certification and Cree's two motions to strike two of the Plaintiff's expert reports. Plaintiff Wedra brings the putative class action against Defendant Cree, under New York General Business Law Sections 349 and 350, and for fraudulent misrepresentation and concealment, based on her purchase of Cree's 60-Watt and 75-Watt LED light bulbs from a Home Depot store in Westchester County. According to the Plaintiff, although Cree's packaging and advertising claimed that "(1) the bulbs would last 22+ or 45+ years"; (2) she would "save upwards of hundreds of dollars per bulb over the lifetime of the bulbs"; and (3) "the bulb would perform better than less expensive LED and non-LED bulbs," the light bulbs she purchased burned out within six months of her purchase. Now pending are the following: (i) the Plaintiff's motion for class certification; (ii) Cree's motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1); (iii) Cree's two motions to strike two of the Plaintiff's expert reports; and (iv) the Plaintiff's motion for an extension of class certification briefing schedule. I. Rule 12(b)(1) Motion Cree argues the Plaintiff lacks standing to bring this case because she testified she bought the bulbs "using her mother's money for her mother's use in her mother's home." According to Cree, this means the Plaintiff's mother -- not the Plaintiff herself -- purchased the bulbs at issue, and therefore the Plaintiff has not suffered an injury for Article III standing based upon expected energy savings because her mother -- not the Plaintiff -- would have realized such savings. Judge Briccetti notes that the Plaintiff argues she was injured because she paid a price premium for the light bulbs based on the expectation of higher energy savings and a longer bulb-life. During her deposition, when asked whose money she used to purchase the light bulbs at issue in the case, she responded, "I used my money." And although the Plaintiff did testify that her mother sometimes gave her cash, she did not testify that her mother gave her cash specifically for the purpose of buying the light bulbs at issue or that her mother gave her the specific cash she used to buy the bulbs. Rather, the Plaintiff testified that she had her cash in her wallet and that she believed she used that cash to buy the light bulbs. Hence, the Plaintiff has met her burden to establish Article III standing. II. Request for Extension On Jan. 22, 2021, the Court issued the Second Revised Discovery Plan and Scheduling Order, which set a briefing schedule for the parties' class certification and related motions. On Feb. 26, 2021, the Plaintiff filed a motion for class certification. On April 30, 2021, Cree filed two motions to strike. By letter-motion dated May 11, 2021, the Plaintiff requests an extension of the briefing schedules for the pending motions. She notes that she might file a motion to strike. She also submitted a proposed revised Civil Case Discovery Plan and Scheduling Order. Cree consented to the proposed extended dates. Judge Briccetti granted the requested briefing extensions. The Judge will separately sign and docket the Third Revised Civil Case Discovery Plan and Scheduling Order. However, given the now lengthy briefing schedule, and in the interest of judicial economy and efficiency, Judge Briccetti terminated the pending motion for class certification and the motions to strike without prejudice to re-filing. With respect to these three terminated motions and the Plaintiff's contemplated motion to strike, the parties will serve upon each other all papers in support of these four motions in accordance with the Third Revised Civil Case Discovery Plan and Scheduling Order. However, the parties are ordered not to file their motion papers on the ECF docket on their due dates. Rather, the parties are directed to file all motion papers on the ECF docket on Oct. 1, 2021, or on the date the motions are fully briefed, whichever is later. As soon as practicable thereafter, the parties will submit courtesy copies to the Court in accordance with Judge Briccetti's Individual Practices. The courtesy copies will bear on the top of each page the ECF header automatically printed by the Court's Electronic Case Filing system. The Clerk is instructed to terminate the motions. A full-text copy of the Court's May 24, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/uv3et5tu from Leagle.com. DANIMER SCIENTIFIC: Glancy Prongay Reminds of July 13 Deadline -------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming July 13, 2021 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Danimer Scientific Inc. ("Danimer" or the "Company") (NYSE: DNMR) securities between October 5, 2020 and May 4, 2021, inclusive (the "Class Period"). If you suffered a loss on your Danimer investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at https://www.glancylaw.com/cases/danimer-scientific-inc/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. March 20, 2021, The Wall Street Journal published an article entitled "Plastic Straws That Quickly Biodegrade in the Ocean? Not Quite, Scientists Say" addressing, among other things, Danimer's claims that Nodax, a plant-based plastic that Danimer markets, breaks down far more quickly than fossil-fuel plastics. The article alleges that according to several experts on biodegradable plastics, "many claims about Nodax are exaggerated and misleading." According to the article, Jason Locklin, the expert who co-authored the study touted by Danimer as validating its material, stated that Danimer's marketing is "sensationalized" and that making broad claims about Nodax's biodegradability "is not accurate" and is "greenwashing." On this news, the Company's stock price fell $6.43 per share, or roughly 13%, to close at $43.55 per share on March 22, 2021. On April 22, 2021, Spruce Point Capital Management ("Spruce Point") published a research report entitled "When the Tide Goes Out, What Will Wash Ashore?" In addition to the concerns about Danimer's product biodegradability claims, the report found "multiple conflicting sources of Danimer's facility sizes and production capacity" and "inconsistencies between reported figures and city filings for Kentucky facility capital costs." The report also raised doubts about the strength of the Company's purported partnerships with Pepsi and Nestlé because Pepsi recently sold its equity stake in Danimer and "both the top Pepsi and Nestlé executives with close relationships to Danimer recently resigned." On this news, the Company's stock price fell $2.01, or 8%, to close at $22.99 per share on April 22, 2021, on unusually heavy trading volume. On May 4, 2021, Spruce Point published a follow-up report. Citing information obtained via a Freedom of Information Act ("FOIA") request from the Kentucky Department of Environmental Protection, the report alleged that "Danimer's production figures, its pricing, and rosy financial projections are wildly overstated" and that its Kentucky facility received a notice of compliance violations from the Division for Air Quality. Moreover, "Danimer's PHA average selling price appears to be 30% - 42% below management's claims." On this news, the Company's stock price fell $4.48, or 20%, over three consecutive trading sessions to close at $17.66 per share on May 6, 2021, on unusually heavy trading volume. The complaint filed alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that biodegradable materials such as Nodax could take years to break down; (2) that, as a result, the Company's marketing claims that Nodax products could biodegrade within months were exaggerated and misleading; (3) that monthly biopolymer production and natural gas usage at the Company's Kentucky and Georgia facilities were materially overstated; (4) that Danimer faced compliance violations for its Kentucky facility from the Division of Air Quality; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. The first-filed case is pending in the United States District Court for the Eastern District of New York, captioned Rosencrants v. Danimer Scientific, Inc., et al., Case No. 1:21-cv-02708. If you purchased or otherwise acquired Danimer securities during the Class Period, you may move the Court no later than July 13, 2021 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. [GN] DAPPER LABS: Rosen Law Discloses Securities Class Action Lawsuit ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the non-fungible tokens ("NFTs") of Dapper Labs, Inc. - NBA Top Shot Moments. The lawsuit seeks to recover damages for investors. A class action lawsuit has already been filed. To join the class action, go to http://www.rosenlegal.com/cases-register-2096.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, the defendants: (1) reaped hundreds of millions of dollars in profits by selling unregistered securities to investors; (2) ensured that money stayed on the platform, propping up the market for Moments as well as the overall valuation of NBA Top Shot, by preventing investors from withdrawing their funds for months on end; and (3) as a result of defendants' issuance, promotion, and sale of unregistered securities, investors have suffered significant damages. A class action lawsuit has already been filed. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-2096.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] DESIGNER BRANDS: Dismissal of Count I in LaGuardia TCPA Suit Denied ------------------------------------------------------------------- In the case, Eric LaGuardia, et al., Plaintiffs v. Designer Brands Inc., et al., Defendants, Case No. 2:20-cv-2311 (S.D. Ohio), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio, Eastern Division, denied the Defendants' Motion to Dismiss Count I of the Amended Complaint. Plaintiffs Eric LaGuardia, Sophia Wingate, Nicole Austin, and Lindsey Rucker brought the class action lawsuit alleging Defendants Designer Brands, Inc. and DSW Shoe Warehouse, Inc. violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, et seq., by sending them unwanted, automated spam text messages. The Plaintiffs' Amended Complaint asserts two claims for relief; only Count I is at issue and that claim alleges that DSW violated the TCPA by sending spam text messages in July and August of 2019. Relevant to Count I, the TCPA prohibits telephone calls made using an automatic dialing system or prerecorded voice. The Plaintiffs assert that Defendant DSW sent them text messages through the use of a random or sequential number generator and these communications were made en masse without the Plaintiffs' prior consent. Their alleged injuries include invasion of privacy, costs associated with receiving spam text messages, reduced phone storage due to the text messages, decreased battery power, and slower cellular service. After the Court denied a Motion for Judgment on the Pleadings, the Defendants moved to dismiss Count I of the First Amended Complaint on the grounds that the Court lacks subject matter jurisdiction over that claim. The Plaintiffs responded in opposition and the Defendants replied. Each side then filed numerous notices of supplemental authority. DSW moves to dismiss Count I for lack of subject matter jurisdiction relying on the recent Supreme Court decision in Barr v. Am. Ass'n of Political Consultants, ___ U.S. ___, 140 S.Ct. 2335 (2020) ("the AAPC decision") to argue that the TCPA was unconstitutional from 2015 through July 2020 because it imposed an impermissible content-based restriction on speech. The Plaintiffs oppose dismissal, arguing that the AAPC decision left the portion of the TCPA relevant to this action intact and enforceable. Alternatively, the Plaintiffs move for leave to amend their complaint in the event that the Motion to Dismiss is granted. DSW contends that under AAPC, the robocall restriction is unconstitutional retrospectively for the years between 2015 (when the government exception was added to the TCPA) and July 2020 (after AAPC was decided) because the government debt exception violated the First Amendment and equal protection principles. Because the text messages at issue in this case were sent in the summer of 2019, DSW claims the Court lacks subject matter jurisdiction over Count I. Judge Morrison opines that since the AAPC decision was issued less than a year ago, district courts have split on the application of AAPC to TCPA claims arising between 2015 and 2020. Two courts have adopted DSW's argument that the severability of the government debt exception is not retroactive so the entire statutory restriction was invalid during the time that the amendment was in effect. The general rule is that "an unconstitutional statutory amendment 'is a nullity' and 'void' when enacted, and for that reason has no effect on the original statute." The original statute at issue, 47 U.S.C. Sect 227(b)(a)(A)(iii), had no constitutional defects prior to the 2015 amendment. So when the AACP Court concluded that it could sever the government debt exemption from the rest of Section 227(b), that amendment was void at its inception in 2015 and had no effect on the pre-2015 text of the statute, Judge Morrison holds. In other words, the effect is as if the amendment had never happened and the pre-2015 statute's enforceability is unaffected by the amendment. For these reasons, Judge Morrison denied the Defendants' Motion to Dismiss Count I of the Amended Complaint. The Plaintiffs' alternative request for leave to file an amended complaint is moot. A full-text copy of the Court's May 24, 2021 Opinion & Order is available at https://tinyurl.com/ym43zemv from Leagle.com. DEVON ENERGY: Class Settlement in Price FLSA Suit Gets Approval --------------------------------------------------------------- In the case, JOHN PRICE, Individually and for others similarly situated, Plaintiff v. DEVON ENERGY CORPORATION, Defendant, Case No. 2:20-cv-00316-KWR-GJF (N.N.M.), Judge Kea W. Riggs of the U.S. District Court for the District of New Mexico granted the Plaintiff's Unopposed Motion to Approve FLSA Settlement, Attorneys' Fees and Costs and Plaintiff's Service Award. The parties are proceeding on the FLSA collective action and are not proceeding on the Rule 23 class action claim. In light of their response, Judge Riggs finds that the parties have created an adequate record explaining why prior notice to the opt-in class is not necessary. The parties will send notice to the proposed collective action members to opt-in, and therefore the settlement does not bind them unless they opt in. Each individual will in effect receive an individual settlement offer, and each person can decide to accept or reject the offer. Judge Riggs notes that generally, the Court does not require judicial approval of a settlement in an FLSA collective action. It also does not require a fairness hearing under these circumstances. The Judge finds no need to review the merits of settlement agreement in the case. Alternatively, she finds that based on the record created by the parties, she will approve the settlement, proposed notice to opt-in collective action members, the attorneys' fees, and the Plaintiff's service award. In reaching this conclusion, Judge Riggs finds (i) a bona fide dispute exists between the parties; (ii) there is no apparent defect in the negotiation of the settlement; (iii) the settlement is fair, reasonable, and equitable to all parties concerned; (iv) the proposed settlement contains a reasonable award of attorneys' fees based on a reasonable contingency fee of 40% and the Johnson factors; and (v) the Plaintiff's requested service award of $5,000 is reasonable. Moreover, the Judge approves the notice procedure and form proposed by the parties. Based on the foregoing, Judge Riggs granted the Plaintiff's Unopposed Motion. The Court's Order to Show Cause is quashed. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/49hbezhb from Leagle.com. DRESSER LLC: Court Denies Bid to Compel Depositions in Barton Suit ------------------------------------------------------------------ In the case, MICHELLE BARTON, ET AL. v. DRESSER, LLC, ET AL., Civil Action No. 20-502-BAJ-RLB (M.D. La.), Magistrate Judge Richard L. Bourgeois, Jr., of the U.S. District Court for the Middle District of Louisiana: (i) denied without prejudice the Plaintiffs' Motion to Compel Depositions; and (ii) denied as moot the Motion to Expedited Motion to Extend Deadline to Respond to Plaintiffs' Motion to Compel filed by Defendants Dresser, LLC and Baker Hughes Holdings LLC. On June 11, 2020, Michelle Barton and William Barton, Jr. brought the purported class action in state court naming as Defendant the Louisiana Department of Environmental Quality. The Plaintiffs seek damages on behalf of themselves and a proposed class of similarly situated owners, renters and residents whose property was allegedly contaminated by a toxic release of chlorinated compounds, including Trichloroethylene ("TCE"), as a result of the operation of Dresser's industrial valve manufacturing facility in Pineville, Louisiana. The Plaintiffs amended the action to bring claims against Dresser for negligence, negligence per se, trespass, strict liability, and violations of the Louisiana Groundwater Act. Dresser removed the action on Aug. 5, 2020. On April 15, 2021, the Plaintiffs filed their Motion to Compel Depositions, which seeks an order requiring Dresser to produce certain fact witnesses for depositions relevant to class certification. On April 16, 2021, Dresser filed a Motion to Transfer Action to the Alexandria Division of the U.S. District Court for the Western District of Louisiana. The motion seeks transfer under 28 U.S.C. Section 1404(a), which provides for the transfer of civil actions to an otherwise proper forum that is more convenient for the parties and witnesses and in the interests of justice. Among other things, Dresser indicates that the lawsuit "is one of 14 federal lawsuits concerning the presence of chlorinated solvents, including TCE, in groundwater and other environmental media in Pineville, Louisiana," and that 12 of the actions are proceeding in the Alexandria Division of the U.S. District Court for the Western District of Louisiana -- the division and district where the alleged contamination exists. On April 29, 2021, Dresser filed the instant Motion to Extend Deadline, which seeks an extension of Dresser's deadline to respond to the Plaintiffs' Motion to Compel Depositions until 14 days after the district judge rules on Dresser's pending Motion to Transfer. In essence, Dresser requests that the resolution of the Motion to Compel (as well as the taking of any depositions) not occur unless the Court denies the Motion to Transfer. Among other things, Dresser notes that the magistrate judge presiding over the 12 related cases pending in the Alexandria Division of the U.S. District Court for the Western District of Louisiana issued a case management order on April 8, 2021, providing deadlines and instructions regarding pre-certification discovery, including limitations on the taking of depositions. Several of those related cases, and the applicable case management order, involve the same law firm representing the class representatives in the instant matter. On May 3, 2021, the Court found good cause to stay Dresser's deadline to oppose the Plaintiffs' Motion to Compel Depositions until resolution of Dresser's Motion to Extend Deadline. As stated, the motion is unopposed as the Plaintiffs did not file a timely opposition. Judge Bourgeois has reviewed Dresser's Motion to Transfer and associated briefing. Given the issues raised by the Motion to Transfer and considering the various discovery related postures in all of the referenced cases, the Judge will deny the Plaintiff's Motion to Compel Depositions without prejudice to refile after the district judge issues a ruling on the Motion to Transfer. This will provide the parties an additional opportunity to meet-and-confer regarding the depositions should the Motion to Transfer be denied. The parties may continue with any other "unobjected to" discovery that does not otherwise conflict with the limitations set in the Western District of Louisiana Case Management Order referenced above. A revised scheduling order may be issued in the matter should the Motion to Transfer be denied. Based on the foregoing, Judge Bourgeois denied the Plaintiffs' Motion to Compel Depositions without prejudice to refile after the district judge issues a ruling on Dresser's Motion to Transfer. The Judge denied as moot Dresser's Expedited Motion to Extend Deadline to Respond to Plaintiffs' Motion to Compel. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/4xv6x893 from Leagle.com. DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending ---------------------------------------------------------- DXC Technology Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 28, 2021, for the fiscal year ended March 31, 2021, that the appeal on the order of dismissal of the purported class action suit entitled In re DXC Technology Company Securities Litigation, is pending. On December 27, 2018, a purported class action lawsuit was filed in the United States District Court for the Eastern District of Virginia against the Company and two of its current officers. The lawsuit asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and is premised on allegedly false and/or misleading statements, and alleged non-disclosure of material facts, regarding the Company's business, operations, prospects and performance during the proposed class period of February 8, 2018 to November 6, 2018. The Company moved to dismiss the claims in their entirety, and on June 2, 2020, the court granted the Company's motion, dismissing all claims and entering judgment in the Company's favor. On July 1, 2020, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. The appeal has been fully briefed and a decision on the appeal remains pending. DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. DXC TECHNOLOGY: Bid for Initial Certification in Forsyth Granted ---------------------------------------------------------------- DXC Technology Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 28, 2021, for the fiscal year ended March 31, 2021, that the court in Forsyth, et al. v. HP Inc. and Hewlett Packard Enterprise granted Plaintiffs' motion for preliminary certification and lifted the previously imposed stay of the action, granted Plaintiffs' motion for preliminary certification and lifted the previously imposed stay of the action. On August 18, 2016, this purported class and collective action was filed in the U.S. District Court for the Northern District of California, against HP and HPE alleging violations of the Federal Age Discrimination in Employment Act ("ADEA"), the California Fair Employment and Housing Act, California public policy and the California Business and Professions Code. Former business units of HPE now owned by the Company may be proportionately liable for any recovery by plaintiffs in this matter. Plaintiffs seek to certify a nationwide class action under the ADEA comprised of all U.S. residents employed by defendants who had their employment terminated pursuant to a work force reduction ("WFR") plan and who were 40 years of age or older at the time of termination. The class seeks to cover those impacted by WFRs on or after December 2014. Plaintiffs also seek to represent a Rule 23 class under California law comprised of all persons 40 years of age or older employed by defendants in the state of California and terminated pursuant to a WFR plan on or after August 18, 2012. In January 2017, defendants filed a partial motion to dismiss and a motion to compel arbitration of claims by certain named and opt-in plaintiffs who had signed release agreements as part of their WFR packages. In September 2017, the Court denied the partial motion to dismiss without prejudice, but granted defendants' motions to compel arbitration for those named and opt-in plaintiffs. The Court stayed the entire action pending arbitration for these individuals, and administratively closed the case. A mediation was held in October 2018 with the 16 named and opt-in plaintiffs who were involved in the case at that time. A settlement was reached, which included seven plaintiffs who were employed by former business units of HPE that are now owned by the Company. In June 2019, a second mediation was held with 145 additional opt-in plaintiffs who were compelled to arbitration pursuant to their release agreements. In December 2019, a settlement was reached with 142 of the opt-in plaintiffs, 35 of whom were employed by former business units of HPE that are now owned by the Company, and for which the Company was liable. In December 2020, Plaintiffs filed a motion for preliminary certification of the collective action, which Defendants opposed. In April 2021, the court granted Plaintiffs' motion for preliminary certification and lifted the previously imposed stay of the action. DXC said, "Former business units of the Company now owned by Perspecta may be proportionately liable for any recovery by plaintiffs in this matter." DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. DXC TECHNOLOGY: California Consolidated Class Suit Dismissed ------------------------------------------------------------ DXC Technology Company said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 28, 2021, for the fiscal year ended March 31, 2021, that the court granted the company's motion to dismiss the consolidated purported class action suit in California. On August 20, 2019, a purported class action lawsuit was filed in the Superior Court of the State of California, County of Santa Clara, against the Company, directors of the Company, and a former officer of the Company, among other defendants. On September 16, 2019, a substantially similar purported class action lawsuit was filed in the United States District Court for the Northern District of California against the Company, directors of the Company, and a former officer of the Company, among other defendants. On November 8, 2019, a third purported class action lawsuit was filed in the Superior Court of the State of California, County of San Mateo, against the Company, directors of the Company, and a former officer of the Company, among other defendants. The third lawsuit was voluntarily dismissed by the plaintiff and re-filed in the Superior Court of the State of California, County of Santa Clara on November 26, 2019, and thereafter was consolidated with the earlier-filed action in the same court on December 10, 2019. The California lawsuits assert claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, and are premised on allegedly false and/or misleading statements, and alleged non-disclosure of material facts, regarding the Company's prospects and expected performance. Plaintiff in the federal action filed an amended complaint on January 8, 2020. The putative class of plaintiffs in these cases includes all persons who acquired shares of the Company's common stock pursuant to the offering documents filed with the Securities and Exchange Commission in connection with the April 2017 transaction that formed DXC. On July 15, 2020, the Superior Court of California, County of Santa Clara, denied the Company's motion to stay the state court case but extended the Company's deadline to seek dismissal of the state action, until after a decision on the Company's motion to dismiss the federal action. The Company has since moved to dismiss the state action, and the court has continued the motion until after the outcome of the federal action. On July 27, 2020, the United States District Court for the Northern District of California granted the Company's motion to dismiss the federal action. The Court's order permitted plaintiffs to amend and refile their complaint within 60 days, and on September 25, 2020, the plaintiffs filed an amended complaint. On November 12, 2020, the Company filed a motion to dismiss the amended complaint. On April 30, 2021, the Court granted the Company's motion to dismiss the amended complaint, while granting Plaintiffs leave to amend and refile their complaint within 30 days. DXC Technology Company, together with its subsidiaries, provides information technology services and solutions primarily in North America, Europe, Asia, and Australia. It operates through three segments: Global Business Services (GBS), Global Infrastructure Services (GIS), and United States Public Sector (USPS). DXC Technology Company was founded in 1959 and is headquartered in Tysons, Virginia. EASTLAND MALL: Beaver Wins Final Class Certification Under FLSA --------------------------------------------------------------- In the case, KEJUANA BEAVER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. EASTLAND MALL HOLDINGS, LLC, et al., Defendants, Case No. 2:20-cv-485 (S.D. Ohio), Judge Edmund A. Sargus, Jr., of the U.S. District Court for the Southern District of Ohio, Eastern Division, grants the Plaintiffs' Motion for Final FLSA Class Certification and Request for Damages Hearing. The Named Plaintiffs filed the action on Jan. 28, 2020, alleging violations of the Fair Labor Standards Act and Ohio wage law against Defendants Eastland Mall Holdings, LLC, and Group 7 Staffing, LLC. The Defendants operate a shopping mall, Eastland Mall, located in Franklin County, Ohio. The Plaintiffs allege that they are employed at Eastland Mall in various hourly, non-exempt positions. They allege that the Defendants have failed to pay them overtime compensation at a rate of one and one-half times their regular rates of pay for hours worked in excess of 40 during a workweek. Instead, they allege, the Defendants compensate them at their regular rates of pay for all hours worked, even in excess of 40 hours per week. The Plaintiffs have all requested paystubs from the Defendants, but the Defendants have failed to provide the requested paystubs. Count One of the Second Amended Complaint seeks relief under the FLSA, 29 U.S.C. Section 201, et seq. The Plaintiffs pursue these claims on behalf of themselves and all other similarly situated as a representative action under the FLSA's opt-in provision, 29 U.S.C. Section 216(b). Count Two seeks relief under the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code Section 4111, et seq., and Fed. R. Civ. P. 23 as a class action on behalf of the Plaintiffs and all other members of the class. Count Three alleges that Defendants violated Ohio Rev. Code Section 4113.15 by failing to compensate the Plaintiffs within 30 days of the performance of compensable work. Count Four alleges on behalf of Named Plaintiff Askia Champion that the Defendants engaged in unlawful retaliation under the FLSA. On Jan. 8, 2021, the Court granted the Plaintiffs' Motion for Conditional FLSA Class Certification and Rule 23 Class Certification. In that Order, the Court conditionally certified the following FLSA Class: All individuals currently and formerly employed by Defendants at Eastland Mall during the previous three years, who were paid on an hourly basis, and who did not receive overtime payment at a rate of one and one-half times their regular rate pay for all hours worked in a workweek in excess of 40 (Hourly Employees). The Court also approved distribution of the Plaintiffs' proposed notice and a 45-day opt-in period. On March 22, 2021, the Court granted the Plaintiffs' Motion for Default Judgment against the Defendants, finding the Defendants liable under the FLSA and Ohio law. It indicated that it would hold a damages hearing after the Plaintiffs moved for final certification under the FLSA. Following the opt-in period, the Plaintiffs move for final certification of the opt-in class under the FLSA. Two opt-in Plaintiffs have joined the action. Judge Sargus opines that the Plaintiffs have met their burden to show that the opt-in Plaintiffs are similarly situated. The Plaintiffs have not been able to obtain discovery because that the Defendants are in default and have not complied with the Court's prior orders to produce documents related to that the Plaintiffs' employment. Nonetheless, that the Plaintiffs have submitted sufficient proof that they suffered from a "single, FLSA-violating policy." The Named Plaintiffs and that the opt-in Plaintiffs were employed on an hourly basis in administrative, security, and maintenance positions at Eastland Mall; all worked hours in excess of 40; none were compensated at a rate of time and one-half for the hours worked in excess of 40. Paystubs submitted by Plaintiff Baylor document that the Defendants did not pay time-and-a-half for hours worked in excess of 40. Indeed, the Court already granted class certification under Fed. R. Civ. P. 23(b), which is a more demanding standard than final certification under Section 216(b) of the FLSA. Accordingly, Judge Sargus grants the Plaintiffs' Motion for Final FLSA Class Certification. As the Court indicated in its order granting default judgment, the Judge will set the matter for a hearing to determine that the Plaintiffs' damages, as well as that the Plaintiffs' counsel's attorneys' fees and costs. A notice setting a damages hearing will issue on the docket forthwith. The case is to remain open. A full-text copy of the Court's May 24, 2021 Opinion & Order is available at https://tinyurl.com/ttfk3kp7 from Leagle.com. EMERGENT BIOSOLUTIONS: Thornton Law Reminds of June 18 Deadline --------------------------------------------------------------- The Thornton Law Firm alerts investors that a class action lawsuit has been filed on behalf of investors of Emergent BioSolutions Inc. (NYSE:EBS). The case is currently in the lead plaintiff stage. Investors who purchased EBS stock or other securities between April 24, 2020 and April 16, 2021 may contact the Thornton Law Firm's investor protection team by visiting www.tenlaw.com/cases/Emergent to submit their information. Investors may also email investors@tenlaw.com or call 617-531-3917. The case alleges that Emergent and its senior executives made misleading statements to investors and failed to disclose that: (i) Emergent's Baltimore plant had a history of manufacturing issues increasing the likelihood for massive contaminations; (ii) these longstanding contamination risks and quality control issues at Emergent's facility led to a string of U.S. Food and Drug Administration citations; and (iii) Emergent previously had to discard the equivalent of millions of doses of COVID-19 vaccines after workers at the Baltimore plant deviated from manufacturing standards. Interested Emergent investors have until June 18, 2021 to retain counsel and apply to be a lead plaintiff if they are interested to do so. Investors do not need to be a lead plaintiff in order to be a class member. A lead plaintiff acts on behalf of all other investor class members in managing the class action. If investors choose to take no action, they can remain an absent class member. The class has not yet been certified. Until certification occurs, investors are not represented by an attorney. FOR MORE INFORMATION: www.tenlaw.com/cases/Emergent Thornton Law Firm's securities attorneys are highly experienced in representing investors in recovering damages caused by violations of the securities laws. Its attorneys have established track records litigating securities cases in courts throughout the country and recovering losses on behalf of investors. This may be considered Attorney Advertising in some jurisdictions. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] FIRST AMERICAN: Denial of Munro's Bid for Leave to Amend Affirmed ----------------------------------------------------------------- In the case, JASON MUNRO, Plaintiff and Appellant v. FIRST AMERICAN TITLE COMPANY, Defendant and Respondent, Case No. B295805 (Cal. App.), the Court of Appeals of California for the Second District, Division Five, affirmed the trial court's order denying Munro's motion for leave to amend complaint. Plaintiff Munro sued Defendant First American Title Co. (FATCO) and related entities in 2007, alleging various state law claims. Among them was a claim under California's Unfair Competition Law (UCL) that was predicated on an alleged violation of the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. Section 2601, et seq.). Some 12 years after the lawsuit was filed, Munro sought leave to file a fourth amended complaint that would add a freestanding RESPA claim (i.e., a violation of RESPA itself, not a violation alleged as a UCL predicate). Mr. Munro and another named Plaintiff, Elizabeth Wilmot, purchased homes in California and received title and escrow services from FATCO. In 2007, they filed a putative class action alleging, among other things, they were referred to FATCO for title and escrow services by third parties who received "unlawful inducements" (alternately characterized as referrals or kickbacks) from FATCO. The complaint alleged the inducements violated the UCL because they are unlawful under RESPA, which prohibits giving or receiving anything of value "pursuant to any agreement or understanding that business incident to or a part of a real estate settlement service involving a federally related mortgage loan will be referred to any person." The complaint did not include a standalone RESPA claim, however, and the complaint took care to assert federal jurisdiction over the action does not exist. After two intervening amendments, Munro filed the operative third amended complaint in 2010. It defines a subclass of persons who paid for title insurance or escrow services by FATCO for property located in California "who were referred to FATCO by a home builder or developer who received a commission, compensation, kickback, or other consideration or thing of value from FATCO." Munro, the only named Plaintiff belonging to this putative subclass, alleges he was referred to FATCO by the developer of his property and the developer received discounts and services from FATCO. Like all the complaints that preceded it, the operative complaint alleged these referrals or kickbacks constituted unfair competition because they are unlawful under RESPA. No freestanding RESPA claim was alleged, and the complaint continued to include an assertion that "federal jurisdiction does not exist" -- plus the further statement that Munro was seeking class-wide "damages, restitution, and disgorgement of monies wrongfully taken" but not "fines or an administrative penalty." The operative complaint additionally alleged other state law causes of action for breach of fiduciary duty, fraud, and constructive fraud, and these were based, in part, on allegations of inducements paid to homebuilders and developers for referrals. Mr. Munro deposed witnesses employed by the developer of his property and FATCO in 2008. He also served interrogatories and requests for production of documents relating to the alleged RESPA violations in 2010 and 2011. The case was stayed intermittently between 2009 and 2016 as the result of a motion to disqualify FATCO's attorneys, various motions in related cases, and appeals. In April 2018, Munro moved for leave to file a fourth amended complaint, adding a freestanding RESPA claim. Munro did not explain why his earlier pleadings did not include a standalone RESPA claim, but he contended there would be no prejudice to FATCO because the amended complaint alleged no new facts and the alleged RESPA violation was already a predicate for recovery under the UCL. The only statements bearing on when Munro determined further amendment of the complaint was advisable and on the reasons why leave to amend was not sought earlier came in declarations submitted with Munro's reply brief in support of leave to amend. A declaration, authored by Richard Friedman (Friedman), one of Munro's attorneys, stated that after a review of all of the factual information obtained in discovery, extensive legal research, and many hours of consultation with experts, Munro's attorneys recently reached the conclusion that there was no viable class-wide damages theory available under the existing non-RESPA state causes of action, and that a freestanding RESPA cause of action provides an efficient, straightforward damages theory, readily susceptible to class treatment. A declaration by another of Munro's attorneys, Nazo Semerjian, stated, among other things, that FATCO "produced thousands of documents relating to Munro's homebuilder inducement claim, including communications with homebuilders evidencing the negotiation of fees for title and escrow services" in late 2016. After hearing argument from the counsel and soliciting supplemental briefing, the trial court denied Munro's motion for leave to amend. The trial court concluded Friedman's declaration was improperly submitted only in reply but, regardless, there still was no adequate explanation of when the facts giving rise to the proposed amendment were discovered and why the amendment was not made earlier. The court accordingly found that Munro's request for leave to amend was plagued by delay and, further, that FATCO was prejudiced by that delay. As to prejudice specifically, the trial court found the proposed amendment would prejudice FATCO in two related ways. First, because the only relief available to Munro under the UCL was restitution, FATCO had "focused its defensive efforts" and discovery practice on "determining whether restitution could be recovered, rather than on defending against the facts supporting the RESPA claim itself." Second, the court found defending against the statutory penalties recoverable under a freestanding RESPA claim would require depositions of third party builders for more than 600 developments concerning transactions that occurred as early as 15 years before, in 2003. The court concluded the proposed pleading change that would require FATCO to locate witnesses and discover what recollection they had of events long ago to defend against a RESPA claim was prejudicial. After the trial court denied leave to file a fourth amended complaint, Munro asked the trial court to dismiss his UCL claim (the last remaining claim in the operative complaint) to enable him to immediately take an appeal from the trial court's order denying further leave to amend the complaint. That is the appeal now before the Court for resolution. The Court of Appeals considers whether the trial court abused its discretion when it concluded Munro's delay in seeking leave to amend, and the prejudicial effect of such delay on FATCO, warranted denial of leave to amend. The Court of Appeals holds that the trial court was correct to deny Munro leave to file another amended complaint. In its view, Munro's inadequately explained delay in seeking leave to allege a standalone RESPA claim -- which smacks of a conscious, strategic choice to avoid removal of the action to federal court -- is reason enough to justify the trial court's decision. But the trial court further found the long delay in alleging a direct RESPA claim would prejudice FATCO, and this was undoubtedly correct: If yet another amendment were permitted, FATCO's ability to defend against assessment of statutory penalties would require the company to undertake far more extensive discovery than it had (to probe whether FATCO accepted any fee, kickback, or thing of value pursuant to an "agreement or understanding" with a developer), and undertaking such discovery would be more burdensome and less productive at this late date. For these reasons, the Court of Appeals affirmed the trial court's order. FATCO will recover its costs on appeal. A full-text copy of the Court's May 25, 2021 Opinion is available at https://tinyurl.com/54hb9xpb from Leagle.com. The Bernheim Law Firm, Steven J. Bernheim -- B@thebernheimlawfirm.com -- Nazo S. Semerjian -- N.Semerdjian@TheBernheimLawFirm.com; Friedman Rubin, Richard H. Friedman -- info@friedmanrubin.com; Shernoff Bidart Echeverria, Michael J. Bidart -- mbidart@shernoff.com -- and Steven P. Messner -- smessner@scottglovskylaw.com -- for Plaintiff and Appellant. Dentons US, Ronald D. Kent -- ronald.kent@dentons.com -- Joel D. Siegel -- joel.siegel@dentons.com -- Susan M. Walker -- susan.walker@dentons.com -- and Paul M. Kakuske -- paul.kakuske@dentons.com -- for Defendant and Respondent. FLEX LIMITED: Dismissal of Putative Class Suit Under Appeal ----------------------------------------------------------- Flex Ltd. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 19, 2021, for the fiscal year ended April 3, 2021, that the appeal made by the plaintiff in the putative class action suit filed before the Northern District of California, is ongoing. On May 8, 2018, a putative class action was filed in the Northern District of California against the Company and certain officers alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, promulgated thereunder, alleging misstatements and/or omissions in certain of the Company's financial results, press releases and SEC filings made during the putative class period of January 26, 2017 through April 26, 2018. On October 1, 2018, the Court appointed lead plaintiff and lead plaintiff's counsel in the case. On November 28, 2018, lead plaintiff filed an amended complaint alleging misstatements and/or omissions in certain of the Company's SEC filings, press releases, earnings calls, and analyst and investor conferences and expanding the putative class period through October 25, 2018. On April 3, 2019, the Court vacated its prior order appointing lead plaintiff and lead plaintiff's counsel and reopened the lead plaintiff appointment process. On September 26, 2019, the Court appointed a new lead plaintiff and lead plaintiff's counsel in the case. On November 8, 2019, lead plaintiff filed a further amended complaint. On December 4, 2019, Defendants filed a motion to dismiss the amended complaint. On May 29, 2020, the Court granted defendants' motion to dismiss without prejudice and gave lead plaintiff 30 days to amend. On June 29, 2020, lead plaintiff filed a further amended complaint. On July 27, 2020, defendants filed a motion to dismiss the amended complaint. On December 10, 2020, the Court granted defendants' motion to dismiss with prejudice and entered judgment in favor of defendants. On January 7, 2021, lead plaintiff filed a notice of appeal to the Ninth Circuit Court of Appeals. Lead plaintiff's opening appeal brief is due May 19, 2021, and defendants' answering brief is due June 18, 2021. Flex said, "Any existing or future lawsuits could be time-consuming, result in significant expense and divert the attention and resources of our management and other key employees, as well as harm our reputation, business, financial condition or results of operations." Flex Ltd. provides design, engineering, manufacturing, and supply chain services and solutions to original equipment manufacturers worldwide. It operates through High-Reliability Solutions, Industrial and Emerging Industries, Communications & Enterprise Compute, and Consumer Technologies Group segments. The company was formerly known as Flextronics International Ltd. and changed its name to Flex Ltd. in September 2016. Flex Ltd. was founded in 1990 and is based in Singapore. FLINT, MI: Jones' Water Crisis Suit Dismissed With Prejudice ------------------------------------------------------------ In the case, In re Flint Water Cases. This Order Relates To: Melvin Jones, Jr. v. Veolia North, Case No. 21-10937 (E.D. Mich.), Judge Judith E. Levy of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiff's application to proceed without prepaying fees and costs, and dismissed the case with prejudice. On April 27, 2021, the Plaintiff filed a complaint against Defendant Veolia North, and the case was assigned to the Hon. Arthur J. Tarnow. That same day, the Plaintiff applied to proceed in forma pauperis ("IFP"). He did not request a summons and has not served the complaint on any Defendant. Within the next three business days, the Plaintiff filed eight docket entries, ranging from a "notification of an upcoming confidential (via email) attempt at conciliation of the instant matter with Veolia and need to utilize Zoom platform for hearings," to a "Statement to Honorable Judge Tarnow as to allowing the case to go forward per continuing harm which relates to both Jones' IFP Motion and relates to his Motion for Class Certification." Judge Tarnow issued an order on May 3, 2021 indicating that, the facts set forth in the Plaintiff's Complaint are too vague for the Court to determine, at this juncture. He ordered the Plaintiff to amend his complaint to include a more definite statement on or before June 18, 2021, or the case would be dismissed. Following Judge Tarnow's Order, the Plaintiff's docket entries included the following: (1) a request that the Court amend the Plaintiff's complaint for him; (2) an amended complaint; (3) a supplemental amended complaint; and (4) an amended complaint. On May 10, 2021, the Case was reassigned to Judge Levy as a companion to the Flint Water Cases. The Plaintiff's original complaint is difficult to follow. He does not cite to any laws that he alleges were violated, nor does he set forth any other bases for sustaining his complaint. On the same day Judge Tarnow ordered the Plaintiff to submit a more definite statement, the Plaintiff filed an amended complaint against Defendant Veolia North. In it, he seeks appointment of counsel and he indicates that he is unable to determine if his lawsuit is appropriate for class certification. Days later, on May 6, 2021, the Plaintiff filed a Supplemental First Amended Complaint. He again includes a request for the appointment of counsel to assist him in ascertaining whether his case is eligible to proceed as a class action. In addition to Veolia North, the Plaintiff adds an additional claim against a new Defendant, the Napoli Law Firm, which he indicates is brought under 42 U.S.C. Section 1981 and 1982. The Plaintiff filed yet another amended complaint on May 17, 2021. This complaint lists even more parties and sets forth different legal theories from earlier iterations of his complaint. He lists the Plaintiffs as himself, "Federal EPA, City of Flint, Wells Fargo Bank, HUD, and The State of Michigan," and he lists Defendants as "Napoli Law Firm, attorney Patrick Lanciotti and attorney Hunter and Attorney Corey Stern." There is no indication that any of the Plaintiffs listed, besides himself, have joined the litigation, and in any event, he cannot serve as counsel to these entities because he is not a lawyer. As to the original Defendant Veolia North, he states that it is appropriate that Veolia be dismissed from the case. As to the named Defendants, the Plaintiff cites to 42 U.S.C. Sections 1981, 1982, 1983, 3613, and the Americans with Disabilities Act, with no further elaboration as to these specific statutes. He also states the following regarding the relief sought: 1. He seeks to have the State of Michigan Attorney General 'weigh-in' on her (e.g. AG Nessel's opinion in detail about the approximately over $200 million in attorney fees which the Plaintiffs' Attorneys are seeking as to the 'companion' case; 2. He seeks to have the Court ask the Michigan Attorney General (e.g. Dana Nessel) to 'weigh in' regarding named Defendants' alleged lack of compliance with Michigan State LARA regulation; and 3. He indicates that he also seeks the SAME 'weighing in' (e.g. Advisory Opinion) from the Michigan State Supreme Court as to the above two items set forth. In addition to the 79 docket entries the Plaintiff has filed as of the date of the Order, Plaintiff began emailing the Court and its staff beginning on Jan. 26, 2021. As of May 21, 2021, he has sent over 350 e-mails. The Plaintiff's IFP application is still pending. He has also filed the following motions: (1) a motion/application for appointment of counsel; (2) a motion for summary judgment on the pleadings; (3) an amended motion for class certification related to request for declaratory relief; (4) a motion to recuse/challenge for cause/a preemptory challenge to the Court; (5) a corrected motion to recuse/a preemptory challenge to the Court; (6) a motion to amend the case caption; (7) a motion for the Court to ask for advisory opinions from the State of Michigan Attorney General's office and the Michigan Supreme Court; (8) an "additional" motion as to ethical issues for the Michigan Supreme Court and Attorney General's office; (9) a motion that the Napoli Law Firm's "false claims not be tolerated" (ECF No. 65); and (10) a motion as to harm and damages. Analysis A. Plaintiff's IFP Application is Granted As an initial matter, Judge Levy granted the Plaintiff's application for IFP. The Plaintiff indicated that he is disabled, receives $794 for "food welfare and welfare" each month, is not employed, has $3 in his checking account and $21 in his savings account. He also has a MI-ABLE account and a Charles Schwab stock account that each carry a very small balance. The Judge finds that the Plaintiff has satisfied the requirements of Section 1915(a). B. Plaintiff's Complaint is Dismissed Judge Levy's independent inquiry regarding the Plaintiff's claims under Section 1915(a) mandates that the case be dismissed with prejudice. The Plaintiff has already dismissed Veolia North, so the Judge need not address whether this entity exists or whether the Plaintiff has set forth a claim against it. The Judge grants leave to permit the May 17, 2021 complaint to serve as the operative complaint. As set forth, the Plaintiff has set forth three items that he seeks as remedies in he case, namely, that the Michigan Attorney General and Michigan Supreme Court "weigh in" on two topics. He does not cite any statute that would authorize such relief. Where the Plaintiff does cite to statutes, he lists: 42 U.S.C. Sections 1981, 1982, 1983, 3613, and the Americans with Disabilities Act. But the Plaintiff does not describe how the Defendants are alleged to have violated these statues. Nor does he set forth facts that could support a viable claim under any of these statues. Accordingly, the Plaintiff's complaint is dismissed with prejudice. The Plaintiff is enjoined from further filings, as the case is now closed. To be clear: no further filings will be accepted from Plaintiff absent leave of the Court. In order to obtain leave, the Plaintiff must certify that the filings he presents have not been raised and disposed of in the Court or in the Court of Appeals and that they set forth a claim for relief as well as the basis for that claim. Any proposed filing must be described in a summary of no more than two pages. Moreover, the Plaintiff is enjoined from e-mailing, faxing, or otherwise contacting the Court, Court staff, or any United States District Court employee unless he complies with the requirements set forth above for seeking leave. His many emails to the Court are unauthorized and improper ex parte communications. C. Plaintiff's pending motions are denied because the case has been dismissed. The Plaintiff's case has been dismissed, and accordingly, all pending motions are denied as moot. Conclusion For the reasons she set forth, Judge Levy granted the Plaintiff's motion to proceed without prepayment of fees and costs. She dismissed his case with prejudice. All pending motions are denied as moot. No further filings or proceedings will take place in the matter without prior approval of the Court, as set forth. A full-text copy of the Court's May 24, 2021 Opinion & Order is available at https://tinyurl.com/yfb7u4ss from Leagle.com. FRANKLIN, TN: Partial Summary Judgment in Clarke Suit Affirmed -------------------------------------------------------------- In the case, JENNIFER CLARKE, ET AL. v. CITY OF FRANKLIN, Case No. M2020-00662-COA-R3-CV (Tenn. App.), the Court of Appeals of Tennessee at Nashville affirms in part, reverses in part, and vacates in part the trial court's order granting partial summary judgment in favor of the Plaintiffs and denying the Plaintiffs' request for an award of the attorney fees. The appeal arises from a class action lawsuit against the City of Franklin. The Plaintiffs are the owners of 188 properties, in five subdivisions, whose properties are subject to liens in connection with improvement assessments for sanitary sewer services. The City of Franklin is an incorporated municipality located in Williamson County, Tennessee, governed by a mayor and board of aldermen. Beginning in 2009, the City passed a series of ordinances and resolutions attempting to recoup the cost of sanitary sewer improvements for various subdivisions in accordance with Tennessee Code Annotated section 7-33-301, et seq. On May 26, 2009, the City passed the first of the resolutions and ordinances at issue. The resolution established an improvement assessment for the Highgate Subdivision. It provided that the sanitary sewer improvements for the Highgate Subdivision had been completed at a cost of $204,586.50. The resolution then calculated, for each of the benefited properties in the subdivision, a "Total Assessment" that would be owed by each property. The "Total Assessment" for each property varied, but the highest for any single property was $9,844. The resolution then designated the "Total Assessments" as "the 2009 Highgate Subdivision Area property assessments." The Highgate resolution never mentioned Tennessee Code Annotated section 7-33-301, et seq. Nevertheless, the City claims that the resolution was passed under the authority of these statutes. Two months later, the City passed a separate resolution for the Hooper Lane Subdivision. This time, the resolution specifically invoked Tennessee Code Annotated sections 7-33-101 to 314 and closely tracked the language of many of the applicable statutes. The Hooper Lane resolution did not calculate any "total assessment" amounts that would be owed by each property. Instead, the Hooper Lane resolution listed only the total estimated cost of the sanitary sewer improvement for the entire subdivision, and it provided that one hundred percent of the cost of the improvement would be assessed against the benefited properties. Thereafter, the City passed three ordinances addressing three additional subdivisions: Country Road Estates Subdivision, Boyd Mill Avenue Area, and Monticello Subdivision. Like the Hooper Lane resolution, each of these ordinances specifically invoked and tracked the language of Tennessee Code Annotated sections 7-33-101 to 314. The ordinances for the Country Road Estates Subdivision, the Boyd Mill Avenue Area, and the Monticello Subdivision all provided that the benefited property owners were given twenty years to pay off the assessments authorized by the ordinances. However, all of the ordinances specifically provided that "improvement assessments will be made annually by the Board when the levy of municipal property taxes is made and such assessments will be due at the same time or times as the municipal property taxes are due, and will be subject to the same penalties and interest, in the event of nonpayment, as are municipal property taxes." Despite the marked differences between the language in the Highgate resolution and the four resolutions and ordinances that followed, the City implemented them all in the same manner, using the approach described in the Highgate resolution. The resolutions and ordinances were all drafted by the city engineer for the City of Franklin, who was not an attorney. He was of the opinion that there was "no difference" between the resolutions and ordinances as far as the way they were established or how they operated. In all, there were 188 properties in the subdivisions that were benefited by the sanitary sewer improvements. For each benefited property, the City filed a "Notice of Lien" with the Register of Deeds, stating that the City had a lien against that property in the full amount of the total assessment that would be owed by each property over the life of the repayment period, according to the initial calculations of the City, not just the amount that would be due annually. The parties agree that the City was not required to file any notices of the liens because the liens attach automatically pursuant to the statute. The City claims that it made a business decision to file the notices of liens in order to notify potential purchasers of the benefited properties and any other lienholders about the City's lien. According to the complaint, the Plaintiffs had demanded that the City remove the lien for the full amount, but the City refused. The complaint alleged that the Plaintiffs were suffering irreparable injury in that the liens prevented the sale, refinancing, or transfer of their properties without payment of the full assessment amounts calculated by the City. The complaint proposed that the class of Plaintiffs include all current and former owners of the affected properties against which the City had recorded notices of liens for the total amounts of the assessments for sanitary sewer improvements. The two proposed subclasses would include those who had not yet suffered monetary damages but needed injunctive relief to avoid suffering damages, and those who had already suffered monetary damages in connection with a completed or attempted sale, refinancing, or transfer of title because of the outstanding liens. Essentially, the complaint alleged that the City had obtained illegal liens "through" its assessments. It requested a declaratory judgment that any lien against the benefited properties was limited to the amounts of annual assessments. The Plaintiffs pointed out that the City was purportedly acting pursuant to Tennessee Code Annotated sections 7-33-101 through 314. They quoted numerous statutes within that statutory scheme in an effort to demonstrate that improvement assessments are to be made "each year" and "assessed annually," with the liens attaching "at the time the annual improvement assessment is made." The Plaintiffs asserted that the ordinance addressing the Monticello Subdivision likewise provided that the assessments were to be made annually and concurrent with the levy of municipal property taxes. Thus, they alleged that the City "cannot attach a lien on property for which future annual assessments have not yet been made, and is therefore prevented from imposing a lien on a property for the full amount of the special assessment." The Plaintiffs sought a declaratory judgment to that effect and an injunction prohibiting the City from maintaining liens in the full amounts of the assessments, lifting the liens already imposed by the City, and limiting any future liens to annual liens authorized by the statutes. They also sought monetary damages for class members who had suffered economic loss as a result of their inability to sell or refinance existing mortgages on the properties due to the liens. The Plaintiffs also sought an award of their attorney fees. The City filed an answer and a motion to dismiss, which the trial court denied. The Plaintiffs then filed a motion for class certification, claiming that the City had imposed liens on all of the properties using the same criteria. Specifically, they alleged that the unlawful liens were for special sewer assessments that were not yet due under the applicable statutes. They claimed that the liens should be for hundreds of dollars but that the City was generally imposing liens of at least $6,000 per property. In response to the motion for class certification, the City insisted that there were some material differences in the ordinances and resolutions, and therefore, the motion should be denied or the class should be limited to a particular subdivision. After a hearing, the trial court entered an order granting the motion for class certification. It found that all of the Plaintiffs' claims arose from the same practice and course of conduct -- the City's creation of special assessment districts and filing of disputed liens. It certified the class to include all property owners whose affected properties were being or had been subject to the disputed liens. The parties filed cross-motions for summary judgment and "Joint Stipulations of Fact" to aid the court in resolving the motions. Based on the undisputed facts, the City moved for summary judgment, claiming that it had properly interpreted and implemented Tennessee Code Annotated section 7-33-301, et seq. The Plaintiffs filed a motion for partial summary judgment, addressing the issues of statutory interpretation but excluding the issue of damages. They sought an order declaring that the City's "lien program related to its special assessment districts" violated Tennessee Code Annotated section 7-33-314. They defined the issue as whether the City violated the statute by filing liens against the properties in the full amount of "initial improvement assessments instead of the annual amounts due and owing each year." After a hearing on the cross-motions, the trial court entered an order granting partial summary judgment to the Plaintiffs and denying the City's motion for summary judgment. It concluded that the City violated section 7-33-314 by filing notices of liens in the full amount of the assessments assigned to each benefitted property rather than the amount of annual assessments. The trial court declared the notices of liens null and void and directed the City to file amended notices of liens. The next phase of the proceeding focused on damages. The owners of eight properties filed claims for monetary damages allegedly caused by the City's error when the property owners had attempted to refinance or sell their properties. The trial court concluded that a hearing on damages was not necessary and denied all claims, finding that none of the claimants suffered an injury as a result of the City's actions. The Plaintiffs subsequently filed a motion for attorney fees in the amount of $250,572.50. They argued that such an award was appropriate because they had conferred a substantial benefit on the members of an ascertainable class within the meaning of Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). The trial court also denied the Plaintiffs' request for an award of the attorney fees they had incurred. The Plaintiffs appeal, asserting that the trial court erred in denying their claims for damages and attorney fees. The City of Franklin argues that the trial court erred in granting partial summary judgment in favor of the Plaintiffs on the substantive issue regarding the validity of the notices of liens. Discussion I. Issues Presented The Plaintiffs present the following issues, which the Appellate Court has slightly reworded, for review on appeal: 1. Did the trial court err in denying the claims for monetary damages where the Plaintiffs provided proof of damages and would not have incurred damages but for the City's illegal liens; and 2. Did the trial court err in denying the claim for attorney fees where the litigation conferred a substantial benefit on an ascertainable class and the award was not barred by sovereign immunity. In its posture as appellee, the City presents the following additional issue, also restated: 1. Did the trial court err in determining that the City's notices of liens were illegal where the City filed the notices in the amount of improvement assessments for each Plaintiff's proportionate share of the cost of the sewer improvement and Tennessee law provides that the City's improvement assessment constitutes a lien on each property. For the following reasons, the decision of the chancery court is affirmed in part, reversed in part, vacated in part, and remanded for further proceedings. II. Partial Summary Judgment First, the Court of Appeals affirms the decision of the chancery court entering partial summary judgment in favor of the Plaintiffs, finding that the City's notices of liens in the full amount of the total assessments were illegal and ultra vires. It finds that the annual improvement assessments are due at the same time as municipal property taxes. It finds no support for the City's position that an "initial assessment" and indebtedness is fully due and owing as soon as the resolution or ordinance is passed. The benefited properties are not subject to liens in the full amount claimed by the City. A lien created by statute is limited in operation and effect by its terms and can be enforced only in the circumstances provided for in the legislation. Next, the Court of Appeals holds that the trial court reviewed the parties' briefs and concluded that a damages hearing was unnecessary, finding that "none of the 8 claimants had suffered an injury as a result of the City's filing notices of liens for an improper amount." The Appellate Court has determined that this conclusion was erroneous. From its review of the record, though, it is not clear to the Court whether the parties and the trial court would have proceeded with a full evidentiary hearing had the trial court not announced that "a damages hearing was unnecessary." As such, it deems it appropriate to remand the damage claims to the trial court for further consideration to determine whether the claimed damages were otherwise properly recoverable. The trial court may decide the claims on the written materials submitted, or it may hold an evidentiary hearing, in its discretion. The Court of Appeals simply holds that the trial court erred in dismissing all of the claims on the basis that "none of the 8 claimants suffered an injury as a result of the City's actions." III. Attorney Fees The remaining issue raised by the Plaintiffs was whether the trial court erred in denying their request for attorney fees. In light of the Court of Appeals' conclusion that all of the claims for damages must be remanded for further consideration, it deems it premature to consider any issue regarding an attorney fee award at this juncture. It, therefore, vacates the trial court's holding on attorney fees and direct the trial court to reconsider the issue as part of the proceedings on remand. Conclusion For these reasons, the Court of Appeals affirmed in part, reversed in part, and vacated in part the decision of the chancery court, and remanded for further proceedings. Costs of the appeal are taxed to the appellee, City of Franklin, for which execution may issue if necessary. A full-text copy of the Court's May 24, 2021 Opinion is available at https://tinyurl.com/yp4zx4ep from Leagle.com. J. Gerard Stranch, IV -- gerards@bsjfirm.com -- and Benjamin A. Gastel -- beng@bsjfirm.com -- in Nashville, Tennessee, for the Appellants, Jennifer Clarke and Samuel Clarke. Shauna R. Billingsley, City Attorney, and William E. Squires, Assistant City Attorney, in Franklin, Tennessee, for the Appellee, City of Franklin, Tennessee. GAIN CAPITAL: Zhang Suit Tossed Under Forum Non Conveniens Doctrine ------------------------------------------------------------------- In the case, JUN ZHANG, a.k.a., JUNE ZHANG, individually and on behalf of all others similarly situated, Plaintiff v. GAIN CAPITAL HOLDINGS, INC., a Delaware corporation, Defendant, Case No. 3:20-cv-09426 (BRM) (TJB) (D.N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey issued an Opinion: a. granting Defendant Gain Capital Holdings ("GCH")'s Motion to Dismiss pursuant to the doctrine of forum non conveniens; and b. denying as moot GCH's Motion to Dismiss Plaintiff Jun Zhang's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). GCH is a global provider of trading services and solutions with customers located in over 180 countries. Its shares are traded on the New York Stock Exchange and it has offices in New York, Illinois, Ohio, the United Kingdom, Japan, Australia, China, U.A.E., Poland, and Singapore. GCH uses a global digital trading platform that can be accessed through the internet and mobile devices. Its retail customers are composed of "self-directed traders" who execute trades on their own behalf. In 2018, these self-directed traders represented approximately 99.7% of GCH's retail trading volume. Trades are executed through GCH's GAIN Trader proprietary trading platform. GCH has several operating subsidies, including a Cayman Islands company named Gain Global Market, Inc. ("GGMI"). The Plaintiff is a self-directed trader who has been using GCH's GAIN Trader platform to trade derivatives of commodity futures since 2017. When the Plaintiff opened his account through GCH's website, forex.com, he had to fill in his personal information and set up a username and password. The Plaintiff does not remember signing any contract for opening the account, and the entire process took him only a few minutes. To his understanding, GCH's platform allows its users to buy and sell futures derivatives offered by GCH -- it is not an agent which buys and sells futures on behalf of the users. The Plaintiff understands the deposit account he opened with GCH is a trust account that entrusts GCH to manage and to debit or credit Plaintiff according to his trading activities on the platform. After opening his account, he received an email from cn.support@forex.com informing him he had completed his account opening but needed to deposit funds into his account before he started trading. The owner of the New York bank account to which the Trust Account money was wired was shown to have a physical address at the same address. Since activating his account and depositing the funds necessary to begin trading, the Plaintiff made innumerable deposits and withdrawals from the Trust Account, all under GCH's management. One of the Plaintiff's major trading activities using GCH's platform concerns a futures contract named "US_OIL" with a Chinese name literally meaning U.S. Crude Oil. US_OIL trades crude oil futures through commodity future exchanges in the United States, which are primarily exchanges controlled by the Chicago Mercantile Exchange Group. The US_OIL monthly contracts closely track the monthly futures contracts of the U.S. crude oil benchmark -- West Texas Intermediate ("WTI") -- which are administered by the CME Group. On the Plaintiff's information and belief, the US_OIL contracts are crude oil futures derivative products that GCH offered through its trading platform, forex.com, at all relevant times to non-U.S. residents including Chinese residents like him. For the US_OIL trading, GCH provides its customers with real time quotes from the CME Group for WTI and other oil-related futures in the United States, and general research and guidance for the U.S. oil market. By allowing the Plaintiff and the other customers to buy and sell US_OIL as a derivative of the WTI futures of the CME Group, the Plaintiff alleges GCH has been acting as his investment dealer and advisor for U.S.-based investments. The Plaintiff alleges the action arose from the negative pricing of WTI futures. On April 3, 2020, the CME Group announced to its CME Globex and Market Data customers that effective April 5, 2020, futures and options including crude oil will be flagged as eligible to trade at negative prices. Historically, negative pricing for commodity trading has existed for many years, but the CME Group did not allow it until April 5, 2020. On April 8, 2020, CME Group published an advisory notice which stated, in relevant part, that if major energy prices continued to fall towards zero in the following months, CME Clearing had a tested plan to support the possibility of negative options and enable markets to continue to function normally. The notice specifically mentioned WTI Crude Oil futures, RBOB Gasoline futures, and Heating Oil futures for possible negative pricing. On April 20, 2020, the day the WTI May 2020 contracts were set to expire, their prices dropped into the negatives, reaching -$40.32 per barrel at its lowest point, and closing at -$37.63 per barrel. However, GCH's US_OIL contract pricing remained in the positives, with the lowest price shown as $0.01 per barrel and the closing price at $0.05 per barrel. On the same day, approximately 22 minutes before the closing of U.S. crude oil trading, GCH's US_OIL trading halted, thus dissociating the derivative from its underlying WTI future contracts. On April 21, 2020, GCH's platform showed the settlement pricing of US_OIL for the May contracts as $0.01. On April 23, 2020, the Plaintiff received an email from GCH announcing that his US_OIL account had been assessed an "adjustment" of -$143,032.00 due to the negative pricing of WTI's May 2020 contract and that GCH had withdrawn that adjustment amount from his Trust Account. After inquiring about the adjustment with GCH's customer service, the Plaintiff was told the adjustment was a decision made by GCH's trading platform management. The Plaintiff complained several times to GCH and as part of this complaint process, GCH sent the Plaintiff and its other customers a contract which he allegedly executed by opening an account on GCH's forex.com platform. According to the Plaintiff, this was the first time Plaintiff had ever heard of such a contract. He then complained to the National Futures Association ("NFA"), the regulatory group for the futures trading industry based in Chicago and New York, which stated that the US_OIL trading on GCH's platform was conducted by GCH's subsidiary, GGMI. GCH is a member of the NFA, but GGMI is not. The Plaintiff alleges this was the first time he was made aware of GGMI being the market maker for US_OIL and of "the artificial distinction between GCH and GGMI." On July 24, 2020, the Plaintiff filed a three-count putative class action Complaint alleging breach of fiduciary duty (Count I); negligence (Count II); and consumer fraud under N.J. Stat. Ann. Sections 56:8-1, et seq. (Count III). On Oct. 2, 2020, GCH filed two Motions: (1) a Motion to Dismiss pursuant to the doctrine of forum non conveniens; and (2) a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On Nov. 6, 2020, the Plaintiff opposed both Motions and on Nov. 24, 2020, GCH replied to both oppositions Analysis GCH asserts when the Plaintiff opened his trading accounts on forex.com, he assented to the Customer Agreement, which contains a forum selection clause. This forum selection clause provides the courts of the Cayman Islands will have "exclusive jurisdiction" over any claim arising under the Customer Agreement. GCH makes two arguments in relation to the forum selection clause: (1) the forum selection clause is enforceable and (2) the forum selection clause applies to the action. Because of both these arguments, GCH submits the doctrine of forum non conveniens justifies dismissal of the action. A. The Forum Selection Clause's Enforceability GCH argues the forum selection clause applies to the action because the Plaintiff had reasonable notice of the clause and affirmatively assented to the Customer Agreement containing the clause. It also argues the Plaintiff cannot demonstrate the forum selection clause is unreasonable. The Plaintiff argues the Customer Agreement did not provide adequate notice of the clause because it does not qualify as enforceable clickwrap. Judge Martinotti disagrees with the Plaintiff. He holds that the Plaintiff testified he remembered seeing the statement with the Customer Agreement hyperlinks and checking the box indicating his assent to the terms of the Customer Agreement. Because the Plaintiff affirmatively checked a box confirming acknowledgment of the Customer Agreement and because the Customer Agreement was conspicuously presented twice in blue hyperlinked text against a background of black text, the application is an enforceable clickwrap agreement. Because the Judge found the format and layout of the application provided the Plaintiff with reasonable notice of the Customer Agreement, he holds that the Plaintiff's argument that GCH's interface "buried" the terms of the Customer Agreement is unavailing. To the extent the Plaintiff argues he "did not pay any attention" to the Customer Agreement, the Court is unpersuaded, as a failure to read the terms and conditions, and specifically, the forum selection clause, does not render the forum selection clause invalid or diminish its force and effect. Therefore, the forum selection clause is not procedurally unconscionable. Regarding substantive unconscionability, the Judge finds that the "About Us" page the Plaintiff relies upon -- even the one provided by his own translator -- lists GCH as subject to the regulatory authority of the Cayman Islands Monetary Authority. The fact that the Cayman Islands is listed as one of GCH's regulators forecloses the Plaintiff's argument that the forum selection clause was so unexpected as to render it substantively unconscionable. B. The Application of the Forum Selection Clause GCH argues the forum selection at issue applies to the action because it covers all of the Plaintiff's claims. The Plaintiff argues nearly all of the loss at issue in this case arises out of his first account opened with GCH in 2017 ("Account I"), which is not subject to the forum selection clause. Additionally, the Plaintiff contends GCH has no standing to evoke the forum selection clause under the second account Plaintiff opened in 2019 ("Account II"). Judge Martinotti agrees with GCH. First, courts routinely find forum selection clauses properly apply to claims arising out of contractual relationships, like the Plaintiff's tort and contract claims. Therefore, the forum selection clause applies to the Plaintiff's claims. Second, the Plaintiff attempts to avoid application of the forum selection clause by arguing the clause cannot apply to Account I, the Judge holds that the account that makes up "95% of loss at issue in the case." By manifesting assent to the Customer Agreement when opening Account II in 2019, the terms within the Customer Agreement applied to all accounts the Plaintiff had with GCH at the time, including Account I. Lastly, due to the Customer Agreement's explicit terms, it is foreseeable that GCH, as GGMI's corporate parent, could enforce the forum selection clause against the Plaintiff. Accordingly, the forum selection clause applies to both Account I and II. C. Forum Non Conveniens Analysis Because the forum-selection clause was not unreasonable and applies to the Plaintiff's claims, Judge Martinotti must analyze the Atlantic Marine factors. First, he opines that GCH is amenable to process in the Cayman Islands. Additionally, while the Plaintiff repeatedly disputes his claims' connection to the Cayman Islands, he does not argue his claims would not be cognizable in Cayman courts. Because the Plaintiff has not demonstrated he would be "deprived of any remedy" if required to litigate his claims in the Cayman Islands, the Judge finds the Cayman Islands is an adequate alternative forum. Second, since Cayman law applies to the claims in the action, having a trial of a diversity case in a forum that is at home with the law that must govern also favors the Cayman Islands in the diversity action. Therefore, the Plaintiff has not carried his burden under either prong of the forum non conveniens inquiry. Because the Plaintiff has not carried his burden, the Judge dismisses the action for forum non conveniens and need not reach the issue of whether the Complaint should be dismissed for failure to state a claim under Rule 12(b)(6). Conclusion For the reasons he set forth, Judge Martinotti granted GCH's Motion to Dismiss pursuant to the doctrine of forum non conveniens and denied as moot its Motion to Dismiss for failure to state a claim. A full-text copy of the Court's May 25, 2021 Opinion is available at https://tinyurl.com/m8d632dk from Leagle.com. GENERAL MOTORS: Court Certifies Idaho Class in Siqueiros Suit ------------------------------------------------------------- In the case, RAUL SIQUEIROS, et al., Plaintiffs v. GENERAL MOTORS LLC, Defendant (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California issued an order: (1) granting in part and denying in part GM's second motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56; (2) granting in part and denying in part the Plaintiffs' second motion for class certification pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3); and (3) granting the Plaintiffs' motion for determination of Manuel Fernandez's adequacy to serve as California class representative pursuant to Federal Rule of Civil Procedure 23(a)(4). The Plaintiffs allege that Defendant GM knowingly manufactured and sold a car engine with inherent defects that caused excessive oil consumption and engine damage. The alleged defects affect 2011 to 2014 model-year GM vehicles. The Plaintiffs allege that GM's Gen IV Vortec 5300 LC9 engine suffers from an "inherent" oil-consumption defect. The "primary cause" of the alleged defect is the piston rings installed by GM. These piston rings do not maintain sufficient tension to keep oil in the crankcase, and the oil migration that occurs as a result allows oil to "burn or accumulate as carbon buildup on the combustion chamber's surfaces." The Plaintiffs allege that the oil-consumption defect causes safety problems in three ways: (1) oil consumption can lead to a lack of adequate lubrication in the engine and dropping oil pressure levels in vehicles; (2) the presence of excess oil in the combustion chamber can cause spark plug fouling, which can cause engine problems; and (3) when drivers experience these problems while driving, they may be forced to pull over and stop alongside a road or highway (or they may be stranded in such a location with an inoperable vehicle), which places them in danger. The Plaintiffs assert claims under various state consumer-protection and fraud statutes on behalf of a nationwide class as well as various statewide classes. They filed their class action complaint on Dec. 19, 2016. They have since amended their pleadings several times; the operative complaint is the seventh amended complaint. On April 23, 2020, the Court certified the following classes in the three remaining bellwether states: a. California Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of California. The Court certifies the claims of the California Class for violation of the Song-Beverly Consumer Warranty Act for breach of implied warranty, Cal. Civ. Code Section 1790 et seq. The Court appoints Raul Siqueiros as the class representatives for the California Class. b. North Carolina Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of North Carolina. The Court certifies the claims of the North Carolina Class for breach of implied warranty of merchantability. It appoints William Davis, Jr. as the class representative for the North Carolina Class. c. Texas Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Texas. The Court certifies the claims of the Texas Class for breach of implied warranty of merchantability. It appoints Rudy Sanchez as the class representative for the Texas Class. On Sept. 14, 2020, the Court granted the Plaintiff's motion for permissive intervention, substituting Plaintiffs Manuel Fernandez and Robert May for Mr. Siqueiros as California class representatives. On Nov. 6, 2020, the parties stipulated to amend the California class as follows: All current owners or lessees of a Class Vehicle that was who purchased or leased the vehicle in new condition in the State of California. The Court certifies the claims of the California Class for violation of the Song-Beverly Consumer Warranty Act for breach of implied warranty, Cal. Civ. Code Section 1790, et seq. That same day, the Plaintiffs filed their seventh amended complaint, the operative complaint, as well as their second motion to certify classes in Arkansas, Idaho, Pennsylvania, and Tennessee, see Second Class Cert. They also filed a motion for determination of Mr. Fernandez's adequacy to serve as California class representative. On Dec. 2, 2020, GM filed its second motion for partial summary judgment. Discussion I. Partial Summary Judgment Analysis A. Consumer Fraud Claims 1. Arkansas: Arkansas Deceptive Trade Practices Act (ADTPA) (Count 8) and Fraudulent Omission (Count 11) GM argues that the ADTPA and common law fraud claims in Arkansas require "actual injury" beyond diminution in value. Indeed, in Wallis v. Ford Motor Co., the Arkansas Supreme Court squarely held that "common law fraud claims not resulting in injury are not actionable" and that a plaintiff "does not state a cognizable cause of action under ADTPA where the only injury complained of is a diminution in value of the vehicle." Under this bright-line rule, Arkansas Plaintiff Larry Wayne Goodwin's ADTPA and fraudulent omission claims fail as a matter of law because he does not allege any injury except diminution in value of his vehicle. The Plaintiffs attempt to distinguish Wallis by pointing out that Mr. Wallis did not allege that his vehicle malfunctioned in any way, whereas Mr. Goodwin is alleging that his vehicle suffers from the oil-consumption defect that the Court already determined to be a significant safety defect. They also argue that GM's unique knowledge of the oil-consumption defect gives rise to a duty to disclose under Arkansas law. Judge Chen holds that although the duty of disclosure arises where one person is in position to have and to exercise influence over another who reposes confidence in him whether a fiduciary relationship in the strict sense of the term exists between them or not, there was no special relationship -- fiduciary, contractual, or confidential -- between Mr. Goodwin and GM. Accordingly, the Judge grants GM's motion for summary judgment as to Counts 8 and 11 because fraud claims in Arkansas require allegations of injury beyond the mere diminution in value of the allegedly defective product and Mr. Goodwin was not in a special relationship with GM that would require GM to disclose its knowledge of the alleged oil-consumption defect. 2. Idaho: Idaho Consumer Protection Act (ICPA) (Count 13) and Fraudulent Omission (Count 16) GM challenges Idaho Plaintiff Gabriel Del Valle's standing to bring an ICPA claim because he purchased his used vehicle from an independent dealership and had no direct contact with GM. It also challenges Mr. Del Valle's fraudulent omission claim by arguing that oil consumption was not material to his decision to purchase his vehicle. Taking the testimony in the light most favorable to Mr. Del Valle, Judge Chen finds that there is at least a genuine issue of material fact as to whether the oil-consumption defect was material to Mr. Del Valle's decision to purchase the Chevrolet Avalanche. Accordingly, he denies GM's motion for summary judgment as to Counts 13 and 16 because Mr. Del Valle had a contract with the dealer that resulted in the purchase of his vehicle and there is a question of material fact as to whether the oil-consumption defect was material to his decision to purchase the vehicle. 3. Massachusetts: Massachusetts Regulation of Business Practices for Consumer Protection Act (RBPCPA) (Count 18) and Fraudulent Omission (Count 21) According to GM, Massachusetts Plaintiff Scott Smith's claim under the RBPCPA fails as a matter of law because he did not serve GM with the required pre-suit demand letter. It also contends that Mr. Smith's fraudulent omission claim fails because GM had no duty to disclose the oil-consumption defect. Judge Chen holds that the Court already concluded that GM was aware of the oil-consumption problem with GenIV engines as early as the end of 2008 or 2009, and that there is at least a genuine issue of material fact as to whether GM actively concealed information about the alleged defect to induce the Plaintiffs into purchasing their vehicles. The fact that GM and Mr. Smith are not in a fiduciary relationship is therefore not fatal to Mr. Smith's fraudulent omission claim under Massachusetts law. Accordingly, the Judge GM's motion for summary judgment as to Counts 18 and 21 because Mr. Smith properly notified GM of his suit and GM had a duty to disclose the oil-consumption defect. 4. Pennsylvania: Unfair Trade Practices and Consumer Protection Law (UTPCPL) (Count 28) and Fraudulent Omission (Count 31) GM contends that it had no duty to disclose the alleged oil-consumption defect because Pennsylvania Plaintiff John Graziano admits that he did not suffer any physical injury or harm as a result of the defect. The Plaintiffs respond that, under Pennsylvania law, "a duty to speak exists, in the context of a business transaction with an ordinary non-business consumer, when the seller has superior knowledge of a material fact that is unavailable to the consumer." Judge Chen holds that there is no evidence that the oil-consumption defect in the Class Vehicles is "likely to cause significant bodily harm," even though there is a possibility -- albeit quite remote -- that "when drivers experience this defect while driving, they may be forced to pull over and stop alongside a road or highway (or they may be stranded in such a location with an inoperable vehicle), which places a person in danger." Put a different way, the defect in Zwiercan II and III is much more likely to cause significant bodily harm than the oil-consumption defect at issue. Accordingly, the Judge grants GM's motion for summary judgment as to Counts 28 and 31 because GM had no duty to disclose the oil-consumption defect. 5. Tennessee: Tennessee Consumer Protection Act (TCPA) (Count 33) and Fraudulent Omission (Count 36) GM argues that the duty to disclose under Tennessee law is limited to fiduciary relationships. Therefore, because Tennessee Plaintiff Joshua Byrge does not allege that GM owed him a fiduciary duty, GM argues his TCPA and fraudulent omission claims fail as a matter of law under the rule in EPAC Techs., Inc. v. HarperCollins Christian Publ'g, Inc., 398 F.Supp.3d 258, 270 (M.D. Tenn. 2019) (quoting Walker v. First State Bank, 849 S.W.2d 337, 241 (Tenn. Ct. App. 1992)). The Plaintiffs cite to Odom v. Oliver to respond that, even if GM did not have a fiduciary relationship with Mr. Byrge, "contracting parties have a duty to disclose material facts affecting the essence of a contract's subject matter" in Tennessee. They also argue that Mr. Byrge's TCPA and fraudulent concealment claims survive, even if GM had no duty to disclose the oil-consumption defect, because Tennessee courts also recognize an alternative actionable type of concealment: a "trick or contrivance." Judge Chen holds that the Plaintiffs submitted evidence that GM issued Technical Service Bulletins (TSBs) in August 2010 instructing dealers to tell customers that a piston cleaning would remedy the oil-consumption defect, even though GM knew that cleaning was ineffective as early as February 2010. These TSBs arguably constitute a "trick or contrivance" under Odom and Continental Land, because they falsely represented to customers that the oil-consumption defect was easily fixable. Weighing evidence of the TSBs in the light most favorable to Mr. Byrge, and drawing every inference in his favor, the Judge concludes there is, at the very least, a genuine issue of material fact as to whether Mr. Byrge's "damages were caused by his reasonable reliance on" GM's suggestion that piston cleaning remedied the oil-consumption defect. Summary judgment on Mr. Byrge's TCPA and fraudulent omission claims is therefore inappropriate. Accordingly, the Judge denies GM's motion for summary judgment as to Counts 33 and 36 because, even though GM was not in a fiduciary relationship with Mr. Byrge, there is a question of material fact as to whether GM engaged in a trick or contrivance to conceal the oil-consumption defect. B. Economic Loss Doctrine 1. California: Fraudulent Omission (Count 5) The Court granted summary judgment for GM on the fraudulent omission claims of the then-California class representatives. The Plaintiffs concede that Mr. Fernandez, the new California class representative, likewise does not allege personal injury or property damage to avoid the economic loss doctrine. Accordingly, Judge Chen GM's motion for summary judgment as to Count 5 because Mr. Fernandez does not allege personal injury or damage to property. 2. Tennessee: Fraudulent Omission (Count 36) It is undisputed that the Mr. Byrge does not claim personal injury or property damage. Therefore, GM also contends that the economic loss doctrine bars Mr. Byrge's fraudulent omission claim. GM only cites to Milner v. Windward Petroleum Inc., where the Western District of Tennessee held that "because Windward's actions did not result in personal injury or property damage, Milner and Star Service can adequately be compensated for their economic losses through contract law." There are two reasons Judge Chen declines to apply Milner. First, he says the analysis in Milner is unpersuasive because the court did not rely on any binding Tennessee law to conclude that the economic law doctrine applies to fraud claims. Second, the fraud at issue in Milner had to do with the performance of the contract -- the plaintiffs alleged defendant delivered a mixture of several motor oils even though the contract required defendant to deliver pure Pennzoil motor oil. In the case, by contrast, the allegation is that GM did not mention to Mr. Byrge the existence of the oil-consumption defect before he purchased the vehicle, fraudulently inducing him into purchasing his vehicle. Accordingly, the Judge denies GM's motion for summary judgment as to Count 36 because GM has not established as a matter of law that the economic loss doctrine applies to fraudulent omission claims in Tennessee. C. Unjust Enrichment Claims Barred By Express Contract: California: Unjust Enrichment (Count 6); Arkansas: Unjust Enrichment (Count 12); Idaho: Unjust Enrichment (Count 17); Massachusetts: Unjust Enrichment (Count 22); Pennsylvania: Unjust Enrichment (Count 32); Tennessee: Unjust Enrichment (Count 37) The Court already granted GM summary judgment on the Plaintiffs' unjust enrichment claims in the bellwether states because numerous cases indicate that the mere existence of a contract that defines the parties' rights bars a claim for unjust enrichment. The Plaintiffs argue that the same is not true for their unjust enrichment claims under Arkansas, Idaho, Massachusetts, and Tennessee law. The Plaintiffs' arguments are not persuasive, Judge Chen finds. He holds that Mr. Del Valle's and Mr. Smith's unjust enrichment claims are not barred by the existence of their contract with GM because that contract does not cover the oil-consumption defect, which is the basis of their unjust enrichment claim. Even if Mr. Del Valle's and Mr. Smith's unjust enrichments claims are not barred by their contract with GM, however, they are barred because Plaintiffs have adequate legal remedies in their consumer protection, fraudulent omission, and warranty claims. The Plaintiffs have not presented persuasive authority to the contrary. Accordingly, the Judge grants GM's motion for summary judgment as to Counts 6, 12, 17, 22, 32, and 37 because unjust enrichment claims are barred by either the parties' express contract or the Plaintiffs' ability to pursue other adequate legal remedies. D. Implied Warranty Claims 1. No Privity GM first challenges the validity of the Idaho and Tennessee Plaintiffs' implied warranty claims on the grounds that they lack privity with GM. The parties do not dispute that Messrs. D el Valle and Byrge are not in privity with GM because they purchased their vehicles from dealerships that were not associated with GM. The Plaintiffs instead argue that, as a matter of law, implied warranty claims in Idaho and Tennessee do not require plaintiffs to be in privity with the defendant. Judge Chen holds that grants GM's motion for summary judgment as to Count 15 because Mr. Del Valle is not in privity with GM. Mr. Del Valle's implied warranty claim fails as a matter of law because he is not in privity with GM, and the only prejudice he would suffer if the court enforces this privity requirement is the inability to recover for the diminished value of his vehicle. Judge Chen also grants GM's motion for summary judgment as to Count 35 because Mr. Byrge is not in privity with GM. Under section 29-34-104 and the common law that precedes it, Mr. Byrge's lack of privity with GM is fatal to his implied warranty claim because he is not alleging property damage or personal injury as a result of the oil-consumption defect. 2. No Pre-Suit Notice GM also contends that Mr. Graziano's failure to provide GM pre-suit notice is fatal to his implied warranty claims. The Plaintiffs argue that Mr. Graziano notified GM of his implied warranty claims through filing of the suit. In Pennsylvania the filing of a complaint has been held to satisfy the notice requirement for a breach of warranty claim. GM does not cite any Pennsylvania appellate court overruling Precision Towers. Mr. Graziano's filing of the complaint is therefore sufficient under Pennsylvania law to notify GM of his implied warranty claim. Accordingly, Judge Chen denies GM's motion for summary judgment as to Count 30 because GM has not established as a matter of law that Mr. Graziano did not properly notify GM of his implied warranty claims. 3. No Evidence of Unmerchantability GM finally challenges the validity of the Plaintiffs claims for breach of the implied warranty of merchantability on the grounds that there is no evidence that Plaintiffs' vehicles are unmerchantable. As to California's Implied Warranty (Count 4), GM recycles its argument that Mr. Fernandez's implied warranty claim fails because he drove his car for years and tens of thousands of miles before experiencing any problems related to the oil-consumption defect. The Court squarely rejected this argument in its first summary judgment order because "safety-related defects which may be slow to emerge may nonetheless furnish a basis for a breach of implied warranty claim" under California law. GM does not offer any new evidence or cite to any legal authority to disturb this prior ruling. Thus, the fact that Mr. Fernandez did not experience any issue related to excessive oil consumption until five years after purchasing his vehicle does not foreclose his implied warranty claim as a matter of law. Accordingly, the Judge denies GM's motion for summary judgment as to Count 4. With respect to Massachusetts' Implied Warranty (Count 20), GM argues that Mr. Smith's breach of implied warranty claim fails because he drove his car for more than six years and 110,000 miles without experiencing any problems related to the oil-consumption defect. Viewing all of the expert evidence in the light most favorable to Mr. Smith, and drawing all justifiable inferences in his favor, the Judge concludes that GM has failed to establish as a matter of law that Mr. Smith's vehicle was not defective at the time of sale. Accordingly, he denies GM's motion for summary judgment as to Count 20 because there is a genuine issue of material fact as to whether Mr. Smith's vehicle was defective at the time of sale. Last, as to Pennsylvania's Implied Warranty (Count 30), GM relies on Hornberger v. Gen. Motors Corp. for the proposition that, under Pennsylvania law, "where a car can provide safe, reliable transportation, it is generally considered merchantable." According to GM, Mr. Graziano's vehicle was merchantable because he drove it for 6,000 miles before noticing that the engine was overconsuming oil, and because he does not allege that his engine ever stalled or failed. The Judge holds that Mr. Graziano also alleges that the oil-consumption defect existed at the time the vehicle was manufactured and that it caused his vehicle to suffer from sluggish performance due to oil-consumption-induced spark plug fouling. Therefore, summary judgment on his implied warranty claim is inappropriate. Accordingly, the Judge denies GM's motion for summary judgment as to Count 30 because there is a genuine issue of material fact as to whether Mr. Graziano's vehicle was merchantable. E. Statute of Limitations: Pennsylvania: Implied Warranty (Count 30)6 The statute of limitations for an implied warranty claim in Pennsylvania is four years. GM contends that Mr. Graziano's implied warranty claim is time barred, even though he first noticed that his Silverado was over-consuming oil in 2012, because he has not alleged "an independent affirmative act of concealment" which caused him "to relax his vigilance or deviate from his right of inquiry through fraud or concealment." The Plaintiffs respond that Mr. Graziano's implied warranty claim is timely for two reasons. First, they contend that Mr. Graziano did not discover the excessive oil consumption caused by the alleged defect until approximately 2016, shortly before he joined the action. Second, they also argue that GM's fraudulent concealment tolls the limitations period for Mr. Graziano's claims. Judge Chen denies GM's motion for summary judgment as to Count 30 because that claim is timely. He finds that Mr. Graziano's claims are timely under Pennsylvania's discovery rule because, despite reasonable diligence, he was unable to discover the alleged oil consumption was caused by a design defect until 2016, shortly before he joined the action. Also, the statute of limitations for Mr. Graziano's claims is tolled until he discovered the oil-consumption defect in 2016. F. Individual MMWA Claims (1) Because the Plaintiffs' individual MMWA claims rely on their underlying state-law warranty claims, the parties' MMWA arguments focus exclusively on whether the Court should dispose of those state-law warranty claims. In other words, the MMWA claims survive or fail with the Court's decisions regarding the corresponding implied warranty claims, discussed. Accordingly, Judge Chen grants summary judgment to GM on the individual MMWA claims of the Idaho and Tennessee Plaintiffs; and denies summary judgment to GM on the individual MMWA claims of the California, Massachusetts, and Pennsylvania Plaintiffs. Conclusion as to Summary Judgment In summary, Judge Chen grants summary judgment to GM on all but the following nine state-law claims: California: (1) implied warranty claim (Count 4); Idaho: (2) ICPA claim (Count 13), and (3) fraudulent omission claim (Count 16); Massachusetts: (4) RBPCPA claim (Count 18), (5) implied warranty claim (Count 20), and (6) fraudulent omission claim (Count 21); Pennsylvania: (7) implied warranty claim (Count 30); and Tennessee: (8) TCPA claim (Count 33), and (9) fraudulent omission claim (Count 36). The Judge also summary judgment to GM on the individual MMWA claims of the Idaho and Tennessee Plaintiffs; and denies summary judgment to GM on the individual MMWA claims of the California, Massachusetts, and Pennsylvania Plaintiffs. II. Motion for Class Certification The Plaintiffs seek to certify the following classes as part of Phase II of their class certification process: 1. Arkansas Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Arkansas. The Arkansas Class seeks class certification of claims for: (a) violation of the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. Sections 4-88-101, et seq; (b) breach of implied warranty of merchantability; (c) fraudulent omission; and (d) unjust enrichment. The Plaintiffs move for the appointment of Larry Goodwin as the class representative for the Arkansas Class. 2. Idaho Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Idaho. The Idaho Class seeks class certification of claims for: (a) violation of the Idaho Consumer Protection Act, Idaho Code Ann. Sections 48-601 et seq.; (b) breach of implied of merchantability; (c) fraudulent omission; and (d) unjust enrichment. The Plaintiffs move for the appointment of Gabriel Del Valle as the class representative for the Idaho Class. 3. Pennsylvania Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Pennsylvania. The Pennsylvania Class seeks class certification of claims for: (a) violation of the Pennsylvania Unfair Trade Practices & Consumer Protection Law, 73 Pa. Cons. Stat. Ann. Section 201-1, et seq.; (b) breach of implied warranty of merchantability; (c) fraudulent omission; and (d) unjust enrichment. The Plaintiffs move for the appointment of John Graziano as the class representative for the Pennsylvania Class. 4. Tennessee Class: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Tennessee. The Tennessee Class seeks class certification of claims for: (a) breach of implied warranty of merchantability; (b) fraudulent omission; and (c) unjust enrichment. They move for the appointment of Joshua Byrge as the class representative for the Tennessee Class. However, the Court granted summary judgment to GM on all but four of the claims listed in these proposed classes, including all the claims in the proposed Arkansas Class. Therefore, Judge Chen only considers whether it is appropriate to certify a class as to the remaining four claims that survive summary judgment. The Judge concludes that only Mr. Del Valle's ICPA claim is sufficiently susceptible to common answers to merit class certification. He therefore certifies the Idaho Class defined as "All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Idaho." The Judge certifies the claims of the Idaho Class for violation of the Idaho Consumer Protection Act, Idaho Code Ann. Sections 48-601-48-619. He appoints Gabriel Del Valle as the class representative for the Idaho Class. III. Motion for Determination of Mr. Fernandez's Adequacy GM makes two unavailing arguments as to why Mr. Fernandez is not an adequate class member. First, GM recycles its argument that Mr. Fernandez's vehicle is merchantable because he has not experienced any engine trouble or other safety issue, and because he drove the vehicle for 78,000 miles before experiencing the effects of the oil-consumption defect. Judge Chen again rejects this argument for the reasons stated, namely, because "safety-related defects which may be slow to emerge may nonetheless furnish a basis for a breach of implied warranty claim" under California law. Second, and strangely, GM argues that Mr. Fernandez cannot adequately establish standing for the putative California class members whose claims are barred by the four-year statute of limitations because his claims are timely. Again, this argument is foreclosed by Ramirez and longstanding Ninth Circuit precedent that "only the representative plaintiff need allege standing at the motion to dismiss and class certification stages." Therefore, Mr. Fernandez is adequate precisely because he has standing to sue. Accordingly, the Judge grants the Plaintiffs' motion to determine that Mr. Fernandez is an adequate representative for the California class. Order For the foregoing reasons, Judge Chen grants in part and denies in part GM's motion for partial summary judgment. Judge Chen also grants in part the Plaintiffs' second motion for class certification. Certification is with the following terms: Class Vehicles are 2011-2014 Chevrolet Avalanches; 2011-2014 Chevrolet Silverados; 2011-2014 Chevrolet Suburbans; 2011-2014 Chevrolet Tahoes; 2011-2014 GMC Sierras; 2011-2014 GMC Yukons; and the 2011-2014 GMC Yukon XLs with LC9 engines (whether purchased new or used) and manufactured on or after Feb. 10, 2011 (the date upon which the redesigned rocker cover was incorporated into vehicle production). Any vehicle that has already received adequate piston replacement (i.e. piston replacement in which the new pistons were not merely new versions of the same defective pistons) is excluded from the class. The Idaho Class is defined as follows: All current owners or lessees of a Class Vehicle that was purchased or leased in the State of Idaho. The Court certifies the claims of the Idaho Class for violation of the Idaho Consumer Protection Act, Idaho Code Ann. Sections 48-601-48-619. The Court appoints Gabriel Del Valle as the class representative for the Idaho Class. Finally, the Judge grants the Plaintiffs' motion to determine that Mr. Fernandez is an adequate representative for the California class. The Order disposes of Docket Nos. 287, 289, and 291. A full-text copy of the Court's May 25, 2021 Order is available at https://tinyurl.com/rf24kcvm from Leagle.com. GENIUS BRANDS: Hearing on Bid to Nix Class Suit Set for July 5 -------------------------------------------------------------- Genius Brands International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 18, 2021, for the quarterly period ended March 31, 2021, that the briefing on the motion to dismiss the case, In re Genius Brands International, Inc. Securities Litigation, Master File No. 2:20-cv-07457 DSF (RAOx), by court-ordered schedule, is expected to extend into June 2021, with a hearing currently scheduled for July 5, 2021. On August 18, 2020, the Company and its Chief Executive Officer Andy Heyward were named as defendants in a putative class action lawsuit filed in the U.S. District Court for the Central District of California and styled Salvador Verdin v. Genius Brands International, Inc. and Andy Heyward, Case No. 2:20-cv-07457 DSF (RAOx). The company was later served with a similar lawsuit Sumit Garg v. Genius Brands International, Inc. and Andy Heyward, Case No. 2:20-cv-07764. Both suits allege generally that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making materially false or misleading statement regarding the Company's business and business prospects, artificially inflating the Company's stock price during an alleged class period running from March 11 through July 5, 2020. Plaintiffs seek unspecified damages on behalf of the alleged class of persons who invested in our common stock during the alleged class period. The securities suits have been consolidated into a single proceeding before Judge Dale Fischer in the U.S. District Court for the Central District of California. The proceeding will now be known as, styled In re Genius Brands International, Inc. Securities Litigation, Master File No. 2:20-cv-07457 DSF (RAOx). The Lead Plaintiffs filed an amended complaint in the consolidated actions on February 1, 2021. While asserting the same legal claims and class period, the amended complaint added a new defendant, Chief Financial Officer Robert Denton. On March 17, 2021, the defendants filed a motion to dismiss the amended complaint. Briefing of that motion is, by court-ordered schedule, expected to extend into June 2021, with a hearing currently scheduled for July 5, 2021. Pending resolution of the motion to dismiss, neither discovery nor other substantive proceedings are expected. Genius Brands International, Inc., is a content and brand management company. The Company provides entertaining and enriching content and products with a purpose for toddlers to tweens. The Company produces original content and licenses the rights to that content to a range of partners. The company is based in Beverly Hills California. GGP INC: Court Dismisses Third Amended Stockholder Class Suit ------------------------------------------------------------- In the case, IN RE GGP, INC. STOCKHOLDER LITIGATION, Consolidated C.A. No. 2018-0267-JRS (Del. Ch.), Judge Joseph R. Slights, III, of the Court of Chancery of Delaware granted the Defendants' Motion to Dismiss the Plaintiffs' Consolidated Verified Third Amended Stockholder Class Action Complaint. In the Delaware post-closing shareholder litigation, over the past seven years, a rhythm has emerged in the assertion of claims and defenses as courts have clarified and refined the application of standards for reviewing fiduciary conduct. In hopes of securing more rigorous judicial scrutiny of fiduciary conduct, stockholders invoke the sounds of minority blockholders who act as if they are controlling stockholders, fiduciary decisionmakers who are overcome by allegiances to the controller, and stockholders who are coerced to sell their shares while starved of accurate and complete information. In hopes of securing more judicial deference to fiduciary decision making, the Defendants invoke the sounds of passive minority blockholders and presumptively disinterested, independent (and often exculpated) fiduciaries who have faithfully served fully informed, uncoerced stockholders. When laid down on the same track, the sounds can be perceived as noise. But to the accustomed ear, there is rhythm. On Aug. 28, 2018, GGP entered into a merger with Defendants, Brookfield Property Partners, L.P. ("BPY") and its affiliates. Prior to the Transaction, Brookfield owned 35.3% of GGP's shares. As a result of the Transaction, Brookfield acquired all of the Company's shares it did not own in exchange for a combination of cash and either of two forms of equity, representing 61% and 39% of the consideration, respectively. Structurally, the deal consideration would be paid in two parts: (1) a pre-closing dividend of cash and shares, amounting to about 98.5% of the deal consideration (the "Pre-Closing Dividend"), and (2) $0.312 per share in cash at closing, representing the balance of the deal consideration, capped at $200 million. The Transaction was the culmination of negotiations that began in 2017, when Brookfield extended an offer to GGP's board of directors to acquire the balance of the Company's outstanding shares. As if striking a well-worn key on the piano, Brookfield asked GGP to appoint a committee of independent directors to evaluate the offer and negotiate the Transaction, and clarified that any final deal would "be subject to customary approvals including approval of a majority of the Company's stockholders not affiliated with Brookfield." The Board did not miss a beat and appointed a special committee the next day. At the same time, the three Board members affiliated with Brookfield, each Defendants in the case, formally recused themselves from the process. From Nov. 15, 2017 through March 26, 2018, the date the Merger Agreement was executed, the Special Committee held over 30 meetings to consider Brookfield's various proposals while also evaluating GGP's strategic options. On June 27, 2018, GGP and Brookfield jointly filed a Proxy soliciting a "yes" vote on the Transaction from GGP's stockholders unaffiliated with Brookfield. Stockholders resoundingly (by vote of 94% of stockholders unaffiliated with Brookfield) approved. With the benefit of books and records obtained in an action brought under 8 Del. C. Section 220, the Plaintiffs, three stockholders of GGP, filed the action alleging the Transaction was the product of actionable breaches of fiduciary duties by GGP's Special Committee, its Board and its allegedly controlling stockholder, Brookfield. According to the Plaintiffs, if the Court finds they have not well pled that Brookfield was GGP's controlling stockholder, then Brookfield is liable as an aider and abettor of the fiduciary duty breaches committed by GGP's conflicted Board, a majority of whom were beholden to Brookfield. The Plaintiffs' allegations, and the defenses to them, summon the familiar rhythm of contemporary stockholder post-closing litigation in standard 4/4 time. In motions to dismiss the Complaint, the Defendants answer the Plaintiffs' refrain by arguing Brookfield's controller status is not well pled. Brookfield was a minority blockholder who neither controlled GGP generally nor with respect to the Transaction specifically. If the Court agrees it is not reasonably conceivable that Brookfield was GGP's controlling stockholder, then, say the Defendants, the defendant fiduciaries are entitled to business judgment deference because an overwhelming majority of GGP stockholders approved the Transaction in an informed, uncoerced vote and thereby "cleansed" any breaches of fiduciary duty. If the Court disagrees, the Defendants say all fiduciaries are nonetheless entitled to business judgment deference because the controller's influence was neutralized by a well-functioning, independent special committee of the Board and the informed, uncoerced approval of the Transaction by a majority vote of GGP's minority stockholders. And the beat goes on. Following the announcement of the Merger Agreement, two putative class actions were filed and subsequently consolidated. The Plaintiffs thereafter moved to expedite and for a preliminary injunction based principally on alleged disclosure violations. After GGP responded to the Plaintiffs' concerns by filing its June 11, 2018 Amendment No. 1 to the preliminary proxy, the Plaintiffs withdrew their motions. After the definitive Proxy was issued and the Transaction consummated, the Plaintiffs filed a Consolidated Verified Second Amended Shareholder Class Action Complaint on Jan. 7, 2019. On April 6, 2019, before the Plaintiffs responded to the Defendants' opening briefs in support of their motions to dismiss, the Court granted Plaintiff Kosinski's motion to intervene in the action for the limited purpose of staying the action while he pursued GGP books and records under 8 Del. C. Section 220. On Aug. 28, 2019, then-Vice Chancellor McCormick ruled that Kosinski had "demonstrated proper purposes" for the inspection of GGP's books and records and directed the parties to meet and confer regarding the scope of the inspection. GGP produced documents including Board and Special Committee meeting minutes and materials, director questionnaires, as well as emails. On Feb. 10, 2020, the Court entered final judgment in the 220 Action. After motion practice and responsive amendments under Chancery Rule 15(aaa), the Plaintiffs filed the operative Complaint on May 4, 2020, stating six causes of action. Count I alleges breach of fiduciary duty against BPY in its capacity as controlling stockholder of GGP. Count II alleges breach of the fiduciary duty of loyalty against the Director Defendants for approving the Transaction. Count III alleges breach of the fiduciary duty of loyalty against all the Defendants for failing to provide GGP stockholders with a fair summary of their appraisal rights and disclosing all material information relevant to GGP stockholders when deciding whether to vote in favor of the Transaction or pursue appraisal. Count IV alleges breach of fiduciary duty against Mathrani, BPY and the Brookfield Defendants for each party's role in the negotiation of Mathrani's post-Transaction employment contract, thereby facilitating Brookfield's control over Mathrani and allowing him to be objectively compromised as he participated in negotiating the Transaction. Count V alleges unjust enrichment against Brookfield as the party on the other side of an allegedly unfair Transaction. Finally, Count VI alleges aiding and abetting breaches of fiduciary duties in the alternative against BPY if it is deemed not to be GGP's controlling stockholder. Four groups of Defendants filed separate opening briefs in support of motions to dismiss the Complaint on July 6, 2020. The Plaintiffs filed their consolidated answering brief on Sept. 4, 2020, to which the Defendants replied on Oct.19, 2020. Oral argument was held on Nov. 16, 2020. After a request for supplemental briefing on Dec. 31, 2020, the matter was deemed submitted for decision on Feb. 18, 2021. Analysis Chancery Rule 12(b)(6) requires dismissal of a complaint if the plaintiff could not recover under "any reasonably conceivable set of circumstances susceptible of proof" based on the complaint's well-pled facts. While the Court need not accept conclusory allegations or "every strained interpretation of the allegations proposed by plaintiff," it "must accept as true all well-pled allegations in the complaint and draw all reasonable inferences from those facts in plaintiff's favor." A. Brookfield is Not a Controller The Plaintiffs argue they have well pled that Brookfield controlled the Board both with respect to the Transaction and GGP's business affairs more generally. They have attempted to set a stage for their breach of fiduciary duty claims that has Brookfield, despite its minority ownership stake, playing the role of GGP's controlling stockholder by virtue of its domination over GGP's fiduciaries in the negotiation and approval of the Transaction. The gambit, of course, is intended to ratchet up the scrutiny under which the conduct of GGP's fiduciaries will be measured. Even if Brookfield's control over GGP cannot be surmised from the Transaction itself, the Plaintiffs maintain they have alleged facts sufficient to support a reasonable inference that Brookfield controlled GGP generally. Judge Slights determined that Brookfield was not a controlling shareholder of GGP at the time of the Transaction. That finding has two consequences. First, neither Brookfield nor any Brookfield-affiliated Defendant owed fiduciary duties to GGP's shareholders, and so Count I alleging breach of fiduciary duty against BPY must be dismissed. Counts III and IV must also be dismissed as to BPY, as they are both predicated on the existence of BPY's fiduciary duties. Second, Corwin applies because the Transaction did not involve a conflicted controller. The Plaintiffs planned for this contingency, arguing that, even under Corwin, the Transaction cannot be blessed on the pleadings because stockholder approval was uninformed and coerced. B. Stockholder Approval Was Fully Informed and Uncoerced The Delaware Supreme Court affirmed in Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015) that, when a transaction not subject to the entire fairness standard is approved by a fully informed, uncoerced vote of the disinterested stockholders, the business judgment rule applies. Thus, in the absence of a controller, to avoid the application of the business judgment presumption under Corwin, a plaintiff must well-plead that the stockholder vote approving a transaction was either coerced or uninformed. Judge Slights opines that the Plaintiffs have failed to invoke either basis to avoid Corwin. The Judge is satisfied the Plaintiffs have failed to well-plead that the stockholder vote was uninformed or coerced. The legal effect of a fully-informed stockholder vote of a transaction with a non-controlling stockholder is that the business judgment rule applies and insulates the transaction from all attacks other than on the grounds of waste, even if a majority of the board approving the transaction was not disinterested or independent. As the Supreme Court explained, the "long-standing policy" of Delaware law has been to avoid the uncertainties and cost of judicial second-guessing when the disinterested stockholders have had the free and informed chance to decide on the economic merits of a transaction for themselves. No waste has been pled. Accordingly, Counts II (breach of fiduciary duty of loyalty against Director Defendants) and IV (bad faith and breach of the duty of loyalty concerning Mathrani's Employment Agreement against Mathrani, Brookfield and the other Brookfield Defendants) are dismissed. C. Aiding and Abetting In Count VI, the Plaintiffs plead in the alternative that, even if the Court finds Brookfield was not a controller, they have stated a viable claim that Brookfield aided and abetted the Special Committee's breach of fiduciary duties. To state a claim of aiding and abetting, Judge Slight notes that a plaintiff must allege: (1) the existence of a fiduciary relationship, (2) a breach of the fiduciary's duty, (3) knowing participation in that breach by the defendants, and (4) damages proximately caused by the breach. Accordingly, a well-pled claim of breach of fiduciary duty is a predicate to stating an aiding and abetting claim. Having found the Plaintiffs have failed to state a claim for breach of fiduciary duty against the Special Committee, it follows Count VI must also be dismissed. D. No Unjust Enrichment In Count V, the Plaintiffs allege that Brookfield was unjustly enriched by the Transaction. To obtain restitution for unjust enrichment, the Plaintiffs must show that the Defendants were unjustly enriched, that they secured a benefit, and that it would be unconscionable to allow them to retain that benefit. The Plaintiffs' legal theory is that Brookfield was unjustly enriched because the Transaction is the product of a misleading Proxy and conflicts among members of the Audit Committee and Special Committee. Because Judge Slights has determined the Plaintiffs have not adequately pled the Proxy was misleading or that the Audit or Special Committee functioned ineffectively, he holds that their claim that Brookfield has been unjustly enriched fails as a matter of law. Conclusion For the foregoing reasons, Judge Slights concludes that he cannot reasonably infer from the Complaint that Brookfield was GGP's controlling stockholder at the time of the Transaction, so Corwin, not MFW, is the appropriate paradigm under which to determine the applicable standard of review. He has also determined that the Complaint does not well plead that the stockholder vote approving the Transaction was either uninformed or coerced. The upshot is that the business judgment rule is the operative standard of review. Having determined that GGP stockholders were informed when they voted to approve the Transaction, including with respect to their right to seek statutory appraisal, the Judge holds that the Plaintiffs' claim for quasi-appraisal fails. Having declined to plead waste, the Plaintiffs' claims for breach of fiduciary duty against Brookfield, the Board and Mathrani also fail. And, from all of this, it follows that the Plaintiffs' claim in the alternative against Brookfield for aiding and abetting fails for lack of a predicate breach of fiduciary duty. Finally, because the Transaction was duly executed, the Plaintiffs' unjust enrichment claim against Brookfield fails. The Defendants' motions to dismiss, therefore, must be granted in full. A full-text copy of the Court's May 25, 2021 Memorandumm Opinion is available at https://tinyurl.com/2v45a4xx from Leagle.com. Ronald A. Brown Jr., Esquire -- rabrown@prickett.com -- Stephen D. Dargitz, Esquire, J. Clayton Athey, Esquire -- jcathey@prickett.com -- Marcus E. Montejo Esquire, and Samuel L. Closic Esquire -- slclosic@prickett.com -- of Prickett Jones & Elliott, P.A., in Wilmington, Delaware; Carl L. Stine Esquire -- cstine@wolfpopper.com -- and Adam J. Blander Esquire -- ablander@wolfpopper.com -- of Wolf Popper LLP, in New York City; and Frank P. DiPrima Esquire -- diprimalaw@aol.com -- of Law Office of Frank DiPrima, P.A., in Morristown, New Jersey, Co-Lead Attorneys for Plaintiffs. Seth D. Rigrodsky Esquire -- sdr@rl-legal.com -- and Gina M. Serra Esquire, of Rigrodsky Law, P.A., Wilmington, Delaware and Aaron Brody Esquire -- abrody@ssbny.com -- and Patrick Slyne Esquire, of Stull, Stull & Brody, in New York City, Attorneys for Plaintiffs' Executive Committee. Kevin G. Abrams, Esquire -- abrams@abramsbayliss.com -- John M. Seaman Esquire -- Seaman@AbramsBayliss.com -- and Matthew L. Miller, Esquire -- Miller@AbramsBayliss.com -- of Abrams & Bayliss LLP, Wilmington, Delaware and John A. Neuwirth, Esquire -- john.neuwirth@weil.com -- Evert J. Christensen, Jr., Esquire -- evert.christensen@weil.com -- Seth Goodchild Esquire seth.goodchild@weil.com -- and Matthew S. Connors Esquire -- matthew.connors@weil.com -- of Weil, Gotshal & Manges LLP, in New York City, Attorneys for Defendant Brookfield Property Partners L.P. David J. Teklits, Esquire -- dteklits@morrisnichols.com -- and Thomas P. Will Esquire -- twill@morrisnichols.com -- of Morris, Nichols, Arsht & Tunnell LLP, in Wilmington, Delaware, Attorneys for Defendants Richard Clark, Bruce Flatt and Brian W. Kingston. Raymond J. DiCamillo, Esquire -- dicamillo@rlf.com -- and Susan M. Hannigan Esquire -- twill@morrisnichols.com -- of Richards, Layton & Finger, P.A., Wilmington, Delaware and Brian T. Frawley Esquire, and Y. Carson Zhou Esquire, of Sullivan & Cromwell LLP, in New York City, Attorneys for Defendant Sandeep Mathrani. Peter J. Walsh, Jr., Esquire -- pwalsh@potteranderson.com -- Berton W. Ashman Jr., Esquire -- bashman@potteranderson.com -- and Jaclyn C. Levy Esquire -- jlevy@potteranderson.com -- of Potter Anderson & Corroon LLP, Wilmington, Delaware and Peter E. Kazanoff, Esquire, Michael J. Garvey, Esquire, Sara A. Ricciardi Esquire, and Eamonn W. Campbell Esquire, of Simpson Thacher & Bartlett LLP, in New York City, Attorneys for Defendants Mary Lou Fiala, Janice R. Fukakusa, John K. Haley, Daniel B. Hurwitz and Christina M. Lofgren. GREG GOSSETT: Non-Party Bid for Reconsideration in Ross Suit Nixed ------------------------------------------------------------------ In the class action lawsuit captioned as DEMETRIUS ROSS, on behalf of himself and all others similarly situated, v. GREG GOSSETT, et al., Case No. 3:15-cv-00309-SMY (S.D. Ill.), the Hon. Judge Staci M. Yandle entered an order denying the non-party Dennis L. Bailey's Motion for extension of time and motion for reconsideration. The Court said, "Bailey previously sought to intervene in this case. However, his request was denied because his claim alleging a deprivation of property while he was by the Illinois Department of Corrections is unrelated to this class action lawsuit. In his motion for reconsideration, Bailey now asserts that he suffered the same injuries during the same institutional shakedowns that are at the heart of this case." Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), "on timely motion, the court may permit anyone to intervene who has a claim or defense that shares with the main action a common question of law or fact." Even if Bailey does have similar claims, as a purported class member, he may intervene in this lawsuit and protect his individual interests only if class certification is denied. Class certification was granted on March 26, 2020; accordingly, Bailey's motions are denied, the Court adds. A copy of the Court's order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/34CD1Tv at no extra charge.[CC] GX ACQUISITION: Celularity Merger Related Suits Underway -------------------------------------------------------- GX Acquisition Corp. said in its Form 10-K/A report filed with the U.S. Securities and Exchange Commission on May 24, 2021, for the fiscal year ended April 3, 2021, that the company continues to defend putative class action suits related to its merger with Celularity Inc. On January 8, 2021, the company entered into a Merger Agreement and Plan of Reorganization with Alpha First Merger Sub, Inc., a Delaware corporation, and the company's direct, wholly-owned subsidiary, Alpha Second Merger Sub, LLC, a Delaware limited liability company and the company's direct, wholly-owned subsidiary, and Celularity Inc., a Delaware corporation. Pursuant to the Merger Agreement, at the closing of the transactions contemplated by the Merger Agreement, and in accordance with the Delaware General Corporation Law, as amended (DGCL), (i) First Merger Sub will merge with and into Celularity, with Celularity surviving the First Merger as the company's wholly-owned subsidiary; and (ii) immediately following the First Merger and as part of the same overall transaction as the First Merger, the Surviving Corporation will merge with and into Second Merger Sub, with Second Merger Sub being the surviving entity of the Second Merger. On February 4, 2021, a putative class action lawsuit was filed in the Supreme Court of the State of New York by a purported stockholder of the Company in connection with the Celularity Business Combination: Spero v. GX Acquisition Corp., et al., Index No. 650812/2021 (N.Y. Sup Ct. Feb 04, 2021). On February 26, 2021, the same purported stockholder filed an amended complaint in the lawsuit removing the class action allegations and certain of the other allegations. On February 8, 2021, a complaint was filed with the Supreme Court of the State of New York by a purported stockholder of the Company in connection with the Celularity Business Combination: Rogalla v. GX Acquisition Corp., et al., Index No. 650877/2021 (N.Y. Sup Ct. Feb 08, 2021). The Complaints name the Company and current members of the Company's board of directors as defendants. Additionally, the Rogalla Complaint names First Merger Sub, Second Merger Sub and Celularity as defendants. The Rogalla Complaint alleges breach of fiduciary duty claims against the Company's board of directors in connection with the Business Combination and aiding and abetting the Company's board of directors' breaches of fiduciary duties claims against the Company, First Merger Sub, Second Merger Sub and Celularity. These claims are based on allegations that the S-4 Registration Statement related to the Celularity Business Combination is materially misleading and/or omits material information concerning the Celularity Business Combination. The Spero Complaint alleges breach of fiduciary duty claims against the Company's board of directors in connection with the Business Combination and aiding and abetting the Company's board of directors' breaches of fiduciary duties claims against the Company. The claims are based on the sales process and valuation of the Company, as well as allegations that the S-4 Registration Statement related to the Celularity Business Combination is materially misleading and/or omits material information concerning the Celularity Business Combination. The Complaints generally seek injunctive relief or rescission, unspecified damages and awards of attorneys' and experts' fees, among other remedies. The Company believes that these allegations are without merit. GX Acquisition said, "These cases are in the early stages and the Company is unable to reasonably determine the outcome or estimate the loss, and as such, has not recorded a loss contingency. However, if the plaintiffs are successful in enjoining the Celularity Business Combination, the Celularity Business Combination would not be completed. In addition, the Company could be held liable for damages." GX Acquisition Corp. is an early-stage blank check company incorporated as a Delaware corporation and formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. The company is based in New York, New York. HARVEST CAPITAL: Portman Ridge Merger Related Suits Ongoing ----------------------------------------------------------- Harvest Capital Credit Corporation said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on May 27, 2021, that the company continues to defend putative class action complaints, related to its merger with Portman Ridge Finance Corporation. On December 23, 2020, Harvest Capital Credit Corporation, a Delaware corporation (HCAP), entered into an Agreement and Plan of Merger with Portman Ridge Finance Corporation, a Delaware corporation (PTMN), Rye Acquisition Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of PTMN (Acquisition Sub), and Sierra Crest Investment Management LLC, a Delaware limited liability company and the external investment adviser to PTMN (Sierra Crest). The Merger Agreement provides that, subject to the conditions set forth therein, (i) Acquisition Sub will merge with and into HCAP (the First Merger), with HCAP continuing as the surviving corporation and as a wholly-owned subsidiary of PTMN, and (ii) immediately after the effectiveness of the First Merger, HCAP will merge with and into PTMN, with PTMN continuing as the surviving corporation. In February and March of 2021, four purported HCAP stockholders filed complaints against HCAP, certain officers and directors of HCAP's Board of Directors, and/or certain affiliates of HCAP, among others, in the Court of Chancery in the State of Delaware, the Supreme Court of the State of New York and the United States District Court for the Eastern District of New York. The complaints filed in Chancery Court were filed as putative class action complaints. The Merger Complaints allege, among other things, that the registration statement on Form N-14 first filed by PTMN with the SEC on January 27, 2021 (which includes the preliminary proxy statement of HCAP) contains materially misleading and incomplete disclosures. The complaints seek, among other things, that HCAP make supplemental disclosures to address the alleged materially misleading and incomplete disclosures and to enjoin the closing of the Mergers. On March 30, 2021 and April 19, 2021, PTMN filed with the SEC amendments to the Preliminary Proxy Statement/Prospectus, and on April 21, 2021, HCAP filed the definitive merger proxy statement. HCAP and the individual defendants believe that HCAP has previously disclosed all information required to be disclosed to ensure that its stockholders can make an informed vote at the Special Meeting and that the additional disclosures requested by the plaintiffs are not required by the federal securities laws or Delaware law, and are otherwise immaterial. Accordingly, HCAP and the individual defendants believe the claims asserted in the Merger Complaints are without merit. However, in order to reduce the costs, risks and uncertainties inherent in litigation, HCAP has determined voluntarily to supplement the Proxy Statement. A copy of the supplemental disclosure is available at https://bit.ly/34AuiBd. Harvest Capital Credit Corporation is an externally managed, closed-end, non-diversified management investment company that has elected to be regulated as a business development company, or "BDC", under the Investment Company Act of 1940, or the 1940 Act. The company is based in New York, New York. HIDEAWAY HILLS: Residents One Step Closer to Class-Action Status ---------------------------------------------------------------- Siandhara Bonnet at rapidcityjournal.com reports that a circuit court judge rejected the state's argument that the Hideaway Hills homeowners lack legal standing to seek damages due to a sinkhole. Judge Kevin Krull made the ruling May 14 in the beginning steps of a lawsuit that can now proceed with becoming class-action status. Class-action status would include any resident affected by the sinkhole that exposed an abandoned gypsum mine in April 2020. More than 40 people from 15 homes were forced to evacuate due to the sinkhole and mine. "The named plaintiffs have demonstrated that their injuries likely will be redressed by a favorable decision - i.e., an award of damages, based on their constitutional right to individually bring an inverse condemnation case against the state," Krull wrote. Thirty residents signed onto the lawsuit against the state in Meade County in October. The complaint says the state should compensate residents with money from the South Dakota Cement Plant Trust, which had $333,808,945 as of Sept. 30, 2020. Attorney Kathleen Barrow with the Fox Rothschild law firm representing the residents, along with Terence Quinn of The Quinn Law Firm, said they will now proceed with the class-certification process. Barrow said the state can't appeal the decision unless "for some reason our standing was not viable and should not be allowed to go forward, but the issue for now is closed." She also said the court could decide if sovereign immunity is an issue during the class-action certification process, but it isn't an issue right now. If the court decides it is an issue, plaintiffs and other residents that would seek to join the possible class-action lawsuit would have to file lawsuits against the state and other defendants separately. Barrow said they now have a motion for leave to conduct a precertification discovery and will seek elements necessary to have a class-action status. The elements would have to show there are numerous plaintiffs similarly situated to those in the lawsuit, that they have the same kind of damages and legal claims, and have to show that the counsel who represents the plaintiffs are adequate to do the job. If a judge certifies the request, it will continue like any other lawsuit. "I think the most important thing here and what we're most excited about is that the court made it clear that the state does own the subsurface and had certain obligations to maintain the surface," Barrow said. "The people that have been harmed have standing to bring claims to be made financially whole and to be safe in their homes, to be able to leave homes, find safety and live the rest of their lives." She said this opens the door so Hideaway Hills residents can be made whole and safe again. A second lawsuit is on hold as plaintiffs wait for the South Dakota Supreme Court to decide on overturning a Meade County judge's decision to dismiss the county and former commissioners from the lawsuit. Hideaway Hills residents are also seeking answers to a potential loss of sewage service due to the mine. The Northdale Sanitary District, which oversees water and sewage for the Hideaway Hills and Northdale subdivisions, has yet to decide on the next course of action pending further research to reroute a sanitary sewer main. [GN] I360 LLC: Court Dismisses Tag Suit Over Invasion of Privacy ----------------------------------------------------------- Judge M. James Lorenz of the U.S. District Court for the Southern District of California dismissed the case, JENNIFER TAG, Plaintiff v. i360, LLC et al., Defendants, Case No. 21cv975-L (MDD) (S.D. Cal.), for lack of subject matter jurisdiction. In the putative class action alleging invasion of privacy, the Plaintiff bases federal jurisdiction on the minimal diversity of citizenship required by the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d) ("CAFA"). Because it is not possible to determine on the face of the complaint that minimal diversity is present, Judge Lorenz dismissed the action with leave to amend to allege subject matter jurisdiction. The Judge explains that the Plaintiff relies on CAFA which provides for jurisdiction over class actions where the matter in controversy exceeds $5 million and requires that any member of a class of plaintiffs is a citizen of a State different from any defendant. The complaint must affirmatively allege the state of citizenship of each party. The Judge finds that individuals like the Plaintiff are citizens of the state where they are domiciled. The Plaintiff alleges she is a California citizen. One named Defendant, Joe Leventhal, is an individual. The Plaintiff does not allege his citizenship. Also, the two named Defendants, i360, LLC and GC Strategies, LLC, are limited liability companies. The citizenship of a limited liability company for purposes of diversity jurisdiction is determined by examining the citizenship of each of its members. The Plaintiff does not allege the citizenship of the Defendants' members. Accordingly, the citizenship of these Defendants cannot be determined from the face of the complaint. Because the Plaintiff does not allege any Defendant's citizenship, Judge Lorenz concludes that she has not alleged minimal diversity as required for subject matter jurisdiction under CAFA. Therefore, the complaint is dismissed for lack of subject matter jurisdiction. Pursuant to 28 U.S.C. Section 1653, the Plaintiff is granted leave to file an amended complaint to supplement her jurisdictional allegations. If she chooses to file an amended complaint, she must do so no later than June 18, 2021. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/a54nhyjn from Leagle.com. INTRUSION INC: Rosen Law Reminds Investors of June 15 Deadline -------------------------------------------------------------- WHY: New York, N.Y., May 21, 2021. Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Intrusion Inc. (NASDAQ: INTZ) between January 13, 2021 and April 13, 2021, inclusive (the "Class Period"), of the important June 15, 2021 lead plaintiff deadline. SO WHAT: If you purchased Intrusion securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the Intrusion class action, go to http://www.rosenlegal.com/cases-register-2082.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 15, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience or resources. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Intrusion's Shield product was merely a repackaging of existing technology in the Company's portfolio; (2) Shield lacked the patents, certifications, and insurance critical to the sale of cybersecurity products; (3) Intrusion had overstated the efficacy of Shield's purported ability to protect against cyberattacks; (4) as a result of the foregoing, Intrusion's Shield was reasonably unlikely to generate significant revenue; and (5) as a result of the foregoing, defendants' positive statements about Intrusion's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the Intrusion class action, go to http://www.rosenlegal.com/cases-register-2082.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] INTUIT INC: Free File Suit Resolved on Non-Class Basis ------------------------------------------------------ Intuit Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 25, 2021, for the quarterly period ended April 30, 2021, that the company entered into an agreement that resolved the Intuit Free File Litigation on an individual non-class basis, without any admission of wrongdoing, for a non-material amount. Beginning in May 2019, various legal proceedings were filed and certain regulatory inquiries were commenced in connection with the company's provision and marketing of free online tax preparation programs. The company believes that the allegations contained within these legal proceedings are without merit. The company is vigorously defending its interests in the legal proceedings and cooperating in the inquiries. These proceedings include, among others, multiple putative class actions that were consolidated into a single putative class action in the Northern District of California in September 2019 (the "Intuit Free File Litigation") and demands for arbitration that were filed beginning in October 2019. In August 2020, the Ninth Circuit Court of Appeals ordered that the putative class action claims be resolved through arbitration. Intuit entered into a proposed settlement agreement in November 2020 to resolve the putative class action, which was rejected by the court. On May 20, 2021, Intuit entered into an agreement that resolved the Intuit Free File Litigation on an individual non-class basis, without any admission of wrongdoing, for a non-material amount. Intuit Inc. provides financial management and compliance products and services for small businesses, consumers, self-employed, and accounting professionals in the United States, Canada, and internationally. Intuit Inc. was founded in 1983 and is headquartered in Mountain View, California. KONICA MINOLTA: Court Narrows Claims in Luense ERISA Class Suit --------------------------------------------------------------- In the case, RAY ALLEN LUENSE, PAMELA PEARSON, DANIEL F. SETTNEK, and NEIL ROSE, Individually and as representatives of a class of participants and beneficiaries on behalf of the Konica Minolta 401(k) Plan, Plaintiffs v. KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., BOARD OF DIRECTORS OF KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., KONICA MINOLTA 401(K) PLAN COMMITTEE, SANDRA SOHL, SUSAN MCCARTHY, and JOHN DOES 1-30, Defendants, Civil Action No. 20-6827 (JMV) (MF) (D.N.J.), Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey granted in part and denied in part the Defendants' motion to dismiss the Plaintiffs' Complaint. The putative class action, brought under the Employee Retirement Income Security Act ("ERISA"), arises out of allegations that fiduciaries of Konica Minolta's 401(k) plan breached their duties of loyalty and prudence and engaged in a prohibited transaction. The named Plaintiffs are four individuals who participated in the Plan. They bring the action on behalf of themselves and a proposed class defined as "all persons, except the Defendants and their immediate family members, who were participants in or beneficiaries of the Plan, at any time between June 4, 2014 and the present." Defendant Konica is a New York corporation with its principal place of business in New Jersey. Konica is the sponsor, administrator, and a fiduciary of the Plan, within the meaning of 29 U.S.C. Section 1002(21)(A). Defendant Sandra Sohl "has been the Director, Compensation, Benefits & HRIS at Konica" since April 2013. Defendant Susan McCarthy has been the Manager, Compensation & HRIS at [Konica] since April 2014." The "Board Defendants" are a group comprised of Konica's Board of Directors and each of its individual members during the Class Period (John Does 1-10). The "Committee Defendants" are a group comprised of both the Plan Committee to which Konica delegated certain administrative and investment related duties, and each of its members during the Class Period (John Does 11-20). The remaining Defendants, John Does 21-30, "include but are not limited to, Konica officers and employees where are/were fiduciaries of the Plan during the Class Period." The Plan is a single-employer "defined contribution" or "individual account" plan, within the meaning of 29 U.S.C. Section 1002(34). This type of plan "confers tax benefits on participating employees to incentivize saving for retirement." The Plan provides for individual accounts for each participant and for benefits based solely upon the amount contributed to those accounts, and any income, expense, gains and losses, and any forfeitures of accounts of the participants which may be allocated to such participant's account." As a result, the Plan's retirement benefits "are based solely on the amounts allocated to each individual's account." The Plaintiffs allege that the Defendants were fiduciaries of the Plan and that, pursuant to 29 U.S.C. Section 1104(a)(1), they were required to manage and administer the Plan in the interest of the Plan's participants and bound by the duties of loyalty and prudence. As fiduciaries, 29 U.S.C. Section 1105(a) provides that Defendants could be liable for another fiduciary's breach of responsibility. The Defendants breached these duties, the Plaintiffs allege, by including "many mutual fund investments that were more expensive than necessary and otherwise were not justified on the basis of their economic value to the Plan"; failing "to have a proper system of review in place to ensure that participants in the Plan were being charged appropriate and reasonable fees for the Plan's investment options"; and failing "to leverage the size of the Plan to negotiate lower expense ratios for certain investment options maintained and/or added to the Plan during the Class Period." The Plaintiffs filed their Complaint on June 4, 2020. The Complaint asserts three claims: Count One alleges that Konica and the Committee Defendants breached the fiduciary duties of loyalty and prudence; Count Two alleges that Konica and the Board Defendants failed to adequately monitor other fiduciaries; and Count Three alleges a prohibited transaction based on excessive and unreasonable compensation in violation of ERISA. Presently before the Court is the Defendants' motion to dismiss the Plaintiffs' Complaint. Analysis A. Article III Standing The Defendants argue that the Plaintiffs lack standing to assert claims related to the 18 investment options in which they did not invest because they suffered no personal injury as a result of those investments. They further contend that the Plaintiffs lack standing with respect to their allegations that the Plan should have included more index funds and their allegations concerning the expense of the Plan's investment options; the Defendants allege that the Plaintiffs have failed to plausibly allege that they were injured or suffered losses in connection with these allegations. In opposition, the Plaintiffs submit that this argument has been rejected by courts across the country because their losses in their Plan investment options, as well as the higher recordkeeping fees they paid along with all other participants in the Plan are fairly and properly traceable to the Defendants' breaches of the duties of prudence and loyalty as described in the Complaint. Pursuant to Thole v. U.S. Bank N.A., ___ U.S. ___, 140 S.Ct. 1615 (2020), Judge Vazquez holds that the Plaintiffs have standing with respect to the investment funds in which they invested. As for the remaining investment funds in which the Plans were invested but the named Plaintiffs were not, Thole suggests that a plaintiff has standing to sue on behalf of the Plan, even if that particular plaintiff was not invested in each one of the Plan's investment vehicles. B. Defendants' Fiduciary Status As a threshold matter, the Court must first consider whether Defendants were acting as fiduciaries under ERISA when taking the actions of which the Plaintiffs complain. The the Plaintiffs allege that it is the Plan sponsor, administrator, and a fiduciary of the Plan within the meaning of 29 U.S.C. Section 1002(21)(A) because it is a named fiduciary under the Plan; it exercised discretionary authority and control over Plan management and/or over disposition of Plan assets; and it appointed Plan fiduciaries. The Defendants argue that the Plaintiffs' allegations that Konica is the Plan's sponsor is insufficient to create fiduciary status, and the Plaintiffs' allegations that Konica was a named fiduciary and the Plan's administrator are insufficient because Konica delegated these responsibilities to the Committee. Similarly, theDefendants contend, appointing fiduciaries did not confer fiduciary responsibilities upon Konica. Judge Vazquez finds that the Plaintiffs have plausibly alleged that Defendant Konica had a fiduciary responsibility to monitor the Committee's actions but have not adequately pled that Konica maintained any additional fiduciary responsibilities with respect to the alleged conduct. He finds that the Plaintiffs fail to sufficiently allege that the Board is a fiduciary with respect to the relevant actions. The Complaint is also devoid of plausible allegations that any individual member of the Board possessed or exercised discretionary authority over the appointment of Plan fiduciaries. Hence, the Plaintiffs have failed to sufficiently plead that the individual members of the Board were fiduciaries. The Judge concludes that, in addition to the Committee -- which the Defendants agree is a fiduciary -- the Plaintiffs have plausibly alleged that Konica had a duty to monitor the Committee. The Plaintiffs fail to plausibly allege that any other Defendants were fiduciaries with respect to the actions challenged in the Complaint. C. Breach of the Fiduciary Duties of Prudence and Loyalty (Count One) Count One is brought against Konica and the Committee Defendants. Because the Plaintiffs failed to plausibly allege that the individual Committee members were fiduciaries, or that Konica had fiduciaries responsibilities beyond a duty to monitor the Committee, Count One fails to state a claim as to those Defendants. The Defendants do not argue that the Plaintiffs failed to adequately allege the causation element. Therefore, Judge Vazquez considers only whether the Plaintiffs adequately stated a claim that the Committee breached its fiduciary duties of prudence and loyalty. Viewing the Plaintiffs' overall allegations of the Plan's mismanagement, Judge Vazquez concludes that dismissal of the Plaintiffs' duty of prudence claim as against the Committee at this early stage would be inappropriate. First, the Plaintiffs adequately plead that the Plan included funds with higher expense ratios than comparable funds, and the Plan's funds failed to outperform the less-expensive comparable funds. Second, the Plaintiffs sufficiently allege that many funds were retained in the Plan despite their underperformance as compared to their benchmarks. However, the Judge holds that although the Plaintiffs' opposition brief includes arguments that the Committee was acting for the benefit of Prudential, it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss, and the Plaintiffs' Complaint does not include sufficient factual allegations to support these contentions. As a result, the Defendants' motion to dismiss is granted as to Count One with respect to the duty of loyalty. D. Failure to Adequately Monitor Other Fiduciaries (Count Two) Count Two is brought against Defendants Konica, the Board, and the individual members of the Board; however, the Complaint sufficiently alleges only that Konica had a duty to monitor the Committee. Judge Vazquez therefore analyzes Count Two solely as to Konica. Because the Complaint sufficiently pleads that the Committee breached the duty of prudence, the Plaintiffs' failure to monitor claim also survives. The Defendants' motion is denied as to Count Two vis-a-vis Konica. E. Prohibited Transaction - Excessive and Unreasonable Compensation for Services (Count Three) Count Three alleges a violation of 29 U.S.C. Section 1108(b)(2) based on excessive and unreasonable compensation paid to the Plan's recordkeeper, Prudential. As an initial matter, unlike Counts One and Two, the Plaintiffs do not specify against which the Defendant(s) Count Three is brought. One allegation under Count Three refers to the "Defendants," while another refers to the "Defendant." Because "prohibited transaction claims require that an action be taken by an ERISA fiduciary," and the Complaint plausibly alleges only that the Committee was a fiduciary with respect to any duties beyond monitoring, Judge Vazquez construes Count Three as against the Committee. The Judge finds that the Plaintiffs' prohibited transaction claim actually appears to focus on allegations that the Defendants cannot satisfy exceptions to 29 U.S.C. Section 1106(a)(1). The Complaint invokes certain provisions within the Code of Federal Regulations interpreting these exceptions -- the Plaintiffs suggest that the Defendants cannot satisfy these exceptions and, therefore, this was a prohibited transaction because Prudential's compensation was not reasonable. But the provisions the Plaintiffs discuss concern exceptions to Section 1106(a) -- i.e., the regulations provide guidance as to how some transactions that appear to violate Section 1106(a) may be exempt from Section 1106(a)'s requirements and, therefore, not prohibited transactions. While the Plaintiffs allege that the Defendants do not satisfy these exceptions, the Plaintiffs failed to meet their threshold burden, that is, providing sufficient allegations of a violation of Section 1106(a) in the first instance. As a result, Judge Vazquez concludes that the Plaintiffs failed to state a prohibited transactions claim and Count Three is dismissed. Conclusion For the reasons set forth, Judge Vazquez granted in part and denied in part the Defendants' motion to dismiss. Count One is dismissed as against Konica and the individual Committee members and, insofar as it invokes the duty of loyalty, it is dismissed as to the Committee. Count Two is dismissed as to the Board of Directors and the individual members of the Board. Count Three is dismissed. The dismissals are without prejudice and the Plaintiffs will have 30 days to file an amended complaint that cures the deficiencies noted herein. If the Plaintiffs do not file an amended complaint within that time, the claims dismissed without prejudice will be dismissed with prejudice. An appropriate Order accompanies the Opinion. A full-text copy of the Court's May 24, 2021 Opinion is available at https://tinyurl.com/we4tj357 from Leagle.com. KS STATEBANK: Class Settlement in Saliba Suit Gets Initial Approval ------------------------------------------------------------------- In the case, Ricci Saliba, individually and on behalf of all others similarly situated, Plaintiff v. KS Statebank Corporation, Defendant, Case No. CV-20-00503-PHX-JAT (D. Ariz.), Judge James A. Teilborg of the U.S. District Court for the District of Arizona granted the Plaintiff's Unopposed Motion for Preliminary Approval of Class Settlement. The Plaintiff, on behalf of herself and a class of similarly situated persons, and the Defendant have requested entry of an order granting preliminary approval of their class action settlement. Per the Unopposed Motion for Preliminary Approval of Class Settlement, the Parties have agreed to settle the Action pursuant to the terms and conditions set forth in an executed Settlement Agreement. Subject to the terms and conditions of the Settlement and subject to Court approval, the Plaintiff and the proposed Settlement Class will fully, finally, and forever resolve, discharge, and release their claims. The Settlement has been filed with the Court, and the Plaintiff and the Class Counsel have filed an Unopposed Motion for Preliminary Approval of Class Settlement. Upon considering the Motion, the Settlement and all exhibits thereto, the record in these proceedings, the representations and recommendations of counsel, and the requirements of law, Judge Teilborg finds that: (1) the Court has jurisdiction over the subject matter and the Parties to the Action; (2) the proposed Settlement Class meets the requirements of Federal Rule of Civil Procedure 23 and should be conditionally certified for settlement purposes only; (3) the persons and entities identified below should be appointed Class Representative and Class Counsel; (4) the Settlement is the result of informed, good-faith, arm's-length negotiations between the Parties and their capable and experienced counsel, and is not the result of collusion; (5) the Settlement is within the range of reasonableness and should be preliminarily approved; (6) the proposed Notice program and proposed forms of Notice satisfy Federal Rule of Civil Procedure 23 and constitutional due process requirements, and are reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, class certification, terms of the Settlement, Class Counsel's application for an award of attorneys' fees and expenses and request for a Service Award for Plaintiff, and their rights to opt-out of the Settlement Class or object to the Settlement, Class Counsel's Fee Application, and/or the request for a Service Award for Plaintiff; (7) good cause exists to schedule and conduct a Final Approval Hearing, pursuant to Federal Rule of Civil Procedure 23(e), to assist the Court in determining whether to grant Final Approval of the Settlement and enter the Final Approval Order, and whether to grant Class Counsel's Fee Application and request for a Service Award for Plaintiff; and (8) the other related matters pertinent to the Preliminary Approval of the Settlement should also be approved. Based on the foregoing, Judge Teilborg granted the motion for preliminary approval of the settlement. He therefore provisionally certifies the following Settlement Class: All persons, and their respective marital communities, within the United States who, (1) within the four years prior to the filing of Plaintiff's Complaint in the Lawsuit, (2) received a text message from Roy Meshel while he was employed by Defendant, (3) advertising and/or promoting one or more of Defendant's mortgage loan products and/or mortgage loan rates, (4) using the texting software provided by Skipio LLC, (5) to said person's cellular telephone number, (6) where the person's telephone number was not obtained by Defendant from a non-party lead generator, and was instead obtained by Mr. Meshel. The Judge appointed Plaintiff Ricci Saliba as the Class Representative and the following firms and people as the Class Counsel for the Settlement Class: Manuel Hiraldo: Hiraldo, P.A., Michael Eisenband: Eisenband Law, PA, and Ignacio Hiraldo: IJH Law. The Judge recognizes that the Defendant reserves its defenses and objections against the Plaintiff's claims, and rights to oppose any request for class certification on Plaintiff's underlying claims, in the event that the proposed Settlement does not become final for any reason. Judge Teilborg preliminarily approved that Settlement, together with all exhibits thereto, as fair, reasonable, and adequate. He also approved the form and content of the Class notices, substantially in the forms attached as Exhibits 1 and 2 to the Settlement Agreement. Epiq Class Action & Claims Solutions, Inc. will serve as the Administrator. Within 10 days of this Order, the Parties will provide the Administrator with Settlement Class Data, which will be treated as Confidential Information, so that the Administrator can carry out its duties as identified herein and pursuant to the Parties' Settlement. The Administrator will implement the Class Notice program, as set forth in the Preliminary Approval Order and in the Settlement, using the Class notices substantially in the forms attached as Exhibits to the Settlement and approved by the Preliminary Approval Order. Notice will be provided to the members of the Settlement Class pursuant to the Class Notice program, as specified in the Settlement and approved by this Preliminary Approval Order. The Administrator will administer Mail Notice as set forth in the Settlement. The Administrator will also establish a Settlement Website as a means for the Settlement Class members to obtain notice of, and information about, the Settlement. The Settlement Website will be established as soon as practicable following Preliminary Approval, but no later than before commencement of the Class Notice program. It will include hyperlinks to the Settlement, the Long-Form Notice, the Preliminary Approval Order, and other such documents as the Class Counsel and the counsel for the Defendant agree to include. These documents will remain on the Settlement Website until at least 60 days following the deadline for submitting objections and opt-out requests. The Administrator is directed to perform all substantive responsibilities with respect to effectuating the Class Notice program, as set forth in the Settlement. A Final Approval Hearing will be held before the Court on Oct. 6, 2021, at 11:00 a.m. Any person within the Settlement Class who wishes to be excluded from the Settlement Class may exercise their right to opt-out of the Settlement Class by following the opt-out procedures set forth in the Settlement and in the Notices at any time during the Opt-Out Period. To be valid and timely, opt-out requests must be received by those listed in the Long-Form Notice on or before the last day of the Opt-Out Period, which is 60 days from mailing of the Notice, as specified in the Notice. Any Settlement Class Member may object to the Settlement, the Class Counsel's Fee Application, or the request for a Service Award for Plaintiff. Any such objections must be mailed to the Clerk of the Court, the Defendant's Counsel and the Class Counsel at the addresses indicated in the Long-Form Notice. For an objection to be considered by the Court, the objection must be postmarked no later than 60 days from mailing of the Notice, as set forth in the Notice. The Plaintiff and the Class Counsel will file their Motion for Final Approval of the Settlement, Fee Application, and request for a Service Award for Plaintiff no later than 45 days before the Final Approval Hearing. They will file their responses to timely filed objections to the Motion for Final Approval of the Settlement, the Fee Application and/or request a Service Award for Plaintiff no later than 15 days before the Final Approval Hearing. All proceedings in the Action are stayed until further order of the Court, except as may be necessary to implement the terms of the Settlement. Based on the foregoing, Judge Teilborg set the following schedule for the Final Approval Hearing and the actions which must take place before and after it: a. Deadline for Completion of Mailed Notice Program - 60 days after Preliminary Approval; no later than 90 days before the Final Approval Hearing b. Deadline for filing papers in support of Final Approval of the Settlement and Class Counsel's application for an award of attorneys' fees and expenses - 45 days prior to the Final Approval Hearing c. Deadline for opting-out of Settlement and submission of objections - 60 days from mailing of Notice; no later than 30 days prior to the Final Approval Hearing d. Responses to Objections - 15 days prior to the Final Approval Hearing e. The Final Approval Hearing - Oct. 6, 2021 A full-text copy of the Court's May 25, 2021 Order is available at https://tinyurl.com/4n4zdjjc from Leagle.com. LA SALLE UNIVERSITY: Title IX Attorney Hired by Volleyball Players ------------------------------------------------------------------ Mike Jensen at inquirer.com reports that members of La Salle University's volleyball team have retained an attorney experienced in Title IX cases, according to a letter from the attorney sent by email to La Salle's president threatening a class-action lawsuit due to what he claimed were Title IX violations as a result of women's sports teams being included in cuts announced last year. Last September, La Salle announced it was cutting seven sports at the end of the academic year, with 130 current students being impacted by the cuts. Sports being cut initially were to include four men's programs and three women's programs. Earlier this month, the school announced it would be reinstating one of the men's programs, swimming and diving, after a fundraising drive by alumni of the program. The letter written, shared with the Inquirer, was sent by Arthur Bryant of Bailey & Glasser LLP to La Salle president Colleen Hanycz, claiming La Salle is "depriving women athletes and potential athletes of equal participation opportunities and treatment in violation of Title IX of the Education Amendments of 1972." It further added, "Please respond to this letter as soon as possible and, in any event, no later than Thursday, May 27, 2021." The school acknowledged the letter was received. A statement was provided by school spokesman Christopher Vito: "Title IX was a critical factor in the University's decision in September and the reinstatement of men's swimming and diving in May. This is the first notice we have received from a standpoint of perceived noncompliance with Title IX. Beyond that, we do not comment on potential or ongoing litigation." Bryant, who began his legal career in Philadelphia but now works in Oakland, Calif., was part of the legal team that won a Title IX settlement against Temple in the 1980s and a suit filed against Brown in 1991 that prevailed in the courts. In a phone interview, he said he couldn't say how many members of the volleyball team he represented, noting that when team members transfer to another school seeking an opportunity to play, "only the women who are left are in position to sue." He said he was contacted "a day or two after they reinstated the men's swimming and diving team." His letter stated that "the elimination of the women's volleyball, softball, and tennis teams constitutes illegal sex discrimination in violation of Title IX." Title IX prohibits educational institutions receiving federal funds from eliminating women's teams for which interest, ability, and competition are available, Bryant said in the letter, "unless 'intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments." "La Salle fails this test," Bryant wrote in the letter, noting that in the most recent publicly available data, La Salle's undergraduate population was 64% women in 2019-20 while the school's intercollegiate varsity athletic team rosters that year had 237 men and 276 women, or 53.8% women -- "creating a 10.2% gap between the women's undergraduate enrollment rate and their intercollegiate athletic participation rate." Given those previous numbers, Bryant said in the letter, La Salle needed to add opportunities for 145 women to its intercollegiate athletic program to reach gender equity. Bryant told the Inquirer: "It's not complicated, it's real simple. The programs are separate, they have to be equal. You can't discriminate against women to make money, to avoid losing money, or because of COVID." Bryant has been involved in recent legal talks involving planned sports cuts at William and Mary, East Carolina, Dartmouth, and Clemson, each school ultimately deciding to restore the women's sports that had been designated to be cut, he noted. Fresno State declined to go that route and a suit brought by members of the women's lacrosse team is currently in litigation, Bryant representing the players. Last month, a judge declined to issue a preliminary injunction restoring the sport while the case is being decided. In an interview last September when La Salle's cuts were initially announced, athletic director Brian Baptiste said COVID-19 pandemic financial issues did "accelerate the process," but suggested that it only played a part in the cuts. "This was really about how do we create a better experience, how do we align with our peers?" Baptiste said, adding that this was not a cost-cutting measure, that resources saved would be "reinvested" in other sports. La Salle's baseball program, which just set a season record for victories, also has been attempting to save itself from being cut by fundraising. The school said this month in a statement that La Salle's board of trustees considered that matter closed. As a result of reinstating the one men's sport, Bryant said in the letter, "the school's intercollegiate athletic participation will be approximately 172 men and 236 women, or 57.84% women-creating a 6.16% participation gap. Therefore, with the announced reinstatement of the men's team, La Salle now needs to add approximately 70 women to reach gender equity under Title IX. This participation gap is large enough that La Salle could reinstate all three of the eliminated women's teams, which offer opportunities for approximately 40 women combined." Bryant noted in the letter, "I would like to meet with you and/or the school's lawyers and discuss the relevant facts and the law, as well as the likely outcome if a lawsuit is filed. It is my hope that, considering these factors, La Salle will agree to reinstate the women's volleyball, softball, and tennis teams and come into compliance with Title IX to avoid the need for a lawsuit." [GN] LEXISNEXIS RISK: Class Settlement in Gaston Suit Has Final Approval ------------------------------------------------------------------- In the case, DELORIS GASTON, et al., Plaintiffs v. LEXISNEXIS RISK SOLUTIONS INC., et al., Defendants, Civil Action No. 5:16-cv-00009-KDB-DCK (W.D.N.C.), Judge Kenneth D. Bell of the U.S. District Court for the Western District of North Carolina, Statesville Division, granted the Parties' Joint Motion for Final Approval of Proposed Settlement, and the Plaintiffs' Motion for Attorneys' Fees, Expenses and Service Awards. On Jan. 25, 2021, the Court granted the Parties' Motion for Preliminary Approval of the Proposed Settlement and conditionally certified the settlement class pending final approval of the settlement. The cause came before the Court upon the Parties' Joint Motion for Final Approval and the Plaintiffs' Motion for Attorneys' Fees and Incentive Awards. After careful consideration of the proposed Settlement Agreement and its exhibits, the Motions and supporting Memoranda and arguments of counsel and finding that no opposition to the proposed settlement has been expressed, Judge Bell finds that Final Approval of the Settlement Agreement should be granted, as well as the Motion for Attorneys' Fees and Incentive Awards. For the sole purpose of determining: (i) whether the Court should finally approve the proposed settlement as fair, reasonable, and adequate; and (ii) whether the Court should dismiss the litigation with prejudice as to the Defendants, Judge Bell finally certifies a settlement class and subclass as follows: a. Settlement Class: All persons who: (i) at any time within the four years prior to the date the Complaint was filed through the date of Final Judgment, (ii) had his or her personal information (including a driver identification number, name, address, or telephone number) appear on a Crash Report, and (iii) that Crash Report was available for purchase via an online portal or other online means supported, owned or operated by or on behalf of PoliceReports.US, LLC or LexisNexis Claims Solutions Inc. b. Settlement Subclass: All persons who: (i) are members of the Rule 23(b)(2) Settlement Class, and (ii) whose Crash Report was prepared by the CMPD. If the Settlement Agreement is not upheld on appeal, or is otherwise terminated for any reason, the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD Settlement Subclass will be decertified; the Settlement Agreement and all negotiations, proceedings, and documents prepared, and statements made in connection therewith, will be without prejudice to any party and will not be deemed or construed to be an admission or confession by any party of any fact, matter, or proposition of law; all parties will stand in the same procedural position as if the Settlement Agreement had not been negotiated, made, or filed with the Court; and the Parties will be permitted to pursue their respective appeals to the United States Court of Appeals for the Fourth Circuit. Having certified the class under Rule 23(b)(2), and having considered the work Named Plaintiffs' counsel have done in identifying and investigating potential claims in the action, the counsel's experience in handling complex litigation, the counsel's knowledge of the applicable law, and the resources the counsel have committed to representing the class and subclass, the following attorneys are designated the Class Counsel under Rule 23(g)(1): (i) David M. Wilkerson and Larry S. McDevitt of The Van Winkle Law Firm; (ii) Christopher L. Cogdill of Christopher L. Cogdill P.A.; and (iii) Eugene Clark Covington, Jr., of Eugene C. Covington, P.A. The Court has regrettably been informed of the death of Deloris Gaston, who died after the proposed settlement was preliminarily approved by the Court. In light of Ms. Gaston's death, and upon consent of the Defendants, Leonard Gaston is designated as the Class Representative. Judge Bell finds that the terms of the proposed settlement are adequate and reasonable for purposes of final approval and the proposed settlement as set forth in the Settlement Agreement is finally approved as fair, reasonable, and adequate. The Judge appointed American Legal Claim Services LLC ("ALCS") as the Settlement Administrator for the purpose of providing the required notice under CAFA and administering the Notice Program. With regard to attorneys' fees, expenses and an incentive award in connection for the Rule 23(b)(2) settlement, the Class Counsel has requested a total award of $5.15 million, which the Defendants have agreed to pay in addition to their other obligations under the Settlement Agreement. With respect to attorneys' fees, the Judge finds that a lodestar of $2,755,405 and a multiplier of approximately 1.85 is applicable and reasonable, and an award of $5,098,094.31 is appropriate. The Judge also finds that the Class Counsel's expenses of $31,905.69 in support of the litigation are reasonable, for a total award to the class counsel for fees and expenses of $5.13 million. Finally, Judge Bell finds that an incentive award of $20,000 to Leonard Gaston is an appropriate award for his service as a Class Representative. Mr. Gaston acted for the benefit of the class, reviewed documents provided to him by his Counsel, discussed with Counsel aspects of the case, discovery issues, and settlement negotiations, and was deposed at length. As with attorneys' fees and expenses, the Defendants do not oppose the award. Therefore, the Judge finds that a service award in the amount of $20,000 to Mr. Gaston is appropriate. In light of the foregoing, Judge Bell granted (i) the Motion for Final Approval of Proposed Settlement and (ii) the Motion for Attorneys' Fees, Expenses and Service Awards, consistent with his Order. A full-text copy of the Court's May 24, 2021 Order is available at https://tinyurl.com/ybsyuhsa from Leagle.com. LOUISIANA: Class of Medicaid-Eligible Youths Certified in AA v. LDH ------------------------------------------------------------------- In the case, A. A., by and through his mother, P.A., ET AL. v. DR. COURTNEY N. PHILLIPS, in her official capacity, as Secretary of the Louisiana Department of Health, ET AL., Case No. 19-00770-BAJ-SDJ (M.D. La.), Judge Brian A. Jackson of the U.S. District Court for the Middle District of Louisiana granted the Plaintiffs' renewed motion for class certification. The putative class action challenges whether the Louisiana Department of Health ("LDH") is fulfilling its statutory duty to provide medically necessary mental health interventions to Medicaid-eligible children with diagnosed mental health disorders. Similar class-action lawsuits are proceeding against state agencies across the country. The Plaintiffs' core allegation is that LDH maintains a policy of not providing "intensive home and community-based services" ("IHCBS") -- defined as "intensive care coordination, crisis services, and intensive behavioral services and supports that are necessary to correct or ameliorate the Plaintiffs' mental illnesses or conditions." They allege that, instead, LDH only provides basic mental health interventions, such as medication management and infrequent counseling. As a result, Medicaid-eligible children requiring intensive mental health care are untreated and, when they inevitably experience mental health crises, are forced to seek emergency care or, worse, psychiatric institutionalization. Plaintiffs contend that LDH's failure to provide IHCBS violates their right to medically necessary treatment under Title XIX of the Social Security Act, 42 U.S.C.A. Section 1396a ("Medicaid Act"), and, further, violates their right to treatment in the least restrictive setting under Title II of the Americans With Disabilities Act, 42 U.S.C. Section 12132, et seq. ("ADA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. Section 701 ("RA"). The Plaintiffs filed their original class action complaint on Nov. 7, 2019. Based on the foregoing allegations, the Plaintiffs contend that Defendants have violated the Medicaid Act's EPSDT Services provisions discussed, and the Medicaid Act's requirement that all ESPDT Services be provided with "reasonable promptness," 42 U.S.C. Section 1396a(a)(8) (Counts I, II). They further contend that the Defendants' failure to provide IHCBS violates their right to mental health treatment in the most integrated setting appropriate, under the ADA and RA (Counts III, IV). The Plaintiffs seek certification of an injunction class under Federal Rule of Civil Procedure 23(a) and (b)(2); a declaration that Defendants have violated the Medicaid Act, the ADA, and the RA; and a permanent injunction requiring the Defendants to "establish and implement policies, procedures, and practices to ensure the provision of intensive home and community-based mental health services to the Plaintiffs and the Class in the most integrated setting appropriate to their needs." On Nov. 27, 2019, the Plaintiffs' filed their First Amended Complaint, adding Plaintiff F.F. On June 23, 2020, the Court granted in part the Defendants' Motion for More Definite Statement Pursuant to Rule 12(e), and ordered the Plaintiffs to supplement their First Amended Complaint to provide "additional information regarding specific discriminatory acts allegedly committed by the Defendants." Consistent with the Court's June 23 Order, the Plaintiffs filed the operative SAC on July 7, 2020. On July 21, 2020, Defendants filed their Answer to the Plaintiffs' SAC. On Sept. 28, 2020, the Plaintiffs' filed the instant Renewed Motion for Class Certification. They seek class certification to pursue claims on behalf of: "All Medicaid-eligible youth under the age of 21 in the State of Louisiana who are diagnosed with a mental illness or condition, not attributable to an intellectual or developmental disability, and who are eligible for, but not receiving, intensive home and community based (mental health) services." The Defendants oppose the Plaintiffs' Motion. Judge Jackson concludes that the Plaintiffs have demonstrated that the proposed class meets all requirements of Rule 23(a) and Rule 23(b)(2). Further, judicial economy is served by certification of the class. The evidence needed to prove the systemic failures and discriminatory impact of the Defendants' policies will be substantially the same for all putative class members. Class certification allows for both sides to conserve resources and efficiently resolve the factual and legal issues presented by the class. Accordingly, Judge Jackson grants the Plaintiffs' Renewed Motion For Class Certification. The class is defined as follows: All Medicaid-eligible youth under the age of 21 in the State of Louisiana (1) who have been diagnosed with a mental health or behavioral disorder, not attributable to an intellectual or developmental disability, and (2) for whom a licensed practitioner of the healing arts has recommended intensive home- and community-based services to correct or ameliorate their disorders. The Named Plaintiffs, by and through their legal representatives, are designated as the class representatives, and the Plaintiffs' counsel are designated as the class counsel. Pursuant to Rule 23(c)(2)(A), within 30 days of the date of the Order, the Plaintiffs will file a motion for approval of their proposed form of class notice and their notice program. If the Notice Motion is opposed by any party, that party will file a brief in opposition to the Notice Motion no later than 14 days after the filing of the Notice Motion. The matter is referred to the Magistrate Judge for entry of a Scheduling Order. A full-text copy of the Court's May 25, 2021 Ruling & Order is available at https://tinyurl.com/2r28v86w from Leagle.com. MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit ---------------------------------------------------------------- Microchip Technology Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 18, 2021, for the fiscal year ended March 31, 2021, that discovery is ongoing in the putative class action suit entitled, Jackson v. Microchip Technology Inc., et al., Case No. 2:18-cv-02914-JJT. Beginning on September 14, 2018, the Company and certain of its officers were named in two putative shareholder class action lawsuits filed in the United States District Court for the District of Arizona, captioned Jackson v. Microchip Technology Inc., et al., Case No. 2:18-cv-02914-ROS and Maknissian v. Microchip Technology Inc., et al., Case No. 2:18-cv-02924-JJT. On November 13, 2018, the Maknissian complaint was voluntarily dismissed. On December 11, 2018, the Court issued an order appointing the lead plaintiff in the Jackson matter. An amended complaint was filed on February 22, 2019. The complaint is allegedly brought on behalf of a putative class of purchasers of Microchip common stock between March 2, 2018 and August 9, 2018. The complaint asserts claims for alleged violations of the federal securities laws and alleges that the defendants issued materially false and misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects during the putative class period. The complaint seeks, among other things, compensatory damages and attorneys' fees and costs on behalf of the putative class. Defendants filed a motion to dismiss the amended complaint on April 1, 2019, which motion was granted in part and denied in part on March 11, 2020. Plaintiff filed a motion for class certification, which was granted by the Court. Discovery is ongoing. Microchip Technology Inc. develops and manufactures semiconductor products for various embedded control applications worldwide. The company, which was incorporated in 1989, is based in Chandler, Arizona. MIDDLE TENNESSEE: Form of Class Notice in Hawkins Suit Approved --------------------------------------------------------------- In the case, ALVIN HAWKINS, Plaintiff v. MIDDLE TENNESSEE PIZZA, INC., et al., Defendant, Case No. 3:21-cv-00266 (M.D. Tenn.), Judge Waverly D. Crenshaw, Jr., of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the parties' unopposed Motion to Approve Stipulated Form of Notice of Collective Action and to Stay Proceedings. Plaintiff Hawkins worked as a Middle Tennessee Pizza delivery driver. Middle Tennessee Pizza operates at least eleven Domino's Pizza locations in Tennessee. Hawkins filed the action on behalf of himself and similarly situated employees consisting of delivery drivers at the Middle Tennessee Pizza locations in Tennessee. He Plaintiff argues that the Defendant "repeatedly and willfully violated the Fair Labor Standards Act by failing to adequately reimburse delivery drivers for their delivery-related expenses," and accordingly "failing to pay them the legally mandated minimum wages for all hours worked." Hawkins brought the collective action against the Defendants on March 31, 2021, alleging that they violated the FLSA. On May 19, 2021, the parties brought the instant, unopposed Motion to conditionally certify and to stay the proceedings pending settlement. Analysis A. Conditional Certification The Defendant consents to an Order conditionally certifying this case as a collective action under the FLSA. Judge Crenshaw nonetheless notes that the Plaintiff has satisfied the low bar and met the "modest factual showing" required for the conditional certification stage. The Plaintiff alleges that the Defendants' stores require their delivery drivers to drive their personal cars to complete deliveries for them. He also alleges that the Defendants' stores failed to properly reimburse delivery drivers for their delivery-related expenses, and instead have adopted a policy of reimbursing drivers a routinely-evaluated per-mile rate based on store location and existing gas prices that is less than the IRS standard business mileage rate. He alleges that all delivery drivers at the Defendants' Domino's stores, including the Plaintiff, have been subject to the same or similar employment policies and practices. Accordingly, the Judge will grant conditional certification of a collective action by a class defined as all current and former delivery drivers employed by the Defendant's Domino's stores owned, operated, and controlled by the Defendants in the state of Tennessee from May 10, 2018 to the present. B. Notice, Method of Dissemination, and Opt-In Period The Plaintiff next asks the Court to approve the stipulated form of notice. The parties request the Court authorizes the Notice of Opportunity to Join Unpaid Wage Lawsuit. Having reviewed the notice, Judge Crenshaw finds it is timely, accurate, and informative. The stipulated notice clearly informs putative class members of their rights and how they can elect to participate in the action. The notice also adequately describes the legal claims, notes that the Defendant is defending against those claims, and references the legal effects of joining and not joining the suit. Accordingly, the Judge approves the notice. The parties desire to send the notice by email and U.S. mail "unless the notice is returned as undeliverable." In that case, the Plaintiff's counsel or a case management administrator, at the Plaintiff's expense, will process the name of the delivery driver through a Change of Address database, and will re-send the notice to any new address identified. Neither party objects to this form of notice. Accordingly, the Judge finds that such notice is appropriate in the case. The proposed notice suggests a 60-day opt-in period. As with dual notice, courts within the Sixth Circuit have routinely approved 60-day op-in periods. The Judge finds this opt-in period to be reasonable, especially in light of the case law and because neither party objects. Last, the parties request that the Court stay proceedings, including the Defendants' obligation to file an Answer, while they attempt to reach a settlement. Accordingly, the Judge will stay the proceedings. Conclusion For the foregoing reasons, Judge Crenshaw grants the parties' unopposed Motion to Approve Stipulated Form of Notice of Collective Action and to Stay Proceedings. Judge Crenshaw conditionally certifies the following collective action class: All current and former delivery drivers employed by Defendant's Domino's stores owned, operated, and controlled by Defendants in the state of Tennessee from May 10, 2018 to the present. The Judge approves the stipulated Form of Notice of Collective Action. The notice will be sent by regular mail and email in the form stipulated by the parties, and putative opt-in Plaintiffs will have 60 days from the date they receive notice to return the consent form to the Plaintiffs' counsel. The action is stayed pending the parties' settlement negotiations. As agreed by the parties, the parties will file a notice with the Court in the event settlement is not achieved to schedule a case management conference no later than 75 days after the close of the opt-in period. A full-text copy of the Court's May 24, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/2p763zwv from Leagle.com. MIJ INC: Conditional Certification of Class in Ford Suit Denied --------------------------------------------------------------- In the case, ROBERTA FORD, On Behalf of Herself and All Other Similarly Situated Individuals, Plaintiff v. MIJ, INC., d/b/a WIGGLES GENTLEMEN'S CLUB, Defendant, Cause No. 2:20-CV-353-HAB (N.D. Ind.), Judge Holly A. Brady of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, denied: (i) the Plaintiff's Motion for Conditional Certification of for Notice to Potential Plaintiffs and for Conditional Certification; and (ii) the Defendant's Motion to Strike Portions of Plaintiff's Sworn Declaration in Support of Plaintiff's Motion for Conditional Certification. According to the Plaintiff, the Defendant mischaracterized her and other strippers as independent contractors rather than employees. To right this alleged wrong, the Plaintiff has brought two causes of action: a collective action under the Fair Labor Standards Act ("FLSA"); and a class action asserting violations of Indiana statute. The Plaintiff worked as an exotic dancer at Wiggles Gentlemen's Club from 2006 through March 2019. From September 2017 through the end of her employment, at least 50 other women worked as exotic dancers at Wiggles. Because Wiggles characterized all exotic dancers as independent contractors, Wiggles paid these women no wages. Wiggles had the full right and authority to control and direct all aspects of the dancers' job duties. This included customer pricing for performances, scheduling, the promulgation of rules and policies, and discipline for violation of those rules and policies. Wiggles also had the sole discretion to hire and fire dancers. On Oct. 2, 2020, the Plaintiff filed her Class and Collective Action Complaint asserting claims on her own behalf and on behalf of all other similarly situated individuals under the FLSA and Indiana's wage payment statutes. She filed the instant motion for conditional certification of the FLSA collective action on Dec. 30, 2020. The motion has now been fully briefed. Judge Brady concedes that the Plaintiff has provided her own declaration in support of her motion. The Plaintiff's declaration, however, is little more than a less-detailed recitation of the allegations in her Complaint. It does not identify a single putative plaintiff other than herself. It makes broad allegations regarding the Defendant's treatment of other dancers without the slightest indication of how the Plaintiff came about this information. The Judge finds, as other courts have, that this kind of unsupported, under-oath regurgitation of the complaint is insufficient to carry the Plaintiff's burden. Perhaps the Plaintiff's allegations are supported by stacks of documents. It may be that she has evidence regarding how the Defendant treated other dancers. Dozens of other women may be waiting in the wings, each with stories like those of the Plaintiff. But none of those scenarios are before the Court. Instead, Judge Brady has little more than the vague, uncorroborated, conclusory statements of the Plaintiff that do little more than parrot the allegations in the Complaint. At this stage, then, conditional certification is inappropriate. For these reasons, Judge Brady denied the Plaintiff's Motion for Conditional Certification and the Defendant's Motion to Strike. A full-text copy of the Court's May 25, 2021 Opinion & Order is available at https://tinyurl.com/4sxyx34u from Leagle.com. MYMD PHARMACEUTICALS: Liu Putative Class Suit Dismissed ------------------------------------------------------- MyMD Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 18, 2021, for the quarterly period ended March 31, 2021, that the merger related suits including Danny Lui v. Akers Biosciences, Inc., et al., No. GLO-C-000006-21 (N.J. Super. Ct., Ch. Div.), a putative class action suit, has been dismissed. On April 16, 2021, pursuant to the previously announced Agreement and Plan of Merger and Reorganization, dated November 11, 2020 (the "Original Merger Agreement"), as amended by Amendment No. 1 thereto, dated March 16, 2021, by and among MyMD Pharmaceuticals, Inc., a New Jersey corporation previously known as Akers Biosciences, Inc., XYZ Merger Sub Inc., a Florida corporation and a wholly owned subsidiary of the Company ("Merger Sub"), and MyMD Pharmaceuticals (Florida), Inc., a Florida corporation previously known as MyMD Pharmaceuticals, Inc. ("MyMD Florida"), Merger Sub was merged with and into MyMD Florida, with MyMD Florida continuing after the merger as the surviving entity and a wholly owned subsidiary of the Company. Between January 22, 2021 and March 18, 2021, nine alleged Akers Biosciences, Inc. stockholders filed separate actions in the state and federal courts of New York, New Jersey, and Pennsylvania against Akers Biosciences, Inc. and the members of its board of directors, respectively captioned as follows: (i) Douglas McClain v. Akers Biosciences, Inc., et al., No. 650497/2021 (Sup. Ct., N.Y. Cty.); (ii) Owen Murphy v. Akers Biosciences, Inc., et al., No. 650545/2021 (Sup. Ct., N.Y. Cty.); (iii) Sue Gee Cheng v. Akers Biosciences, Inc., et al., No. 1:21-cv-01110 (S.D.N.Y.); (iv) Danny Lui v. Akers Biosciences, Inc., et al., No. GLO-C-000006-21 (N.J. Super. Ct., Ch. Div.); (v) Alan Misenheimer v. Akers Biosciences, Inc., et al., No. 1:21-cv-02310 (D.N.J.); (vi) Robert Wilhelm v. Akers Biosciences, Inc., et al., No. 1:21-cv-04616 (D.N.J.); (vii) Adam Franchi v. Akers Biosciences, Inc., et al., No. 1:21-cv-04696 (D.N.J.); (viii) Cody McBeath v. Akers Biosciences, Inc., et al., No. 2:21-cv-01151 (E.D. Pa.); and (ix) Ray Craven v. Akers Biosciences, Inc., et al., No. 1:21-cv-05762 (D.N.J.) (collectively, the "MYMD Merger Complaints"). The Lui action is styled as a putative class action brought on behalf of the plaintiff and other similarly situated stockholders, while the other eight actions are brought solely on behalf of the individual stockholders. The MYMD Merger Complaints generally assert that Akers Biosciences, Inc. and its board of directors failed to disclose allegedly material information in the joint proxy and consent solicitation statement/prospectus and seek an order enjoining or unwinding the consummation of the Merger Agreement and awarding damages. As reflected on page 61 of the Company's Amendment No. 1 to Form S-4, Registration No. 333-252181, filed on March 19, 2021, each of the nine MYMD Merger Complaints sought an order enjoining or unwinding consummation of the Merger Agreement on the basis of alleged material omissions in the Company's preliminary S-4 filed on January 15, 2021. The Amended S-4 contains, among other things, supplemental disclosures addressing these purported material omissions. Prior to the April 15, 2021 special meeting of Akers Biosciences, Inc.'s stockholders to approve the proposed merger, none of the plaintiffs sought to enjoin the transaction, which was approved at the special meeting. As of May 17, 2021, eight of the nine MYMD Merger Complaints have been voluntarily dismissed (the remaining pending case is Ray Craven v. Akers Biosciences, Inc., et al., No. 1:21-cv-05762 (D.N.J.)). The defendants believe that the claims asserted in the remaining MYMD Merger Complaint are without merit and intend to appropriately defend themselves against them. Accordingly, the Company does not expect that these claims will have a material adverse effect on its financial condition or results of operations. All legal fees incurred were expensed as and when incurred. MyMD Pharmaceuticals, Inc. is a developer of rapid health information technologies but since March 2020, have been primarily focused on the development of a vaccine candidate against SARS-CoV-2, a coronavirus currently causing a pandemic throughout the world ("COVID-19"). The company is based in Baltimore Maryland. NATIONS RECOVERY: Class Settlement in Esposito Wins Final Approval ------------------------------------------------------------------ In the case, BRUCE F. ESPOSITO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff v. NATIONS RECOVERY CENTER, INC., Defendant, Case No. 3:18-cv-02089 (VLB) (D. Conn.), Judge Vanessa L. Bryant of the U.S. District Court for the District of Connecticut granted the Plaintiff's request for final approval of class action settlement, attorneys' fees, and class representative fees. Before the Court is the Plaintiff's request for final approval of class action settlement, attorneys' fees, and class representative fees. The matter was initiated by a complaint filed on Dec. 20, 2018, by the named Plaintiff, Bruce F. Esposito, individually and on behalf of all other similarly situated. The Plaintiffs allege that Nations Recovery engaged in unauthorized collection activity by sending collection letters to Connecticut residents that improperly assessed post-judgment interest. By doing so, the Plaintiffs allege that Nations Recovery violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, et seq., in that the "natural consequence of" its activity was "to harass, oppress, or abuse any person in connection with the collection of a debt" in violation of 15 U.S.C. Section 1692d, its actions constituted "an attempt to collect an amount not authorized by agreement or permitted by law" in violation of 15 U.S.C. Section 1692f(1), and constituted an improper "statement that an amount certain is owing, which includes interest not awarded by a court or interest at a rate not awarded by a court," in violation of 15 U.S.C. Section 1692e(2)(A). The class action has been brought on behalf of all Connecticut residents from whom Defendant attempted to collect money with post-judgment interest allegedly improperly added to the amount owed. On June 26, 2020, the Court entered an order preliminarily approving the proposed settlement agreement, form, and manner of notice. It held a remote fairness hearing on Dec. 10, 2020. As of that date, no class member objected to the settlement or requested exclusion. The Defendant has objected to the request for attorneys' fees in certain respects but not the request for class representative fees. The class consists of 61 consumers in Connecticut from whom Defendant attempted to collect debts in the year before the filing of the class action complaint. Of the 61, there were 33 members that were unreachable. None of the members objected or opted out. There were 28 timely claim checks cashed and zero untimely claims. The Defendant agreed to establish a settlement fund of $10,000 for the class members which could be claimed by cashing the check sent to each member. The 28 class members that cashed their checks are therefore entitled to a payment of $357.14 each. Additionally, the Defendant has agreed that the named plaintiff, Bruce F. Esposito, is to receive $3,000 for a class representative fee. The Defendant has also agreed to assume the $3,194.89 in costs it incurred in settlement administration costs. Under the FDCPA, there is a statutory limit on the amount a successful class may recover. A successful class may recover damages up to the lesser of $500,000 or 1% of a Defendant's net worth. At the time of the settlement agreement, Defendant Nations Recovery had a net worth of approximately $1 million, making $10,000 in settlement funds available to the class. Analysis A. Class Certification As discussed in the Court's June 26, 2020 Order certifying the class, the numerosity, commonality, typicality, and adequacy of representation requirements of Federal Rule of Civil Procedure 23 for class certification were, and continue to be, met. In addition, it found, and continues to find, that a class action is the superior method for a fair and efficient adjudication of this controversy under Federal Rule of Civil Procedure 23(b)(3). In sum, nothing has changed since the Court certified the proposed class, including during the conduct of the December 2020 Fairness Hearing, that might call into question the Court's decision to certify the proposed class. The class remains certified. B. Settlement Agreement Judge Bryant holds that the settlement is more than fair. As noted, the settlement confers a substantial cash benefit upon the Class -- a relatively low number of class members will receive 1% of Defendant's net worth, the maximum permitted by federal statute. Experienced counsel, who negotiated at arm's length and possess all the relevant information, strongly recommend the settlement to the Court. Each side recognizes the risk of failure and the high costs attendant to continued litigation. The legal and factual difficulties that Plaintiff foresees with respect to liability and damages already have been described. Add to those predictable difficulties the unpredictability of a jury trial -- where witnesses or jurors could react in unforeseen ways -- and the tremendous benefit to the Class of the present settlement becomes even more apparent. Litigation risk, moreover, does not end with the trial. In the case, post-trial motions and appeals would not be unlikely. Where liability is highly contested, it is likely that any judgment entered would have been the subject of post-trial motions and appeals, further prolonging the litigation and reducing the value of any recovery. C. Attorneys' and Class Representative Fees As an initial matter, Judge Bryant holds that it appears to be good news that the Defendant contests the Plaintiff's application for attorneys' fees as it indicates that it is unlikely that the parties are colluding to settle the case to the detriment of the class. Additionally, the Defendant does not contest that the Plaintiff's attorneys' fee requests is in any way improper or unwarranted, but rather simply requests an approximately 10% reduction based on hourly rate and another 5% based on vague or block-billed entries. The Judge finds that an hourly rate of $450/hour for Attorney Faulkner is not unreasonable, especially given the extremely efficient and successful way in which Attorney Faulkner handled the case. As for Attorney Foster, the Judge finds that his requested $400/hour is reasonable given his 30 years' experience in complex litigation matters, his prior service as a Partner at Squire, Patton Boggs in New York where he billed out at $585/hour, and his excellent and successful work in the case. Since the Judge has found that (i) the requested hourly rates by Attorneys Faulkner and Foster and their staff to be reasonable; and (ii) the time spent by Attorneys Faulkner and Foster and their staff to be reasonable, the presumptively reasonable fee is appropriately set at $30,492.50 plus costs of $454.95, for a total of $30,947.45. Further, the Judge sees no reason why the presumptively reasonable fee should be further adjusted downward, apart from the paralegal clerical work previously noted. The Plaintiff submits a supplemental fee request seeking an award of $5,920 for work performed by Attorney Foster, but not Attorney Faulkner, in preparing a Reply to the Defendant's Opposition to Plaintiff's Motion for Attorneys' Fees, in preparing for and attending the Fairness Hearing conducted by the Court on December 10, 2020, and in preparing the supplemental fee application. The Defendant does not object to the time spent or the adequacy of the billing entries for Attorney Foster's time. Its only objection is to Attorney Foster's hourly rate of $400/hour. But, the Judge has already found Attorney Foster's hourly rate to be reasonable, and so grants the Plaintiff's Supplemental Motion for Attorneys' Fees. The Settlement Agreement also includes an award of $3,000 to the class representative in recognition of his efforts on behalf of the class. The requested award is consistent with the range of awards made in similar cases. Therefore, the Judge approves the $3,000 class representative fee for the named Plaintiff. Conclusion Judge Bryant finally approves the settlement as set forth in the Settlement Agreement as well as the requested attorneys' and class representative fees, minus the fees for paralegal clerical work. The total attorneys' fee award is $36,867.45, consisting of 29.25 hours for Attorney Faulkner at $450/hour = $13,162.50, 40.9 hours for Attorney Foster at $400/hour = $16,360, 9.7 hours for Law Clerk Kayla Tenore at $100/hour = $970, plus costs of $454.95, plus the supplemental fee award of $5920. For the foregoing reasons, the Plaintiff's motion for final approval is granted. The Clerk is directed to close the case. A full-text copy of the Court's May 25, 2021 Memorandum of Decision is available at https://tinyurl.com/2ppfmvhn from Leagle.com. NORDSON CORP: Settlement Reached in Ortiz Suit ---------------------------------------------- Nordson Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 28, 2021, for the quarterly period ended April 30, 2021, that the parties in a class action lawsuit initiated by a former employee named Ortiz have agreed to settle the dispute, subject to the execution of a written settlement agreement and court approval. On February 22, 2019, a former employee, Mr. Ortiz, filed a purported class action lawsuit in the San Diego County Superior Court, California, against Nordson Asymtek, Inc. and Nordson Corporation, alleging various violations of the California Labor Code. Plaintiff seeks, among other things, an unspecified amount for unpaid wages, actual, consequential and incidental losses, penalties, and attorneys' fees and costs. Following mediation in June 2020, the parties agreed to settle the lawsuit, subject to the execution of a written settlement agreement and court approval. If the settlement agreement is approved, the class action lawsuit will be resolved. Management believes, based on currently available information, that the ultimate outcome of the proceeding described above will not have a material adverse effect on the Company's financial condition or results of operations. No further updates were provided in the Company's SEC report. Nordson Corporation engineers, manufactures, and markets products and systems to dispense, apply, and control adhesives, coatings, polymers, sealants, biomaterials, and other fluids worldwide. Nordson Corporation was founded in 1935 and is headquartered in Westlake, Ohio. NORTONLIFELOCK INC: June 14 Trial Date on Securities Suit Vacated ----------------------------------------------------------------- NortonLifeLock, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 21, 2021, for the fiscal year ended April 2, 2021, that the Court vacated the June 14, 2021 trial date and the trial is now continued indefinitely. Securities class action lawsuits, which have since been consolidated, were filed in May 2018 against the company and certain of its former officers, in the U.S. District Court for the Northern District of California. The lead plaintiff's consolidated amended complaint alleged that, during a purported class period of May 11, 2017 to August 2, 2018, defendants made false and misleading statements in violation of Sections 10(b) and 20(a), and that certain individuals violated Section 20A, of the Securities Exchange Act. Defendants filed motions to dismiss, which the Court granted in an order dated June 14, 2019. Pursuant to that order, plaintiff filed a motion seeking leave to amend and a proposed first amended complaint on July 11, 2019. The Court granted the motion in part on October 2, 2019 and the first amended complaint was filed on October 11, 2019. The Court's order dismissed certain claims against certain of our former officers. Defendants filed answers on November 7, 2019. On April 20, 2021, to resolve an alleged conflict of interest raised with respect to the lead plaintiff and its counsel, the Court ordered a second Class Notice disclosing the circumstances of the alleged conflict and providing a further period for class members to opt out, which will conclude on July 2, 2021. The initial class opt out period closed on August 25, 2020. In an April 29, 2021 Order, the Court vacated the June 14, 2021 trial date and the trial is now continued indefinitely. A settlement conference has been set for May 24, 2021. NortonLifeLock, Inc. engages in the provision of security, storage, and systems management solutions. It operates through Enterprise Security and Consumer Digital Safety segments. The Consumer Digital Safety segment provides solutions to protect information, devices, networks and the identities of consumers. The company is based in Tempe, Arizona. NVIDIA CORP: Dismissal of Securities Class Suit Under Appeal ------------------------------------------------------------ NVIDIA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 26, 2021, for the quarterly period ended May 2, 2021, that the appeal in the in the putative class action suit entitled, In Re NVIDIA Corporation Securities Litigation, is pending. The plaintiffs in the putative securities class action lawsuit, captioned 4:18-cv-07669-HSG, initially filed on December 21, 2018 in the United States District Court for the Northern District of California, and titled In Re NVIDIA Corporation Securities Litigation, filed an amended complaint on May 13, 2020. The amended complaint asserted that NVIDIA and certain NVIDIA executives violated Section 10(b) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and SEC Rule 10b-5, by making materially false or misleading statements related to channel inventory and the impact of cryptocurrency mining on GPU demand between May 10, 2017 and November 14, 2018. Plaintiffs also alleged that the NVIDIA executives who they named as defendants violated Section 20(a) of the Exchange Act. Plaintiffs sought class certification, an award of unspecified compensatory damages, an award of reasonable costs and expenses, including attorneys' fees and expert fees, and further relief as the Court may deem just and proper. On March 2, 2021, the district court granted NVIDIA's motion to dismiss the complaint without leave to amend, entered judgment in favor of NVIDIA and closed the case. On March 30, 2021, plaintiffs filed a notice of appeal from judgment in the United States Court of Appeals for the Ninth Circuit, case number 21-15604. NVIDIA Corporation operates as a visual computing company worldwide. It operates in two segments, GPU and Tegra Processor. The company was founded in 1993 and is headquartered in Santa Clara, California. PAPA JOHN'S: Faces Suit Over Delivery Drivers' Improper Wage Pay ---------------------------------------------------------------- nvdaily.com reports that a federal judge approved a class-action lawsuit against a company that owns 22 Papa John's franchises. The lawsuit, filed in October in U.S. District Court in Harrisonburg by a former delivery driver in Staunton and Waynesboro, claims that drivers were not properly compensated by the pizza chain for using their personal vehicles. "Instead of reimbursing its delivery drivers for the reasonably approximate costs of the business use of their vehicles, defendant uses a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the delivery drivers' unreimbursed expenses cause their net wages to fall below the federal minimum wage during some or all workweeks," the lawsuit states. The lawsuit was filed by attorney Cary Powell Moseley on behalf of Michael Derek Compton against Winchester-based North Central Virginia Restaurants. The company owns nearly two dozen franchises in Maryland, Virginia and West Virginia. Attorneys in the case couldn't be reached for comment. The lawsuit states Compton worked for Papa John's from August 2019 through September 2020. His weighted hourly wage was about $7.75. The federal minimum wage is $7.25 an hour. The lawsuit states that Compton received $1.34 per delivery for reimbursement for vehicle use. An average delivery for Compton, according to the lawsuit, was about 6 miles, bringing the average reimbursement to $0.22 per mile. Compton, according to the lawsuit, averaged two deliveries per hour. At the IRS business mileage rate of roughly $0.57, the lawsuit claims Compton was under-reimbursed by $2.13 or more per delivery, effectively giving the difference to the company. "Thus, [Compton] consistently 'kicked back' to the defendant approximately $4.26 per hour ($2.13 per delivery x 2 deliveries per hour), for an effective hourly wage rate of about $3.49 ($7.75 - $4.26 per hour 'kick back') or less," the lawsuit says. The plaintiff asked for class-action filing because the lawsuit claims all drivers were reimbursed the same or in a similar manner. [GN] PELOTON INTERACTIVE: Kessler Topaz Reminds of June 28 Deadline -------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP reminds investors of Peloton Interactive, Inc. that a securities fraud class action lawsuit has been filed on behalf of those who purchased or acquired Peloton securities between September 11, 2020 and May 5, 2021, inclusive (the "Class Period"). Peloton provides interactive fitness products such as the Peloton Bike and the Peloton Tread+ and Tread, which include touchscreens that stream live and on-demand classes. Peloton also provides connected fitness subscriptions and access to all live and on-demand classes. Peloton launched the Tread+ treadmill in 2018. At that time, it was called the "Tread." Peloton renamed its signature treadmill in September 2020 to "Tread +." The Class Period commences on September 11, 2020, when Peloton filed its annual report on a Form 10-K for the year ended June 30, 2020. Throughout the Class Period, the defendants asserted that the safety and well-being of its customers was a priority. However, the truth was revealed on April 17, 2021, a day the market was closed, when the U.S. Consumer Product Safety Commission ("CPSC") issued a press release entitled "CPSC Warns Consumers: Stop Using the Peloton Tread+" alerting the public to dangers, including death, associated with the Peloton Tread+. In the press release, the CPSC warned "consumers about the danger of popular Peloton Tread+ exercise machine after multiple incidents of small children and a pet being injured beneath the machines. The [CPSC] has found that the public health and safety requires this notice to warn the public quickly of the hazard." The CPSC further stated that it "is aware of 39 incidents including one death. CPSC staff believes the Peloton Tread+ poses serious risks to children for abrasions, fractures, and death. In light of multiple reports of children becoming entrapped, pinned, and pulled under the rear roller of the product, CPSC urges consumers with children at home to stop using the product immediately." On April 18, 2021, a day the market was closed, John Foley, Peloton's Chief Executive Officer, wrote a letter that was emailed to Tread+ owners and published on Peloton's website stating that Peloton had "no intention" to stop selling or to recall the Tread+. Following this news, Peloton's stock price fell $16.28 per share, or more than 14%, over the next three trading days to close at $99.93 per share on April 21, 2021. Then, on Wednesday, May 5, 2021, Peloton announced voluntary recalls of both its Tread+ and Tread treadmill machines over safety concerns. Peloton also advised customers who have the products to immediately stop using them and contact Peloton for a full refund. Peloton's Chief Executive Officer, John Foley said in a statement, "I want to be clear, Peloton made a mistake in our initial response to the Consumer Product Safety Commission's request that we recall the Tread+." On this news, Peloton's stock price fell $14.08 per share, or 14%, to close at $82.62 per share on May 5, 2021. The complaint alleges that throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (1) in addition to the tragic death of a child, Peloton's Tread+ had caused a serious safety threat to children and pets as there were multiple incidents of injury to both; (2) safety was not a priority to Peloton as the defendants were aware of serious injuries and death resulting from the Tread+ yet did not recall or suggest a halt of the use of the Tread+; (3) as a result of the safety concerns, the CPSC declared the Tread+ posed a serious risk to public health and safety resulting in its urgent recommendation for consumers with small children to cease using the Tread+; (4) the CPSC also found a safety threat to Tread+ users if they lost their balance; and (5) as a result of the foregoing, the defendants' statements about Peloton's business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. Peloton investors may, no later than June 28, 2021, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check, LLP prosecutes class actiaons in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. [GN] PORCH GROUP: Former Employee's Suit v. HireAHelper Underway ----------------------------------------------------------- Porch Group, Inc said in its Form 10-K/A report filed with the U.S. Securities and Exchange Commission on May 19, 2021, for the fiscal year ended December 31, 2020, that HireAHelper(TM) continues to defend a putative class action suit initiated by its former employee. A former employee of HireAHelper(TM) filed a complaint in San Diego County Superior Court asserting putative class action claims for failure to pay overtime, failure to pay compensation at the time of separation and unfair business practices in violation of California law. HireAHelper(TM) was served with the complaint in December 2020 and on January 28, 2021 Defendants removed the case to the United States District Court for the Southern District of California. The plaintiff seeks to represent all current and former non-exempt employees of HireAHelper(TM) and Legacy Porch in the State of California during the relevant time period. This action is at an early stage in the litigation process. This action is at an early stage in the litigation process and Porch is unable to determine the likelihood of an unfavorable outcome, although it is reasonably possible that the outcome may be unfavorable. Porch is unable to provide an estimate of the range or amount of potential loss (if the outcome should be unfavorable), however the parties have agreed to explore resolution by way of a private non-binding mediation in the summer or fall of 2021. Porch intends to contest this case vigorously In addition, in the ordinary course of business, Porch and its subsidiaries are (or may become) parties to litigation involving property, personal injury, contract, intellectual property and other claims, as well as stockholder derivative actions, class action lawsuits and other matters. The amounts that may be recovered in such matters may be subject to insurance coverage. Porch said, "Although the results of legal proceedings and claims cannot be predicted with certainty, neither Porch nor any of its subsidiaries is currently a party to any legal proceedings the outcome of which, we believe, if determined adversely to us, would individually or in the aggregate have a material adverse effect on our business, financial condition or results of operations." Porch Group, Inc is a vertical software platform for the home, providing software and services to approximately 11,000 home services companies, such as home inspectors, moving companies, utility companies, home insurance, warranty companies, and others. The company is based in Seattle, Washington. PRECISION CASTPARTS: Judgment Issued on Murphy's Remaining Claims ----------------------------------------------------------------- In the case, KEVIN MURPHY, Individually and Behalf of All Others Similarly Situated, Plaintiff v. PRECISION CASTPARTS CORP., MARK DONEGAN, and SHAWN R. HAGEL, Defendants, Case No. 3:16-cv-00521-SB (D. Or.), Magistrate Judge Stacie F. Beckerman of the U.S. District Court for the District of Oregon grants the Defendants' motion for reconsideration, and enters summary judgment for the Defendants on all remaining counts. AMF Pensions forsakring AB and the Oklahoma Firefighters Pension and Retirement System ("Lead Plaintiffs") filed an Amended Class Action Complaint for Violation of the Federal Securities Laws on behalf of all persons or entities who purchased or otherwise acquired the publicly traded securities of Precision Castparts Corp. ("PCC") between May 9, 2013 and Jan. 15, 2015, seeking remedies under the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The Lead Plaintiffs allege that PCC, PCC's Chairman and CEO Mark Donegan, and PCC's Executive VP and CFO Shawn Hagel, violated Sections 10(b) and 20(a) of the Exchange Act and Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder. The Lead Plaintiffs allege that the Defendants made 44 statements during the Class Period that were materially false and misleading, primarily with respect to PCC's earnings guidance for Fiscal Year 2016 ("FY16"). Their theory of liability is that the Defendants always knew the FY16 earnings guidance was unattainable because their financial projections were based on unrealistic assumptions, and Defendants knew throughout the Class Period that PCC was failing to achieve the organic growth necessary to meet the target, in part because PCC's practice of pulling in sales to earlier quarters was unsustainable and a large customer was continuing to destock its inventory. The Lead Plaintiffs allege that the Defendants nevertheless made statements throughout the Class Period misrepresenting that PCC was achieving anticipated benchmarks en route to its FY16 target, which created an impression of a state of affairs materially different from the one that existed. The Lead Plaintiffs and Defendants filed cross motions for summary judgment pursuant to FED. R. CIV. P. 56. In its July 3, 2020 Opinion, the Court denied Lead Plaintiffs' motion for partial summary judgment, and granted in part and denied in part the Defendants' motion for summary judgment. The Court granted the Defendants' motion for summary judgment with respect to 26 of the alleged misstatements (entering summary judgment with respect to Statements 1-7, 10, 13-14, 16-17, 20-21, 27, 29-33, 35, 38, 40-41, and 43-44). However, the Court denied the motion with respect to 18 of the challenged statements (denying summary judgment with respect to Statements 8-9, 11-12, 15, 18-19, 22-26, 28, 34, 36-37, 39, and 42). On Oct. 5, 2020, the Court denied the Defendants' motion for reconsideration of the Court's July 3, 2020 Opinion. The Defendants now move the Court to reconsider its opinion in light of the Ninth Circuit's recent opinion in Wochos v. Tesla, Inc., 985 F.3d 1180 (9th Cir. 2021). They argue that the Ninth Circuit's Tesla opinion requires the Court to reconsider its July 3, 2020 Opinion with respect to its analysis of the PSLRA's Safe Harbor for forward-looking statements and the falsity element of Section 10(b) of the Exchange Act. In Tesla, the plaintiffs alleged that Tesla, its Chairman and Chief Executive Officer Elon Musk, and another officer misled the market about Tesla's progress in producing its Model 3 in 2017. The plaintiffs alleged that 15 of the defendants' public statements about Tesla's goal of manufacturing 5,000 vehicles per week by the end of 2017 were materially false and misleading because the defendants knew that the projected level of production was unattainable. The Ninth Circuit affirmed the district court's dismissal of the second amended complaint without leave to amend, holding that the plaintiffs "failed to plead sufficient facts to avoid the PSLRA's safe harbor or to establish falsity." Discussion A. Mr. Donegan's FY16 Target Statements Judge Beckerman agrees with the Defendants that Musk's non-actionable statements in Tesla (e.g., "it's coming in as expected"; "getting pretty close to the bull's-eye"; "there are no issues"; "preparations are progressing"; "we are on-track") are indistinguishable from Donegan's FY16 target statements in the instant case (e.g., "we're on that slope"; "we're pretty much on that drum beat"; "we hover around that line"; "the framework is all intact"; "nothing has gone negative"; "we've been able to stay on that continuum"; and "there is no change to the framework we laid out"). Specifically, although the Court previously held that the Safe Harbor does not protect Donegan's "on the line" statements because they contained facts about PCC's current circumstances, it is clear from the Ninth Circuit's reasoning in Tesla that Donegan's relatively generic statements do not include sufficiently "concrete descriptions" of present facts to fall outside the protection of the Safe Harbor. As in Tesla, where the plaintiffs alleged that Musk knew Tesla's announced target was close to impossible to attain but continued to make statements that Tesla was progressing toward the target, in the case, the Plaintiffs have presented evidence that suggests Donegan knew the announced target was close to impossible to attain but continued to make statements that PCC was progressing toward its target. In light of Tesla, the Defendants' statements that remain at issue here were not sufficiently concrete to qualify as "a concrete factual assertion about a specific present or past circumstances," nor specific enough for the Lead Plaintiffs to establish falsity. Accordingly, the Judge reconsiders the Court's prior opinion, and grants the Defendants' motion for summary judgment on the Lead Plaintiffs' remaining FY16 statements (Statements 11, 15, 22, 24, 26, 28, 34, 36, and 39; and Statement 19). B. Mr. Donegan's Other Statements The Defendants argue that the Court should enter summary judgment on all of the remaining statements that do not fall under the FY16 target category because the Lead Plaintiffs' loss causation evidence identified corrective disclosure events only with respect to alleged misrepresentations regarding the FY16 target. The Lead Plaintiffs appear to accept that they have not established loss causation with respect to these other statements. Judge Beckerman opines that Coffman's opinion established loss causation with respect to the Lead Plaintiffs' primary theory of liability on the FY16 target statements, but did not establish loss causation for the other challenged statements relating to destocking if those statements were to stand alone. Now that the Court has entered summary judgment with respect to the FY16 target statements, the Lead Plaintiffs have failed to establish loss causation with respect to any of the remaining statements. Accordingly, the Judge enters summary judgment for the Defendants with respect to all of the remaining statements at issue (Statements 8-9, 12, 18, 23, 25, 37, and 42). Disposition For the reasons she set forth, Judge Beckerman grants the Defendants' Motion for Reconsideration of the Court's July 3, 2020 Opinion and Order, reconsiders the Court's opinion in light of the Ninth Circuit's opinion in Tesla, and enters summary judgment for the Defendants on all of the Lead Plaintiffs' remaining claims. A full-text copy of the Court's May 24, 2021 Opinion & Order is available at https://tinyurl.com/yahyca5z from Leagle.com. PROJECT O.H.R.: Class Certification Order in Kurovskaya Affirmed ---------------------------------------------------------------- In the case, NATALYA KUROVSKAYA ET AL., Plaintiffs-Respondents v. PROJECT O.H.R. (OFFICE FOR HOMECARE REFERRAL), INC., Defendant-Appellant, Index No. 150480/16, Appeal No. 13908-13908A, Case Nos. 2020-04902, 2021-00285 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, First Department, affirmed the Dec. 2, 2020 order of the Supreme Court of New York County, which granted the Plaintiffs' motion for class certification and leave to amend the complaint. Judge Lynn R. Kotler of the Supreme Court of New York County entered on Dec. 2, 2020 an order, which, to the extent appealed from as limited by the briefs, granted the Plaintiffs' motion for class certification and leave to amend the complaint, unanimously affirmed, with costs. Same court and Justice entered on Jan. 14, 2021 an order which approved the form and publication of notice of the class action, unanimously dismissed, without costs, as abandoned. The Plaintiffs and the putative class members are former nonresidential home health aides and/or personal care assistants who worked for defendant in New York between Jan. 20, 2010 and the present. The Plaintiffs allege, inter alia, that the Defendant regularly underpaid the putative class members for time worked, as it paid the same rate for regular work and overtime. They also allege that they were paid flat "per diem" rates for 24-hour or "live-in" shifts, which compensated approximately 12 hours of work, even though they worked most of the 24-hour shifts and were given neither three one-hour meal breaks nor allowed eight hours of sleep with five hours uninterrupted. The Plaintiffs allege that the Defendant failed to maintain adequate records, compensate them for hours worked, and ensure that they received appropriate sleep facilities. The Appellate Division holds that the motion court properly found that the Plaintiffs submitted sufficient evidence to satisfy the requirements of CPLR 901. The Plaintiffs showed numerosity by providing evidence that at least 1,000 home health aides worked for defendant and that 25 different people attended each of the twice-yearly mandatory training sessions attended by them. They alo provided competent evidence to show that there were issues of law and fact common to the class that predominated over any individual member's issues. The Plaintiffs submitted sworn testimony from three former employees, the Defendant's policy manual, and paystubs to show that it did not provide different wage rates for regular work and overtime and that it did not have any system to ensure that home health aides received meal breaks and appropriate sleep benefits, despite the fact that it was only paying them for 12 hours out of a 24-hour shift. This evidence, according the Appellate Division, satisfies the minimum threshold of establishing that their claim is not a sham. Moreover, the Appellate Division finds that the claims of uniform systemwide wage violations are particularly appropriate for class certification. Both the named Plaintiffs submitted evidence to show that they were not paid proper wages by the Defendant due to its policies, and the motion court properly determined that these claims are typical of the claims of the proposed class. As this is a wage dispute and the cost of litigation would likely be prohibitive for individuals, given their individual damages, the court properly found that a class action was the superior vehicle for resolving these disputes. Finally, the CPLR 902 factors weigh in favor of class certification; there may be significant discovery and litigation required to prosecute the class action, but the burden on the litigants and the courts would be significantly increased if 1,000 potential individual lawsuits were pursued. Finally, the Appellate Division holds that the court properly granted the Plaintiffs leave to amend the complaint. The Living Wage Law (Administrative Code of City of NY Section 6-109) claim is based upon the same factual allegations as the Labor Law claims and is not futile on the face of the record. The Defendant has failed to show prejudice as a result of the proposed amendment, as discovery is ongoing. A full-text copy of the Court's May 25, 2021 Order is available at https://tinyurl.com/aypdbzym from Leagle.com. Peckar & Abramson, P.C., New York (Kevin J. O'Connor -- KOConnor@pecklaw.com -- of counsel), for appellant. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher -- llusher@vandallp.com -- of counsel), for respondents. PROVENTION BIO: Pomerantz Law Reminds of July 20 Deadline --------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Provention Bio, Inc. ("Provention" or the "Company") (NASDAQ: PRVB) and certain of its officers. The class action, filed in the United States District Court for the District of New Jersey, and docketed under 21-cv-11613, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Provention securities between November 2, 2020 and April 8, 2021, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Provention securities during the Class Period, you have until July 20, 2021 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. [Click https://bit.ly/2TJZOux for information about joining the class action] Provention is a clinical stage biopharmaceutical company that focuses on the development and commercialization of therapeutics and solutions to intercept and prevent immune-mediated diseases. The Company's product candidates include, among others, PRV-031 teplizumab and monoclonal antibodies, in Phase III clinical trial for the interception of type one diabetes ("T1D"). In November 2020, Provention completed the rolling submission of a Biologics License Application ("BLA") to the U.S. Food and Drug Administration ("FDA") for teplizumab for the delay or prevention of clinical T1D in at-risk individuals (the "teplizumab BLA"). The complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the teplizumab BLA was deficient in its submitted form and would require additional data to secure FDA approval; (ii) accordingly, the teplizumab BLA lacked the evidentiary support the Company had led investors to believe it possessed; (iii) the Company had thus overstated the teplizumab BLA's approval prospects and hence the commercialization timeline for teplizumab; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. On April 8, 2021, Provention issued a press release "announc[ing] that the Company received a notification on April 2, 2021 from the [FDA], stating that, as part of its ongoing review of the Company's [BLA] for teplizumab for the delay or prevention of clinical [T1D], the FDA has identified deficiencies that preclude discussion of labeling and post-marketing requirements/commitments at this time." On this news, Provention's stock price fell $1.73 per share, or 17.78%, to close at $8.00 per share on April 9, 2021. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 [GN] PURECYCLE TECHNOLOGIES: ClaimsFiler Reminds of July 12 Deadline --------------------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors of pending deadline in the following securities class action lawsuit: PureCycle Technologies, Inc. (PCT) f/k/a Roth CH Acquisition I Co. (ROCH) Class Period: 11/16/2020 - 5/5/2021 and/or were holders of Roth securities entitled to participate in the March 16, 2021 shareholder vote on the merger with PureCycle. Lead Plaintiff Motion Deadline: July 12, 2021 SECURITIES FRAUD, MISLEADING PROSPECTUS To learn more, visit https://www.claimsfiler.com/cases/view-purecycle-technologies-inc-common-stock-pct-securities-litigation If you wish to serve as a Lead Plaintiff in the class action, you must petition the Court on or before the Lead Plaintiff Motion deadline. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. At ClaimsFiler.com, investors can: (1) register for free to gain access to information and settlement websites for various securities class action cases so they can timely submit their own claims; (2) upload their portfolio transactional data to be notified about relevant securities cases in which they may have a financial interest; and (3) submit inquiries to the Kahn Swick & Foti, LLC law firm for free case evaluations. To learn more about ClaimsFiler, visit www.claimsfiler.com [GN] PURECYCLE TECHNOLOGIES: Theodore & Tennenbaum Suits Underway ------------------------------------------------------------ PureCycle Technologies, Inc. (PCT) said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 19, 2021, for the quarterly period ended March 31, 2021, that the company continues to defend two putative class action suits initiated by William C. Theodore and David Tennenbaum, respectively. Beginning on or about May 11, 2021, two putative class action complaints were filed against PCT, certain senior members of management and others, asserting violations of federal securities laws under Section 10(b) and Section 20(a) of the Exchange Act. The complaints generally allege that the applicable defendants made false and/or misleading statements in press releases and public filings regarding the Technology, PCT's business and PCT's prospects. The first putative class action complaint was filed in the U.S. District Court for the Middle District of Florida by William C. Theodore against PCT and certain senior members of management. The second putative class action complaint was filed in the U.S. District Court for the Middle District of Florida by David Tennenbaum against PCT, certain senior members of management and others. The plaintiffs in the Lawsuits seek to represent a class of investors who purchased or otherwise acquired PCT's securities between November 16, 2020 and May 5, 2021. The plaintiffs in the Tennenbaum Lawsuit also seek to represent a class of all holders of ROCH CH Acquisition I Co. securities entitled to participate in the March 16, 2021 shareholder vote on the Business Combination. The complaints seek certification of the alleged class and compensatory damages. The Theodore Lawsuit also seeks punitive damages. The complaints rely on information included in a research report published by Hindenburg Research LLC. PureCycle said, "The time for the applicable defendants to answer, move or otherwise respond has not yet been scheduled. PCT and the individual defendants constituting senior members of management intend to vigorously defend the Lawsuits. Given the stage of the litigation, PCT cannot reasonably estimate at this time whether there will be any loss, or if there is a loss, the possible range of loss, that may arise from the unresolved Lawsuits." PureCycle Technologies, Inc. provides recycling services. The Company develops patented recycling process which separates color, odor, and contaminants from plastic waste feedstock to transform it into ultra-pure recycled polypropylene. PureCycle Technologies serves customers worldwide. The company is based in Orlando, Florida. RITE AID: Loses Bid to Arbitrate Drug Pricing Class Action ---------------------------------------------------------- Brendan Pierson at Reuters reports that Rite Aid must face a proposed class action accusing it of fraudulently inflating the prescription drug prices it negotiated with insurance companies in court, a federal appeals court ruled, denying the pharmacy operator's bid to send the case to arbitration. A unanimous 9th U.S. Circuit Court of Appeals panel found that Rite Aid's arbitration agreements with the pharmacy benefit managers (PBMs) that negotiate prices between it and insurance companies do not bind health plan beneficiaries, like plaintiff Bryon Stafford, affirming a ruling by a lower court. Rite Aid and its attorney Stephanie Schuster of Morgan, Lewis & Bockius did not immediately respond to requests for comment. Nor did Andrew Love of Robbins Geller Rudman & Dowd, a lawyer for Stafford. Stafford sued Rite Aid in San Diego federal court in 2017, alleging that Rite Aid inflated the "usual and customary" prices of prescription drugs that it reported to PBMs. Usual and customary prices are used as the basis of the negotiations between pharmacies, PBMs and insurers that determine the rates insurers ultimately pay. Stafford said that Rite Aid's reported prices were higher than the prices it charged customers without insurance who paid in cash, which he said represented the true usual and customary prices. As a result, many health plan beneficiaries overpaid, since their share of prescription drug costs is based on the price paid by the insurer, Stafford said. He brought claims under California's Unfair Competition Law and Consumer Legal Remedies Act, as well as common law unjust enrichment and negligent misrepresentation, and sought to represent a nationwide class and California subclass of similarly situated people. Rite Aid moved to compel arbitration, arguing that Stafford's claims were intertwined with its contracts with PBMs, which contain arbitration clauses. It said equitable estoppel prevented Stafford from suing in court over claims arising from contracts with arbitration clauses. U.S. District Judge Anthony Battaglia denied the motion, finding the claims were independent of Rite Aid's contracts, and Rite Aid appealed. Circuit Judge Milan Smith, writing for the panel, agreed that Stafford's claims did not arise from Rite Aid's contracts with PBMs. "Even if the contracts contained no provision requiring Rite Aid to report the usual and customary price, the fact remains that Rite Aid did report that information and allegedly purposely inflated it," the judge wrote. "Rite Aid's duty not to commit fraud is independent from any contractual requirements with the pharmacy benefit managers." Smith was joined by Circuit Judges Sandra Ikuta and District Judge Kathryn Vratil of the District of Kansas, sitting by designation. The case is Stafford v. Rite Aid Corp, 9th U.S. Circuit Court of Appeals, No. 20-55333.[GN] ROCK 'N PLAY: Opposition to Class Certification Bid Due June 16 --------------------------------------------------------------- In the class action lawsuit re: ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION (MDL No. 1:19-md-2903), Case No. 1:19-cv-01107-GWC (W.D.N.Y.), the Hon. Judge Geofrrey W. Crawford entered an order as follows: 1. The Defendant's Motion to Compel Plaintiffs to Produce or Identify Specific Webpages Considered by Expert Colin Weir is denied. -- The court requires plaintiffs' counsel to confer with Mr. Weir and confirm that he does not have notes or an electronic record of the webpages he visited. Plaintiffs' counsel shall advise defendant of the expert's answer within 10 days. If there is a record of the webpages, it shall be provided within 10 days. In other respects, the motion is denied. 2. The Defendants' Motion to Compel re: Plaintiffs' production of documents. Not later than May 27, 2021, plaintiffs shall complete the production of baby photos, emails concerning the Rock 'N Play Sleeper, and other product information. The deposition of plaintiff Wray shall proceed on the agreed dates of May 27 and 28. 3. The Defendants' Opposition to Class Certification is due June 16, 2021. The parties will file a revised pre-trial schedule moving later dates out in a consistent manner. 4. The court grants the defendants' motion to file an over-sized brief (additional 25 pages). 5. The court will schedule a status conference around July 1, 2021 by video to discuss the timing of plaintiffs' reply, including expert depositions. A copy of the Court's order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/2Twmq1n at no extra charge.[CC] SANDERSON FARMS: Broiler Chicken Grower Litigations Underway ------------------------------------------------------------ Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 27, 2021, for the quarterly period ended March 31, 2021, that company continues to defend putative class suits related to the sharing data on compensation paid to broiler farmers, with the purpose and effect of suppressing the farmers' compensation below competitive levels. On January 27, 2017, Sanderson Farms, Inc. and its subsidiaries were named as defendants, along with four other poultry producers and certain of their affiliated companies, in a putative class action lawsuit filed in the United States District Court for the Eastern District of Oklahoma. On March 27, 2017, the Company was named as a defendant, along with four other poultry producers and certain of their affiliated companies, in a second putative class action lawsuit filed in the United States District Court for the Eastern District of Oklahoma. The Court ordered the suits consolidated into one proceeding, and on July 10, 2017, the plaintiffs filed a consolidated amended complaint. The consolidated amended complaint alleges that the defendants unlawfully conspired by sharing data on compensation paid to broiler farmers, with the purpose and effect of suppressing the farmers' compensation below competitive levels. The consolidated amended complaint also alleges that the defendants unlawfully conspired to not solicit or hire the broiler farmers who were providing services to other defendants. The consolidated amended complaint seeks treble damages, costs and attorneys' fees. On September 8, 2017, the defendants filed a motion to dismiss the amended complaint, on October 23, 2017, the plaintiffs filed their response, and on November 22, 2017, the defendants filed a reply. On January 19, 2018, the Court granted the Sanderson Farms defendants' motion to dismiss for lack of personal jurisdiction. On February 21, 2018, the plaintiffs filed a substantially similar lawsuit in the United States District Court for the Eastern District of North Carolina against the Company and another poultry producer. The plaintiffs subsequently moved to consolidate this action with the Eastern District of Oklahoma action in the Eastern District of Oklahoma for pretrial proceedings, with the defendants in support thereof. That motion was denied. On July 13, 2018, the defendants moved to dismiss the lawsuit in the Eastern District of North Carolina, and briefing was completed on September 4, 2018. On January 15, 2019, the Court granted in part the defendants' motion to dismiss by staying the action in the Eastern District of North Carolina under the first-to-file rule, pending resolution of the action in the Eastern District of Oklahoma. On January 6, 2020, the Court in the Eastern District of Oklahoma denied the remaining defendants' motion to dismiss. On January 27, 2020, plaintiffs in the Oklahoma case moved for leave to amend their complaint. The Court in the Eastern District of Oklahoma granted the plaintiffs' motion, and the plaintiffs filed a second amended consolidated complaint on February 21, 2020. On May 27, 2020, the Company moved to dismiss the action in the Eastern District of North Carolina under the first-to-file rule. Plaintiffs filed their opposition on June 17, 2020, and the Company filed its reply on July 1, 2020. On September 11, 2020, additional named grower plaintiffs filed an identical putative class action in the United States District Court for the District of Colorado against Sanderson Farms, Inc. and its Foods, Production, and Processing Divisions, as well as the other initial poultry producer defendants in the Oklahoma action. On October 14, 2020, defendants moved to dismiss the case under the first-to-file doctrine because it is substantively identical to the earlier-filed cases pending in Oklahoma and North Carolina. Briefing on that motion was completed on December 16, 2020. On September 18, 2020, another named grower plaintiff filed another duplicate class action in the United States District Court for the District of Kansas against the same defendants as the Colorado action. On October 13, 2020, defendants moved to dismiss the case under the first-to-file doctrine because it is substantively identical to the earlier-filed cases pending in Oklahoma, North Carolina, and Colorado. Briefing on that motion was completed on December 15, 2020. On October 8, 2020, new named grower plaintiffs filed another duplicate class action in the United States District Court for the Northern District of California against the same defendants as the Colorado and Kansas actions. The Company waived service of the complaint on December 11, 2020. On October 23, 2020, the District Court of Kansas stayed proceedings in that action (other than those related to the first-to-file motion) pending resolution of the first-to-file motion and the multi-district litigation ("MDL") consolidation motion. On November 12, 2020, the District Court of Colorado stayed proceedings in that action (other than those related to the first-to-file motion) pending resolution of the first-to-file motion and the MDL consolidation motion. On October 6, 2020, Plaintiffs in the Oklahoma action moved to consolidate all of these duplicative cases into a MDL before the judge presiding over the Oklahoma case. Briefing on that motion was completed on November 6, 2020, and oral argument on the motion occurred on December 3, 2020. On December 15, 2020, the panel ordered that all actions be consolidated in the Eastern District of Oklahoma for pretrial proceedings. The cases are consolidated as In re Broiler Chicken Grower Antitrust Litigation, No. 6:20-md-2977-RJS-CMR (E.D. Okla.). On February 12, 2021, the MDL Court held a status conference and entered a scheduling order for the MDL. On February 16, 2021, the first-to-file motions in the various actions described above were denied without prejudice. On February 19, 2021, Plaintiffs filed a consolidated amended complaint before the MDL Court. On March 31, 2021, the Company filed its answers to Plaintiffs' consolidated amended complaint. Discovery in the case is underway. Sanderson said, "We intend to defend these cases vigorously; however, the Company cannot predict the outcome of these actions. If the plaintiffs were to prevail, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANDERSON FARMS: Discovery in Antitrust Suit Ongoing ---------------------------------------------------- Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 27, 2021, for the quarterly period ended April 30, 2021, that discovery is ongoing in the class action lawsuit entitled, In re Broiler Chicken Antitrust Litigation. Between September 2, 2016 and October 13, 2016, Sanderson Farms, Inc. and our subsidiaries were named as defendants, along with thirteen other poultry producers and certain of their affiliated companies, in multiple putative class action lawsuits filed by direct and indirect purchasers of broiler chickens in the United States District Court for the Northern District of Illinois. The complaints allege that the defendants conspired to unlawfully fix, raise, maintain, and stabilize the price of broiler chickens, thereby violating federal and certain states' antitrust laws, and also allege certain related state-law claims. The complaints also allege that the defendants fraudulently concealed the alleged anticompetitive conduct in furtherance of the conspiracy. The complaints seek damages, including treble damages for the antitrust claims, injunctive relief, costs, and attorneys' fees. The Court has consolidated all of the direct purchaser complaints into one case, and the indirect purchaser complaints into two cases, one on behalf of commercial and institutional indirect purchaser plaintiffs and one on behalf of end-user consumer plaintiffs. The cases are part of a coordinated proceeding captioned In re Broiler Chicken Antitrust Litigation. On October 28, 2016, the direct and indirect purchaser plaintiffs filed consolidated, amended complaints, and on November 23, 2016, the direct and indirect purchaser plaintiffs filed second amended complaints. On December 16, 2016, the indirect purchaser plaintiffs separated into two cases. On that date, the commercial and institutional indirect purchaser plaintiffs filed a third amended complaint, and the end-user consumer plaintiffs filed an amended complaint. On January 27, 2017, the defendants filed motions to dismiss the amended complaints in all of the cases, and on November 20, 2017, the motions to dismiss were denied. On February 7, 2018, the direct purchaser plaintiffs filed their third amended complaint, adding three additional poultry producers as defendants. On February 12, 2018, the end-user consumer plaintiffs filed their second amended complaint, adding three additional poultry producers as defendants, along with Agri Stats, Inc. On February 20, 2018, the commercial and institutional indirect purchaser plaintiffs filed their fourth amended complaint. On November 13, 2018, the commercial and institutional indirect purchaser plaintiffs filed their fifth amended complaint, adding three additional poultry producers as defendants. On November 28, 2018, the end-user consumer plaintiffs filed their third amended complaint. On January 15, 2019, the direct purchaser plaintiffs filed their fourth amended complaint, and the commercial and institutional indirect purchaser plaintiffs filed their sixth amended complaint. Both the direct purchaser plaintiffs and the commercial and institutional indirect purchaser plaintiffs added two new poultry producers as defendants, as well as Agri Stats, Inc. On August 6, 2020, the end-user consumer plaintiffs filed a motion for leave to file a fifth amended complaint. The Court granted the end-user consumer plaintiffs' motion on September 22, 2020 and deemed the version of the complaint filed on August 7, 2020 operative on October 19, 2020. On October 23, 2020, the direct purchaser plaintiffs filed their fifth amended complaint and the commercial and institutional indirect purchaser plaintiffs filed their seventh amended complaint, both of which include bid-rigging allegations. Between December 8, 2017 and May 18, 2021, additional purported direct-purchaser entities individually brought seventy-three separate suits against twenty poultry producers, including the Company, as well as Agri Stats, Inc. and Utrecht-America Holdings, Inc. ("Rabobank") in the United States District Court for the Northern District of Illinois, the United States District Court for the District of Kansas, the United States District Court for the Western District of Arkansas, and the United States District Court for the District of Puerto Rico. These suits allege substantially similar claims to the direct purchaser class complaint described above; certain of the suits additionally allege related state-law and common-law claims, and related claims under federal and Georgia RICO statutes. In addition, certain direct action complaints filed since June 12, 2020 include allegations of federal bid rigging. Those suits filed in the Northern District of Illinois are now pending in front of the same judge as the putative class action lawsuits. On June 26, 2018, the defendants filed a motion to transfer the case filed in the District of Kansas to the Northern District of Illinois, and that motion was granted on September 13, 2018. On June 7, 2019, the plaintiffs filed a motion to transfer the case filed in the Western District of Arkansas to the Northern District of Illinois, and that motion was granted on June 11, 2019. On July 24, 2019, one of the defendants filed a motion to transfer the case filed in the District of Puerto Rico to the Northern District of Illinois, and that motion was granted on July 25, 2019. On July 22, 2019, the Company moved to dismiss in part those direct-purchaser complaints that allege claims under federal and Georgia RICO statutes against it. The motion was fully briefed on September 20, 2019, and the Court heard argument on the motion on December 18, 2019. On March 3, 2020, the Court denied the Company's motion. On October 18, 2019, defendants moved to dismiss the case filed by the Commonwealth of Puerto Rico on its behalf and on behalf of its citizens. The motion was fully briefed on January 21, 2020. On July 15, 2020, the Court dismissed Puerto Rico's claims on behalf of its citizens. On July 2, 2020 and August 6, 2020, certain defendants, including the Company, moved to exclude bid rigging allegations and claims from the consolidated In re Broiler Chicken Antitrust Litigation. Plaintiffs filed oppositions on August 6, 2020 and August 20, 2020. Defendants filed replies on August 20, 2020 and September 3, 2020. On September 22, 2020, the Court ordered that plaintiffs' bid-rigging allegations are bifurcated and any discovery on such claims is stayed until plaintiffs' supply reduction and Georgia Dock Index theories are resolved. On October 20, 2020, certain direct action plaintiffs filed a motion for leave to amend their complaints. On October 23, 2020, certain direct action plaintiffs filed a consolidated complaint. Defendants filed an opposition to certain direct action plaintiffs' motion to amend on November 4, 2020. Briefing was completed on November 16, 2020. The Court granted the motion to amend on January 6, 2021, and all direct action plaintiffs consolidated in the In re Broilers Chicken Antitrust Litigation before or on January 29, 2021 filed an amended consolidated complaint on January 29, 2021 incorporating those allegations. On October 30, 2020, direct purchaser plaintiffs, commercial and institutional indirect purchaser plaintiffs, and end-user consumer plaintiffs filed motions for class certification. Defendants filed their oppositions to class certification on January 22, 2021. Class plaintiffs filed replies in support of class certification on March 29, 2021. The parties are currently engaged in discovery. Fact discovery is scheduled to close on July 30, 2021, subject to limited extensions for certain direct action discovery. It is possible that additional individual actions will be filed. Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANDERSON FARMS: Discovery in La Fosse Putative Class Suit Ongoing ------------------------------------------------------------------ Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 27, 2021, for the quarterly period ended March 31, 2021, that discovery is ongoing in the putative class action suit entitled, La Fosse, et al. v. Sanderson Farms, Inc. On October 11, 2019, three named plaintiffs (Daniel Lentz, Pam La Fosse, and Marybeth Norman) filed, in the United States District Court for the Northern District of California, a nationwide class action against the Company on behalf of a putative class of all individuals and businesses throughout the United States who purchased one or more of the Company's chicken products in the prior four years. The lawsuit alleges that the named plaintiffs and other class members purchased the Company's chicken products based on misleading representations in the Company's advertising. Specifically, the plaintiffs in this case allege that the Company's advertising (including, but not limited to, on its website, television commercials, radio advertisements, social media, print magazines, billboards, and trucks) misleads consumers into believing that (i) the Company's chickens were not given antibiotics or other pharmaceuticals, (ii) the Company's chickens were raised in a "natural" environment, (iii) there is no evidence that the use of antibiotics or other pharmaceuticals in poultry contributes to the evolution of antibiotic-resistant bacteria, and (iv) the Company's chicken products do not contain antibiotic or pharmaceutical residues. Plaintiffs allege that (i) the Company "routinely" feeds antibiotics and pharmaceuticals to its chickens, (ii) the Company raises its chickens indoors in "unnatural" indoor conditions amounting to "intensive confinement" and without natural light (iii) there is "extensive" reliable evidence that the use of antibiotics in poultry contributes to antibiotic-resistant bacteria, and (iv) the Company's chickens have been found to contain antibiotic and pharmaceutical residue. The original complaint asserted five causes of action under California and North Carolina law. The plaintiffs sought injunctive relief directing the Company to correct its practices and to comply with consumer protection laws nationwide. The plaintiffs also sought monetary damages, as well as fees and costs. On December 20, 2019, the Company filed a motion to dismiss. On February 10, 2020, the Court granted the motion to dismiss in part, denied it in part, and granted the plaintiffs leave to amend the complaint. On March 23, 2020, two of the three original plaintiffs (Pam La Fosse and Marybeth Norman) filed a first amended complaint in which they were joined by five additional named plaintiffs purporting to assert claims on behalf of a putative nationwide class of consumers and businesses who purchased the Company's chicken products in the prior four years. The core allegations and theories set forth in the first amended complaint are the same as in the original complaint. The first amended complaint asserted one cause of action under federal law and sixteen causes of action under the laws of various states. The plaintiffs again sought injunctive relief directing the Company to correct its practices and to comply with consumer protection laws nationwide, as well as monetary damages, fees and costs. On May 6, 2020, the Company filed a partial motion to dismiss the first amended complaint, which the Court granted on July 2, 2020 with leave to amend. On July 23, 2020, plaintiffs Pam La Fosse and Sharon Manier filed a second amended complaint on behalf of a putative class of consumers who purchased the Company's chicken in California in the prior four years. Like the earlier iterations of the complaint, the second amended complaint alleges that the remaining plaintiffs and other class members purchased the Company's chicken products based on misleading representations in the Company's advertising, including for the reasons set forth in their prior complaints. The plaintiffs again seek injunctive relief, monetary damages, fees and costs. On August 6, 2020, the Company moved to dismiss the second amended complaint in part, requesting dismissal of plaintiffs' new implied warranty of merchantability claim. On August 20, 2020, plaintiffs voluntarily agreed to withdraw their new implied warranty claim. Discovery commenced in October 2020 and is ongoing. Sanderson said, "We intend to defend this case vigorously; however, the Company cannot predict the outcome of this action. If the plaintiffs were to prevail, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANDERSON FARMS: Discovery Ongoing in Jien Putative Class Suit -------------------------------------------------------------- Sanderson Farms, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 27, 2021, for the quarterly period ended March 31, 2021, that discovery is ongoing in the consolidated putative class action suit entitled, Judy Jien v. Perdue Farms, Inc., et al. On August 30, 2019, Sanderson Farms, Inc. and its Foods and Processing Divisions, as well as seventeen other poultry producers and their affiliates; Agri Stats, Inc.; and Webber, Meng, Sahl and Company, Inc. ("WMS"), were named in a putative class action filed in the United States District Court for the District of Maryland. Three other nearly identical putative class action complaints, each seeking to represent the same putative class, also were filed. The complaints, brought on behalf of non-supervisory production and maintenance employees at broiler chicken processing plants, alleged that the defendants unlawfully conspired by agreeing to fix and depress the compensation paid to them, including hourly wages and compensation benefits, from January 1, 2009 to the present. Plaintiffs claim that broiler producers shared competitively sensitive wage and benefits compensation information in three ways: (1) attending in-person meetings in Destin, Florida; (2) receiving Agri Stats reports, as well as surveys taken and published by WMS; and (3) directly exchanging wage and benefits information with plant managers at other defendant broiler producers. Plaintiffs allege that this conduct violated the Sherman Antitrust Act. On November 12, 2019, the Court ordered that the four putative class action complaints would be consolidated for all pretrial purposes. The Court ordered plaintiffs to file their consolidated complaint on or before November 14, 2019. Defendants' motions to dismiss the consolidated complaint were filed on November 22, 2019. Briefing was scheduled to be completed on or before February 28, 2020; however, after the defendants filed their motions to dismiss, on November 26, 2019, plaintiffs notified defendants that they intended to file an amended consolidated complaint. Plaintiffs filed an amended consolidated complaint on December 20, 2019. Plaintiffs named as defendants Sanderson Farms, Inc. and its Foods and Processing Divisions, as well as ten other broiler chicken producers and their affiliates; three turkey producers and their affiliates; Agri Stats, Inc.; and WMS. Plaintiffs brought their amended consolidated complaint on behalf of employees at broiler chicken and turkey processing plants and allege that the defendants unlawfully conspired by agreeing to fix and depress the compensation paid to them. On January 9, 2020 and January 27, 2020, the Court approved the voluntary dismissal without prejudice of two of the three nearly identical putative class action lawsuits. On March 12, 2020, the Court approved the voluntary dismissal without prejudice of the third nearly identical putative class action lawsuit. On March 2, 2020, defendants moved to dismiss the amended consolidated complaint. The Company also filed an individual motion to dismiss plaintiffs' claims against the Company. Plaintiffs filed their omnibus opposition to defendants' motions to dismiss on July 17, 2020. Defendants filed their reply briefs on August 13, 2020. On September 16, 2020, the Court granted in part and denied in part defendants' motion without prejudice, finding that plaintiffs' allegations against certain corporate defendant families, including the Company, were deficient. Plaintiffs filed a second amended consolidated complaint against the Company on November 2, 2020. The Company filed a renewed motion to dismiss resisting plaintiffs' amended allegations on December 18, 2020. The Court denied that motion on March 10, 2021. Discovery in the case is underway. Sanderson said, "We intend to defend this case vigorously; however, the Company cannot predict the outcome of these actions. If the plaintiffs were to prevail, the Company could be liable for damages, which could have a material, adverse effect on our financial position and results of operations." Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SCWORX CORP: Bid to Nix Suit Over COVID-19 Rapid Test Kits Pending ------------------------------------------------------------------ SCWorx Corp. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on May 19, 2021, for the fiscal year ended December 31, 2020, that the motion to dismiss the consolidated class action suit related to the company's April 13, 2020 press release with respect to the sale of COVID-19 rapid test kits, is pending. On April 29, 2020, a securities class action case was filed in the United States District Court for the Southern District of New York against the company and its CEO. The action is captioned Daniel Yannes, individually and on behalf of all others similarly situated, Plaintiff vs. SCWorx Corp. and Marc S. Schessel, Defendants. On May 27, 2020, a second securities class was filed in the United States District Court for the Southern District of New York against the company and its CEO. The action is captioned Caitlin Leeburn, individually and on behalf of all others similarly situated, Plaintiff v. SCWorx Corp. and Marc S. Schessel, Defendants. On June 23, 2020, a third securities class was filed in the United States District Court for the Southern District of New York against us and our CEO. The action is captioned Jonathan Charles Leonard, individually and on behalf of all others similarly situated, Plaintiff v. SCWorx Corp. and Marc S. Schessel, Defendants. All three lawsuits allege that the company and its CEO mislead investors in connection with its April 13, 2020 press release with respect to the sale of COVID-19 rapid test kits. The plaintiffs in these actions are seeking unspecified monetary damages. These three class actions were consolidated on September 18, 2020 and Daniel Yannes was designated lead plaintiff. A consolidated Amended Complaint was filed on October 19, 2020. The Defendants filed a motion to dismiss the CAC on November 18, 2020, and the briefing on that motion was complete on January 8, 2021. SCWorx said, "We are still awaiting a ruling on the motion, and we intend to continue vigorously defending against this lawsuit." SCWorx Corp. provides software solutions for the management of health care providers' foundational business applications. The company is based in New York, New York. STEVENS INSTITUTE: Court Narrows Claims in Mitelberg Class Suit --------------------------------------------------------------- In the case, LEAH MITELBERG, individually and on behalf of all others similarly situated, Plaintiff v. STEVENS INSTITUTE OF TECHNOLOGY, Defendant, Civil Action No. 21-1043 (SDW) (MAH) (D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey granted in part and denied in part the Defendant's Motion to Dismiss Plaintiff Leah Mitelberg's Class Action Complaint. The class action is one of many similar cases throughout the U.S. involving a monetary dispute over the transition to virtual higher education during the COVID-19 pandemic. The Plaintiff was enrolled as an undergraduate in the cyber security program at Stevens Institute of Technology in Hoboken, New Jersey, when COVID-19 swept across the U.S. in early 2020. As a result, the Defendant switched to remote learning on March 11, 2020, which continued through the end of the Spring Semester. The Plaintiff's coursework in cyber security purportedly entails extensive in-person instruction, student presentations, peer collaboration, and access to university facilities such as laboratories. Accordingly, the Plaintiff maintains that the Defendant's virtual instruction was "subpar" because it deprived students of (i) collaborative and hands-on learning, (ii) in-person dialogue, feedback, critique, networking, and mentorship, (iii) access to materials and facilities such as laboratories, libraries, and study rooms, (iv) participation in extra-curricular activities, sports, and clubs, and (v) opportunities for social development and independence. Although the Defendant partially refunded students' housing costs following the suspension of in-person instruction, it did not refund the Plaintiff any portion of her Spring Semester tuition (approximately $31,671) or fees comprised of a General Services Fee ($710) and a Student Activity Fee ($230). The Plaintiff contends she contracted with Defendant for in-person instruction and access to services and facilities -- specifically by way of Defendant's 2020 Spring Semester Course Catalog, Course Scheduler, Academic Policies, and course syllabi —- and intends to recover a prorated portion of tuition and fees for the period in which virtual learning commenced. The Plaintiff seeks to represent a class of similarly situated individuals who remitted, but were never refunded, tuition and/or fees to Defendant for the 2020 Spring Semester, as well as a subclass of class members who live in New Jersey. After the Court dismissed a nearly identical case brought by the Plaintiff's parent for lack of standing -- Ilya Mitelberg v. Stevens Institute of Technology, No. 20-5748 (D.N.J. Jan. 22, 2021) -- the Plaintiff filed the instant lawsuit asserting claims for breach of contract (Count I), unjust enrichment (Count II), conversion (Count III), and money had and received (Count IV). The Defendant moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 29, 2021, and all briefs were timely filed. Discussion A. Count I: Breach of Contract As a preliminary matter, the Court must determine the appropriate standard to apply when faced with a breach of contract claim against an educational institution for its failure to render in-person learning. A recent decision in our District involving a nearly identical dispute against another New Jersey-based university provides apt guidance. Ordinarily, under New Jersey law, a breach of contract claim is established by showing: (1) a valid contract; (2) failed performance; and (3) causation between the alleged breach and the claimant's damages. However, New Jersey courts undertake a context-specific approach to breach of contract claims against universities because, typically, deference is afforded to academic institutions so that they can fulfill their educational responsibilities. Under traditional breach of contract principles, Judge Wigenton opines that the Plaintiff has plausibly alleged (i) a valid contract for access to general student services and activities, (ii) the Defendant breached its contractual obligations by failing to provide access to such services and activities, and (iii) a causal connection between the Defendant's breach and the Plaintiff's damages. She says, although the Plaintiff does not allege her fee payments were made under a written agreement, the Court may infer the existence of a contract. Thus, the Defendant's Motion to Dismiss Count I is granted with respect to the Plaintiff's tuition claim and denied as it applies to her request for fees. B. Count II: Unjust Enrichment Next, the Plaintiff brings a claim for unjust enrichment. Unjust enrichment is an equitable cause of action that imposes liability when a defendant received a benefit' and defendant's retention of that benefit without payment would be unjust. Unjust enrichment is resorted to when a claimant cannot establish the existence of an express or implied contract. Judge Wigenton finds no reason to deviate from this standard as it applies to the Plaintiff's unjust enrichment claim for tuition reimbursement. Thus, the Plaintiff's unjust enrichment claim is dismissed as it pertains to tuition. Notwithstanding the above, Count II for fees the Plaintiff paid to the Defendant survives. In the event a contract between the Plaintiff and the Defendant does not exist as it relates to the General Services Fee and Student Activity Fee, the Judge holds that the Plaintiff may pursue unjust enrichment as a quasi-contract theory. The Plaintiff plausibly alleges that the Defendant received the benefit of her fee payments and that retention of those payments would be unjust because Defendant did not render in-person services or activities from March 11, 2020 through the semester's end. Accordingly, the Defendant's Motion to Dismiss Count II for tuition reimbursement is granted and the same is denied with respect to fees. C. Count III: Conversion The Plaintiff raises a third count for conversion. Conversion is the 'unauthorized' exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's right. The Plaintiff alleges that she had an ownership right to the Defendant's in-person educational services which the Defendant intentionally interfered with when it transitioned to virtual learning. In addition, the Plaintiff's conversion claim can be interpreted to allege that the Defendant unlawfully retained her property in the form of paid tuition. Judge Wigenton applies the Beukas standard to Count III. The Plaintiff's conversion claim for tuition is dismissed, however, because Count III merely restates her claim for breach of contract. Accordingly, the Defendant's Motion to Dismiss Count III is granted. D. Count IV: Money Had and Received Lastly, the Plaintiff lodges a claim for money had and received. Because the elements to establish a claim for money had and received mirror unjust enrichment, Count IV is dismissed in its entirety for the same reasons articulated in Section III.B. Thus, the Defendant's Motion to Dismiss Count IV is granted Order For the reasons she set forth, Judge Wigenton granted in part and denied in part the Defendant's Motion to Dismiss. An appropriate order follows. A full-text copy of the Court's May 25, 2021 Opinion is available at https://tinyurl.com/4kj9dfdm from Leagle.com. SUNWORKS INC: Vieyra Putative Class Suit Dismissed -------------------------------------------------- Sunworks Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on May 21, 2021, that the putative class action suit entitled, Vieyra v. Cargile, et al., C.A. No. 2020-0882-MTZ, has been dismissed and the company agrees to pay $500,000 to Plaintiff's counsel for attorneys' fees and expenses in full satisfaction of the anticipated Fee and Expense Application. On August 10, 2020, Sunworks, Inc. entered into an Agreement and Plan of Merger with The Peck Company Holdings, Inc. and Peck Mercury, Inc., which contemplated the merger of Peck and the Company in an all-stock transaction. On October 15, 2020, the Company filed with the Securities and Exchange Commission a definitive proxy statement to solicit the votes of its stockholders to approve the Merger at a special stockholder meeting to be held on November 12, 2020. On October 12, 2020, Plaintiff Gustavo Vieyra, a stockholder of the Company, filed a putative class action lawsuit captioned Vieyra v. Cargile, et al., C.A. No. 2020-0882-MTZ and named as Defendants the members of the Company's Board of Directors. The complaint alleged, among other things, that the Board violated its fiduciary duties under Delaware law by failing to disclose purportedly material information regarding the proposed Merger. As relief, the complaint sought, among other things, an injunction against the Merger, damages and an award of attorneys' and experts' fees. Also on October 13, 2020, Plaintiff filed a motion for expedited proceedings and a motion for a preliminary injunction. Thereafter, Plaintiff conducted expedited discovery, including review of documents and conducting depositions. The Company and the other defendants have denied that they committed any violation of law or engaged in any of the wrongful acts that were or could have been alleged in the Action, and expressly maintain that they diligently and scrupulously complied with their fiduciary and other legal duties. After the complaint was filed and without admitting that the allegations in the complaint had any merit, the Company determined to supplement the Proxy Statement, including with projections prepared in connection with the Merger, to address the allegations in the Action in a Form 8-K, filed with the SEC on October 30, 2020 (the "Supplemental Disclosures"). On November 24, 2020, the Court approved a stipulation under which the Plaintiff voluntarily dismissed the Action. The Court retained jurisdiction solely for the purpose of adjudicating the anticipated application of Plaintiff's counsel for an award of attorneys' fees and reimbursement of expenses in connection with the Action (the "Fee and Expense Application"). Following negotiations, the Company, while denying any and all liability, and maintaining that the Proxy Statement already contained all material information required for stockholders to cast an informed vote regarding the Merger prior to the Supplemental Disclosures, decided it was in its and the stockholders' best interests to resolve the Plaintiff's counsel's anticipated Fee and Expense Application and avoid further litigation of the issue by agreeing to pay $500,000 to Plaintiff's counsel for attorneys' fees and expenses in full satisfaction of the anticipated Fee and Expense Application. The Court has not been asked to review, and will pass no judgment on, the payment of attorneys' fees and expenses or their reasonableness. Sunworks Inc. provides solar energy projects operations and development services. The Company offers project management, solar performance assessment, procurement, installation, and financing services. Sunworks serves residential, commercial, agricultural, and municipal sectors. The company is based in Roseville, California. TARGET CORP: Faces Class Action Lawsuit Over Tampered Gift Cards ---------------------------------------------------------------- Patrick Rehkamp at bizjournals.com reports that a group of roughly 30 individuals have filed a class action lawsuit against Target Corp., claiming the retailer sold compromised gift cards. The plaintiffs say Target sold Apple iTunes gift cards that were tampered with and cost customers to collectively lose millions of dollars, according to the complaint was filed in U.S. District Court in Minneapolis. "Target knew that scammers would enter its stores, remove the security tape from gift cards, log each card's secret 16-digit activation code . . . . and use the activation code to remove customer funds after the customer loaded money onto the gift cards," according to the complaint. "Consumers have lost millions of dollars that they loaded onto the gift cards because Target failed to take adequate and reasonable measures to ensure that scammers did not tamper with the gift cards and failed to disclose to its customers the material fact that it was possible that the gift cards had been tampered with." Target refused to replenish the balance on plaintiffs' gift cards or refund the money, according to the complaint. The plaintiffs also say Target refused to properly warn customers about the issue and the retailer did not have adequate security to safeguard against data breaches. Representatives of Minneapolis-based Target (NYSE: TGT) could not be reached for comment. The plaintiffs say it's likely tens of thousands of customers were impacted by the alleged issue. The total amount lost exceeds $5 million, according to the complaint. The lawsuit has an example of plaintiff and California resident Shukai Chen, who bought multiple iTunes gift cards and loaded $1,000 in total on them. Chen went to use one of the cards and found it was already drained by an unknown third party, according to the complaint. [GN] TELIGENT INC: Continues to Defend Econazole Antitrust Litigation ----------------------------------------------------------------- Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 24, 2021, for the quarterly period ended March 31, 2021, that the company continues to defend antitrust litigation related to the pricing of econazole nitrate pharmaceutical products. To date, thirteen putative class action antitrust lawsuits have been filed against the Company along with co-defendants, including Taro Pharmaceuticals U.S.A., Inc. and Perrigo New York Inc., regarding the pricing of generic pharmaceuticals, including econazole nitrate. The class plaintiffs seek to represent nationwide or state classes consisting of persons who directly purchased, indirectly purchased, paid and/or reimbursed patients for the purchase of generic pharmaceuticals from as early as July 1, 2009 until the time the defendants' allegedly unlawful conduct ceased or will cease. The class plaintiffs seek treble damages for alleged overcharges during the alleged period of conspiracy, and certain of the class plaintiffs also seek injunctive relief against the defendants. The actions have been consolidated by the Judicial Panel on Multidistrict Litigation to the U.S. District Court, Eastern District of Pennsylvania for pre-trial proceedings as part of the In re Generic Pharmaceuticals Pricing Antitrust Litigation matter. On October 16, 2018 the court dismissed the class plaintiffs' claims against the Company with leave to replead. On December 21, 2018 the class plaintiffs filed amended complaints, which the Company moved to dismiss on February 21, 2019. On December 19, 2019 certain class plaintiffs filed a further complaint that included additional claims against the Company based on the Company's sales of fluocinolone acetonide. On October 16, 2020 and October 21, 2020, class plaintiffs amended or moved to amend their complaints to add additional allegations, mooting the motion to dismiss. No further updates were provided in the Company's SEC report. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada --------------------------------------------------------------- Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 24, 2021, for the quarterly period ended March 31, 2021, that the company and its Canadian subsidiary, Teligent Canada, are defendants in a putative class action suit related to alleged generic drug price-fixing. In addition, on June 3, 2020, a putative class action lawsuit was filed in the Federal Court of Canada against the Company and its Canadian subsidiary, Teligent Canada, along with over fifty other pharmaceutical defendant companies. The Canadian lawsuit alleges that the generic drug manufacturer defendants conspired to allocate the Canadian market and customers, fix prices and maintain the supply of generic drugs in Canada to artificially maintain market share and higher generic drug prices in violation of Canada's Competition Act. In terms of the Company and Teligent Canada, without limiting the general allegation of a general conspiracy over the generic drug market, the lawsuit specifically asserts allegations in relation to econzaole dating back to September 2013 and continuing to the present. The representative individual plaintiff seeks to represent a class comprised of all persons and entities in Canada who, from January 1, 2012 to the present, purchased generic drugs in the private sector (i.e. purchases made by individuals out-of-pocket and by individuals and businesses through private drug plans). The plaintiff is alleging aggregate damages of CDN$2.75 billion for harm caused to class members being charged increased prices as a result of the alleged conspiracy. The Canadian lawsuit is at a very early stage and the Company is unable to form a judgment at this time as to whether an unfavorable outcome is probable or remote or to provide an estimate of the amount or range of potential loss. The Company believes this lawsuit is without merit and it intends to vigorously defend against the claim. No further updates were provided in the Company's SEC report. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. TELIGENT INC: Settlement Reached in Okla. Police Pension Fund Suit ------------------------------------------------------------------ Teligent, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 24, 2021, for the quarterly period ended March 31, 2021, that a settlement has been reached in the class action suit initiated by Oklahoma Police Pension Fund and Retirement System. On April 15, 2019 a federal class action was filed the Oklahoma Police Pension Fund and Retirement System against the Company and certain individual defendants in the U.S. District Court, Southern District of New York. The lawsuit was brought on behalf of persons or entities who purchased or otherwise acquired publicly-traded Teligent, Inc. securities from March 7, 2017 through November 6, 2017. The complaint alleges that defendants made false or misleading statements regarding the Company's business, operational, and compliance policies in violation of U.S. securities laws. The plaintiff seeks to recover compensable damages. On June 17, 2020, the court, deeming pre-motion letters as a motion to dismiss, granted in part and denied in part the Company's motion to dismiss. On Wednesday, May 5, 2021, the parties reached a settlement in principal to resolve this dispute and no additional accrual was required to be recognized, as the company had satisfied its self-insurance retention. Teligent, Inc., a specialty generic pharmaceutical company, develops, manufactures, markets, and sells generic topical, branded generic, and generic injectable pharmaceutical products in the United States and Canada. The company was formerly known as IGI Laboratories, Inc. and changed its name to Teligent, Inc. in October 2015. Teligent, Inc. was founded in 1977 and is based in Buena, New Jersey. THERMON GROUP: Settlement Reached in THS Heating Elements Suit -------------------------------------------------------------- Thermon Group Holdings, Inc. said in its Form 10-K/A report filed with the U.S. Securities and Exchange Commission on May 27, 2021, for the fiscal year ended March 31, 2021, that a settlement has been reached in the purported class action suit related to certain heating elements previously manufactured by Thermon Heating Systems, Inc. (THS). In January 2020, the Company received service of process in a class action application in the Superior Court of Quebec, Montreal, Canada related to certain heating elements previously manufactured by THS and incorporated into certain portable construction heaters sold by certain manufacturers. The Company believes this claim is without merit and intends to vigorously defend itself against the claim. While the Company continues to dispute the allegations, in March 2021, it reached an agreement in principle with the plaintiff and other defendants to resolve this matter without admitting to any liability; such agreement remains subject to the agreement of the parties on the terms of a definitive settlement agreement. Settlement of this matter on the agreed terms will require the Company to contribute an amount that would not have a material impact on the Company's consolidated financial position, results of operations or cash flows. The settlement is subject to, among other things, approval by the Superior Court. Thermon Group Holdings, Inc. provides highly engineered thermal solutions (heating cables, tubing bundles and control systems) and services (design optimization, engineering, installation and maintenance services) required to deliver comprehensive solutions to complex projects. UNION INSURANCE: Deer Mountain Class Suit Dismissed With Prejudice ------------------------------------------------------------------ In the case, DEER MOUNTAIN INN LLC, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. UNION INSURANCE COMPANY, Defendant, Case No. 1:20-cv-0984 (BKS/DJS) (N.D.N.Y.), Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York granted the Defendant's motion to dismiss the Plaintiff's complaint. Plaintiff Deer Mountain Inn, on behalf of itself and a putative multi-state class and New York sub-class of similarly situated businesses, brings the action against the Defendant seeking damages and declaratory relief in connection with the Defendant's denial of insurance coverage for certain of the Plaintiff's business losses associated with the COVID-19 pandemic. The Plaintiff operates the Deer Mountain Inn, a country inn and restaurant located in Tannersville, New York. Like many businesses in New York and across the country, the Plaintiff has been impacted by the global pandemic caused by COVID-19, a highly contagious coronavirus that was discovered in China in December 2019 and has since spread across the world, infecting millions of people in the U.S. and globally. In order to curb the spread of COVID-19 through human-to-human and surface-to-human transmission, civil authorities around the country have issued orders temporarily closing or restricting the operations of a broad range of businesses The Plaintiff's complaint does not describe or attach the specific closure orders that impacted its own business in New York. However, in connection with its motion, the Defendant submitted copies of Executive Order No. 202.8 issued by New York Governor Andrew Cuomo on March 20, 2020, with accompanying guidance published on the New York State government's website. The Plaintiff has not contested the accuracy of these documents, nor has it pointed to any other specific Closure Orders that allegedly caused its losses. As relevant to the Plaintiff, the New York Closure Order requires "all businesses and not-for-profit entities in the state" to "reduce the in-person workforce at any work locations by 100%," but specifically exempts "any essential business or entity providing essential services or functions" from this requirement. The guidance on the state website specifically defines "essential business" to include "restaurants and bars (but only for take-out/delivery)," as well as "hotels, and places of accommodation." Thus, on its face, the New York Closure Order allowed the Plaintiff's hotel business to remain open and permitted its restaurant business to operate take-out and delivery services at its premises, but forbade it from offering in-person dining. At the time of the New York Closure Order, the Plaintiff was insured by Policy Number CPA 5100237-16 issued by the Defendant for the policy period of June 6, 2019 through June 6, 2020. The Policy, which is a "standard form that is used by the Defendant for all insureds having applicable coverage," is an "'all-risk' commercial property policy which covers loss or damage to the covered premises resulting from all risks other than those expressly excluded." The Plaintiff alleges that the Policy (as well as similar policies Defendant has issued to other businesses in New York and around the country) provides coverage for business losses incurred as a result of the Closure Orders, including those issued in New York. Plaintiff claims coverage under the Policy's business income insurance provision ("Business Income Provision"), which provides, in relevant part: "We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your operations during the period of restoration. The suspension must be caused by direct physical loss of or damage to property at premises which are described in the Declarations and for which Business Income Limit of Insurance is shown in the Declarations. The loss or damage must be caused by or result from of a Covered Cause of Loss." The Plaintiff alleges that the Defendant "does not intend to cover losses caused by the Closure Orders as part of" the Policy, and that the Defendant has denied similar claims by other Class members across-the-board, a practice which is belied by not only the express terms of the insurance policies, but also by: (a) the Small Business Administration's requirement that reimbursement from business interruption insurance be submitted along with an application for an Economic Injury Disaster Loan]; and (b) America's Small Business Development Center, whose COVID-19 newsletter expressly states, Business interruption insurance also applies if government actions cause operations to cease temporarily, which results in a loss for a firm. On behalf of itself and a putative multi-state class and New York sub-class of other businesses insured by the Defendant, the Plaintiff brings anticipatory breach of contract claims seeking damages for Defendant's denial of coverage under the Business Income Provision (Count II), the Extra Expense Provision (Count IV), and the Civil Authority Provision (Count VI) The Plaintiff also brings claims for declaratory relief with respect to each of those provisions (Counts I, III and V), asking the Court to issue declarations that that: a. The Plaintiffs' and the other Class Members' Business Income losses incurred in connection with the Closure Orders and the necessary interruption of their businesses stemming from those Orders are insured losses under their Policies; b. The Defendant is obligated to pay the Plaintiffs and other Class Members for the full amount of the Business Income losses incurred and to be incurred in connection with the Closure Orders during the period of restoration and the necessary interruption of their businesses stemming from those Orders; c. The Plaintiffs' and other Class Members' Extra Expense losses incurred in connection with the Closure Orders and the necessary interruption of their businesses stemming from those Orders are insured losses under their Policies; d. The Defendant is obligated to pay the Plaintiff and the other Class Members for the full amount of the Extra Expense losses incurred and to be incurred in connection with the covered losses related to the Closure Orders during the period of restoration and the necessary interruption of their businesses stemming from those Orders; e. The Plaintiffs' and the other Class Members' Civil Authority losses incurred in connection with the Closure Orders are insured losses under their Policies; and f. The Defendant is obligated to pay the Plaintiff and the other Class members the full amount of the Civil Authority losses incurred and to be incurred in connection with the covered losses related to the Closure Orders and the necessary interruption of their businesses stemming from those Orders. Presently before the Court is the Defendant's motion to dismiss the Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). The Plaintiff has opposed the Defendant's motion, and the Defendant has replied. Both parties have also filed multiple notices of supplemental authority in support of their respective positions. The Court heard oral argument on the motion on May 24, 2021. Analysis A. Business Income and Extra Expense Coverage The Defendant argues that the Plaintiff's claims under the Business Income and Extra Expense Provisions must be dismissed because the Plaintiff has not plausibly alleged any "direct physical loss of or damage to property" at its premises, as required to trigger both types of coverage. The Plaintiff argues that the loss it suffered -- the interruption of its business operations as a result of the Closure Orders, which deprived it of the ability to use its property for its intended purpose -- is the type of "direct physical loss of property" contemplated by the Policy. Judge Sannes holds that the Policy's Business Income and Extra Expense Provisions use the precise language that courts applying New York law have consistently held unambiguously does not cover mere "loss of use" that is unconnected to any physical damage, alteration or compromise to the insured property. The qualifiers "direct" and "physical" make clear that the "loss of property" contemplated by the Policy is restricted to losses that are direct and physical in nature, and does not include "forced closure of the premises for reasons exogenous to the premises themselves, or the adverse business consequences that flow from such closure." Moreover, as in the foregoing cases, the Policy as a whole supports this interpretation. Because the Judge finds that the Policy's Business Income and Extra Expense Provisions unambiguously do not provide coverage for the losses the Plaintiff complains of, and that the Defendant's denial of such coverage therefore does not constitute a breach of the Policy, the Plaintiff's claims for declaratory relief (Counts I and III) and anticipatory breach of contract (Counts II and IV) under these provisions must be dismissed. B. Civil Authority Coverage The Defendant also argues that the Plaintiff's claims under the Civil Authority Provision must be dismissed because the Plaintiff has not plausibly alleged any of the "core elements" required to trigger coverage under that provision, namely that: (1) an action of a civil authority "prohibits access" to the insured premises; (2) the action of that civil authority was issued as a result of "damage" to property not more than one mile from the insured premises caused by a Covered Cause of Loss (which, as noted previously, the Policy defines as a "direct physical loss"); and (3) the action of the civil authority was "taken in response to dangerous physical conditions resulting from the damage or continuation of the Covered Cause of Loss that caused the damage, or to enable a civil authority to have unimpeded access to the damaged property." The Plaintiff does not meaningfully respond to the Defendant's substantive arguments, other than to state that, "putting aside that it would be improper on a Rule 12(b)(6) motion to find as a matter of law that no business in the proximity of the Plaintiff's business suffered a physical loss of or damage to their properties, if the Closure Orders caused physical loss of the Plaintiff's property, they likewise caused physical loss to property in the vicinity of its property." Moreover, at oral argument, the Plaintiff's counsel appeared to abandon the Plaintiff's argument that its losses are covered by the Civil Authority Provision, conceding that the New York Closure Order it was subject to did not "prohibit access" to its property, as required to trigger coverage. Judge Sannes finds that the Plaintiff's complaint refers in general terms to "stay-at-home" and "shelter-in-place" orders issued by civil authorities nationwide that have "suspended or severely curtail[ed] business operations of non-essential businesses," including by "closing restaurants and bars for services other than take-out and delivery," and alleges that "as a result of the Closure Orders the Plaintiff's business had to cease operations." But the Plaintiff fails to point to any specific Closure Order that forced it to shut down its business or curtail its activities, much less allege that the relevant Closure Order met the particular requirements for coverage under the Civil Authority Provision. For this reason alone, the Judge holds that the Plaintiff's complaint falls far short of stating a claim for coverage under the Civil Authority Provision. Even if the Judge were to consider the New York Closure Order -- which is the only Closure Order the parties discuss in their briefing or present any record evidence of -- that order alone would not provide a basis for coverage under the Civil Authority Provision. By its plain terms, the New York Closure Order allowed the Plaintiff's operations to remain open for hotel, take-out and delivery services, while specifically exempting those services from the capacity reduction requirements applied to businesses deemed "non-essential." Because the Judge finds that the Policy's Civil Authority Provision unambiguously does not provide coverage for the losses Plaintiff complains of, and that the Defendant's denial of such coverage therefore does not constitute a breach of the Policy, Plaintiff's claims for declaratory relief (Count V) and anticipatory breach of contract (Counts VI) under this provision must be dismissed. C. Exclusions The parties also present arguments as to whether, assuming the losses the Plaintiff complains of are insured under the Policy, coverage is nonetheless barred by the Policy's Virus Exclusion or other exclusions in the Policy. These exclusions only apply if entitlement to coverage under one of the Policy's provisions is first established, and therefore, because Judge Sannes concludes that the Plaintiff fails to establish entitlement to coverage under the Policy, she need not reach the question of whether these various exclusions would apply. D. Dismissal of Plaintiff's Complaint with Prejudice Because Judge Sannes has found that all of the Plaintiff's individual claims for damages and declaratory relief must be dismissed, the Plaintiff's class claims must be dismissed as well. Therefore, the Plaintiff's complaint must be dismissed in its entirety. The Plaintiff has not requested leave to amend its complaint. In any event, the Judge finds that any amendment would be futile, as based on the Policy's plain language and the legal principles reviewed throughout the Decision, the Policy unambiguously does not cover the Plaintiff's losses, and it does not appear that the Plaintiff could plead any set of facts that would give rise to a plausible claim for the relief it seeks. Therefore, the Judge dismisses the Plaintiff's complaint with prejudice. Conclusion For these reasons, Judge Sannes granted the Defendant's motion to dismiss the Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b). She dismissed the Plaintiff's complaint with prejudice in its entirety. A full-text copy of the Court's May 24, 2021 Memorandum-Decision & Order is available at https://tinyurl.com/2r4nvy4w from Leagle.com. James E. Cecchi -- JCecchi@carellabyrne.com -- Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., in Roseland, New Jersey. Christopher A. Seeger -- cseeger@seegerweiss.com -- Stephen A. Weiss -- sweiss@seegerweiss.com -- Seeger Weiss LLP, in Ridgefield Park, New Jersey. Samuel H. Rudman -- srudman@rgrdlaw.com -- Mark S. Reich -- mreich@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, in Melville, New York. Paul J. Geller -- PGeller@rgrdlaw.com -- Stuart A. Davidson -- SDavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, in Boca Raton, Florida, For Plaintiff. Antonia B. Ianniello, Lisa M. Southerland -- lsoutherland@steptoe.com -- Steptoe & Johnson LLP, in Washington, D.C. Jonathan M. Bernstein -- jbernstein@goldbergsegalla.co -- Goldberg Segalla LLP, in Albany, New York, For Defendant. UNITED SERVICES: Court Upholds Substitution of Elter as Class Rep. ------------------------------------------------------------------ In the case, JARRON ELTER, individually, and as the representative of ALL PERSONS similarly situated, Respondent(s), v. UNITED SERVICES AUTOMOBILE ASSOCIATION, USAA CASUALTY INSURANCE COMPANY, USAA GENERAL INDEMNITY COMPANY, and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Petitioners, Case No. 53196-8-II (Wash. App.), the Court of Appeals of Washington, Division Two, holds that the trial court did not err by substituting Plaintiff Elter as the class representative and that the class was properly certified under CR 23. The case involves the measure of loss of use benefits payable for property damage to insured vehicles under the uninsured/underinsured motorist coverage of auto insurance policies issued by United Services Automobile Association, USAA Casualty Insurance Company, USAA General Indemnity Company, and Garrison Property and Casualty Insurance Company (collectively USAA). David and Marissa Turk filed a class action lawsuit against USAA, claiming that USAA had breached its insurance policies regarding the payment of loss of use benefits, and the trial court certified the class. In November 2013, Marissa Turk was rear-ended by an uninsured driver, causing her to rear-end the vehicle in front of her. At the time of the accident, Marissa had automobile insurance through USAA, which included uninsured/underinsured motorist (UIM) coverage. USAA's policy provided coverage for property damage caused by a UIM driver and for loss of use during the period of repair. T Marissa was without the use of her vehicle while her vehicle was being repaired. In 2014, the Turks filed a class action lawsuit against USAA for breach of contract based on USAA's failure to pay loss of use damages under its UIM coverage. In May 2016, the Turks moved for certification of a class to include: All USAA insureds with Washington policies issued in Washington State, where USAA determined the loss to be covered under the MM coverage, and their vehicle suffered a loss requiring repair, or the vehicle was totaled, during which time they were without the use of their vehicle, for a clay or more. After the Court of Appeals reversed the class certification because the Turks were not proper class representatives, the trial court entered an order substituting Jarron Elter as class representative and left the original certification order intact. USAA appeals, claiming that the substitution was improper and that the class was improperly certified under CR 23. Analysis The Court of Appeals addresses as a threshold issue: Whether the March 15, 2019 order substituting the class representative was proper under CR 23. If the trial court did not err in substituting Mr. Elter, the Court of Appeals will address whether the class was properly certified under CR 23. I. Substitution of Class Representative USAA argues that the trial court erred by simply substituting Elter as the new representative for the old representative without requiring the Plaintiffs to file an amended complaint. It claims that the substitution of the named Plaintiff is permissible only if the class has already been certified and that the substitution was improper here because we vacated the previous class certification. The Court of Appeals disagrees. It opines that the trial court was required to take the substantive allegations in the complaint as true, including the allegations in Elter's declaration filed in support of the motion for substitution. Thus, it properly relied on Elter's declaration and the allegations in the complaint to determine whether Elter was an appropriate class representative. USAA also argues that substitution of the class representative cannot occur until the class is certified. But the unpublished opinions that USAA cites do not support such a rule. For these reasons, the Court of Appeals holds that the trial court's order granting substitution of Elter as the class representative was proper and it did not err. II. Damages for Loss of Use At that time, the Plaintiffs requested certification based on the test for loss of use damages stated in Straka Trucking, Inc. v. Estate of Peterson, 98 Wn.App. 209, 211, 989 P.2d 1181 (1999), not the inconvenience test in Holmes v. Raffo, 60 Wn.2d 421, 431, 374 P.2d 536 (1962). The trial court adopted the Straka loss of use standard, under which loss of use may be measured by (1) lost profits, (2) the cost of renting a substitute vehicle, (3) the rental value of the plaintiff's car, or (4) interest. The court ruled that evidence of the value of a rental car is one method of measuring loss of use. The parties dispute the applicable measure for loss of use damages. USAA argues that the trial court erred by adopting the Straka test for the measure of damages rather than the Holmes test. Elter argues that the court correctly applied the Straka test for loss of use damages and that the Holmes test for damages is consistent with Straka. The Court of Appeals finds that the court in Holmes made it clear that the cost of renting a substitute vehicle was not the measure of loss of use damages. Instead, the measure is the amount that will compensate the plaintiff for the inconvenience of not having an automobile. However, it is significant that under Holmes, evidence of the cost of a rental vehicle is admissible at trial and is sufficient for the jury to award loss of use damages. The Court of Appeals also finds that Straka is not necessarily inconsistent with Holmes. It did not contradict the statement in Holmes that "proof of what it reasonably would have cost to hire a substitute automobile is sufficient evidence to carry this item of damages to the jury." In other words, Straka stated that one method of proving loss of use damages is evidence of the cost of a rental, but it did not state that this was the sole method. On remand, the Court of Appeals directs the trial court to rely on Holmes for determining the proper measure of damages for loss of use. But applying Holmes also means recognizing that evidence regarding the costs of a rental automobile is relevant and admissible to prove loss of use damages. III. Class Certification Under CR 23 USAA claims that class certification is improper because under Holmes, there would need to be testimony from each class member and damages would vary from insured to insured. It argues that the commonality, predominance, and superiority requirements in CR 23 were not satisfied.2 The Court of Appeals disagrees. It holds that the Plaintiffs have demonstrated that the class members share common issues of law and fact. Accordingly, the trial court did not en" by finding commonality was met. In addition, the difference in the amount of loss of use damages owed to the individuals does not defeat the point that USAA did not pay its insureds loss of use damages. The Plaintiff class members have demonstrated that common issues predominate over individual issues. Accordingly, the trial court did not err by finding that the predominance requirement was met. Lastly, the trial court also considered the CR23(b)(3) factors and determined that the class was as potentially small as 6,000 people or as large as 11,000 people, and that a class action was a fair and efficient adjudication of the action, superior to conducting individualized inquiries. On this record, the Court of Appeals holds that the trial court did not err by finding that the superiority requirement was met. Conclusion The Court of Appeals holds that the trial court did not err by substituting Elter as the class representative and that the class was properly certified under CR 23. It also clarifies the proper standard for the measurement of loss of use damages. Thus, it remands for further proceedings consistent with its opinion. Nothing in the decision prevents the trial court from revisiting various CR 23 requirements in the future, including typicality or other requirements of Elter as a class representative, if further factual developments warrant reconsideration. A full-text copy of the Court's May 25, 2021 Opinion is available at https://tinyurl.com/c9ut83bp from Leagle.com. Michael A. Moore -- mmoore@corrcronin.com -- Corr Cronin LLP, at 1001 4th Ave., Ste. 3900, in Seattle, Washington 98154-1051; Jay Williams -- jwilliams@schiffhardin.com -- Schiff Hardin LLP, at 233 S Wacker Drive, Suite 6600, in Chicago, Illinois 60606; Victoria Elizabeth Ainsworth -- tainsworth@corrcronin.com -- Corr Cronin LLP, at 1001 4th Ave., Ste. 3900, in Seattle, Washington 98154-1051, Counsel for Petitioner(s). Stephen Michael Hansen -- info@stephenmhansenlaw.com -- Law Offices of Stephen M Hansen PS, at 1821 Dock St., Unit 103, in Tacoma, Washington 98402-3201; Scott Nealey, at 71 Stevenson Street #400, in San Francisco, California 94105, Counsel for Respondent(s). UNITED STATES: Class Certified in Scott FTCA Suit v. BOP's MDC -------------------------------------------------------------- In the case, DAVID SCOTT, JEREMY CERDA, OSMAN AK, MERUDH PATEL, GREGORY HARDY, and LARRY WILLIAMS, individually and on behalf of all others similarly situated, Plaintiffs v. FORMER WARDEN HERMAN E. QUAY, FACILITIES MANAGER JOHN MAFFEO, and THE UNITED STATES OF AMERICA, Defendants, Case No. 19-cv-1075 (ERK) (PK) (E.D.N.Y.), Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York granted the Plaintiffs' motion to certify a class pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs brought the Federal Tort Claims Act (FTCA) action for negligence on behalf of a putative class of persons incarcerated at the Bureau of Prisons' (BOP) Metropolitan Detention Center (MDC) facility in Brooklyn during a power outage. The complaint alleged that on Jan. 27, 2019, during a period of severe winter weather, the West Building at the MDC lost power because of an electrical fire. MDC staff were unable to restore power until Feb. 3, 2019, a week later. As a result of the power outage, those held in the West Building were allegedly subjected to inhumane conditions that posed unreasonable and substantial risks to their health and safety, which the complaint referred to as the "Conditions Crisis." The Plaintiffs allege that After the power outage, MDC staff "ordered a lockdown of everyone in their cells." West Building residents spent the Conditions Crisis "immersed in complete darkness." All the Plaintiffs endured "frigid temperatures." They were deprived of hot food during the Conditions Crisis. The Plaintiffs also lacked access to hot water for cleaning, bathing, and laundry. The MDC staff also restricted communication and visitation with family and counsel and failed to communicate with West Building residents. And, the power outage further disrupted access to medical care. The Plaintiffs now move to certify a class pursuant to Federal Rule of Civil Procedure 23. They seek to certify a class "consisting of all those people who were confined in the Metropolitan Detention Center's West Building from January 27, 2019 until February 3, 2019, and who have or will in the future have satisfied the exhaustion requirement imposed by the FTCA." Putative class representatives David Scott and Jeremy Cerda, as well as Plaintiffs Osman Ak, Merudh Patel, Gregory Hardy, and Larry Williams, were incarcerated in the West Building when the power went out. The Plaintiffs support their motion to certify a class with declarations and two documents incorporated by reference: A report from the Office of the Inspector General within the Department of Justice and congressional testimony by the Executive Director of the Federal Defenders of New York, David E. Patton. Taken together, the evidence paints a harrowing picture of prison conditions in the wake of the fire and power outage. In particular, the evidence describes a series of inhumane and potentially dangerous conditions that affected residents throughout the West Building during the week without power. Judge Korman concludes that the Plaintiffs have demonstrated that the proposed class is ascertainable and complies with the Rule 23(a) prerequisites. They have also shown compliance with the requirements to maintain a class pursuant to Rule 23(b)(3). Therefore, the Judge granted the Plaintiffs' motion to certify a class pursuant to Federal Rule of Civil Procedure 23. Accordingly, a class consisting of "all those people who were confined in the Metropolitan Detention Center's West Building from January 27, 2019 until February 3, 2019, and who have or will in the future have satisfied the exhaustion requirement imposed by 28 U.S.C. Section 2675," is certified. The Plaintiffs' counsel is appointed the class counsel in light of the work they have already done on the case, as well as their experience, knowledge, and resources. A full-text copy of the Court's May 25, 2021 Memorandum & Order is available at https://tinyurl.com/5xxt2ehy from Leagle.com. UNIVERSITY OF IOWA HOSPITALS: Judge Allows Workers to Join Suit --------------------------------------------------------------- Kelly Gooch at beckershospitalreview.com reports that a federal judge has ruled that a lawsuit alleging Iowa City-based University of Iowa Hospitals and Clinics failed to pay wages and overtime in a timely manner should have class-action status for two more groups, The Gazette reported May 20. U.S. District Judge Stephanie Rose in Iowa certified two classes. The classes include union members and blue-collar workers who were not paid until more than a dozen days after their pay period ended, according to the report. They have worked for the health system since 2017, the year the employee union lost collective bargaining rights. The judge also certified class status for union and blue-collar workers who have worked for the health system since 2017, and were since terminated and have not received certain accrued or unused accumulated benefits by what would have been the next regular day on which they got paid, according to the report. Certification of the two classes came after the judge had already certified a class of University of Iowa Hospitals and Clinics workers alleging the health system did not pay wage adjustments for overtime work in a timely fashion. In a statement shared with Becker's, University of Iowa hospital officials said they made payroll changes in the last year, including making staff nurse and select professional classifications "nonexempt" positions to comply with the federal Fair Labor Standards Act. "This change resulted in a transition to four-week work schedules, as opposed to the previously available six-week work schedule, which assisted in the alignment of schedules to payroll dates," the health system said. "UI Health Care also transitioned to a biweekly payment period for employees eligible to receive overtime and other pay adjustments. These changes have helped UI Health Care better align its pay practices with other healthcare providers across the country." The lawsuit was originally filed in August 2019 by two nurses and a physical therapist. It accuses University of Iowa Hospitals and Clinics of not paying wage adjustments for overtime until one to two months after the overtime had been worked. [GN] UNIVERSITY PHYSICIANS: Loses Bid to Dismiss Butterfield Class Suit ------------------------------------------------------------------ In the case, MICHELLE BUTTERFIELD, individually and on behalf of all others similarly situated, Plaintiff v. UNIVERSITY PHYSICIANS & SURGEONS, INC., d/b/a Marshall Health, Defendant, Civil Action No. 3:20-0759 (S.D.W. Va.), Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia, Huntington Division: (i) denies the Defendant's Motion to Dismiss; and (ii) denies as moot the Defendant's Motion to Stay Litigation Pending Decision Regarding Defendant's Motion to Dismiss. In the Complaint, the Plaintiff alleges that she was an employee of the Defendant as defined by the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 203(e)(1) and (g), from August 2016 to July 2020. She states that she and others similarly situated as her served as health care workers at the Defendant's health care facilities in West Virginia. The Plaintiff asserts that they were paid by the Defendant on an hourly and/or per diem basis. During her employment, the Plaintiff states that she and the other employees worked more than 40 hours per week without being paid one and one-half their regular rate as required by FLSA. She alleges that, during the summer of 2020, there were several occasions she reported overtime hours, but she was not provided overtime pay. The Plaintiff claims that the Defendant told her it could not afford to pay overtime. Therefore, the Plaintiff filed her action individually, and on behalf of all healthcare employees paid on an hourly and/or per diem basis who have been employed by the Defendants at any time since three years prior to the filing of the Complaint until the date of the final judgment in the matter. The Defendant seeks to dismiss the Complaint on two grounds. First, it argues the Complaint is insufficient to state a cause of action under Section 207 of FLSA. Second, the Defendant asserts the Complaint fails to allege sufficient facts identifying a putative class. In Hall v. DIRECTTV, LLC, 846 F.3d 757 (4th Cir. 2017), the Fourth Circuit considered how detailed claims under FLSA must be to avoid dismissal. In doing so, the Fourth Circuit rejected the notion that a plaintiff is required to approximate the number of uncompensated hours to survive a Rule 12(b)(6) motion. Instead, the Fourth Circuit adopted the more lenient approach taken by the First, Second, and Ninth Circuit Courts of Appeals, "requiring plaintiffs only to 'sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.'" Judge Chambers opines that although the Defendant argues that the allegations in the Plaintiff's Complaint are insufficient to show she has a plausible claim under FLSA, he disagrees. He notes that the Fourth Circuit has adopted the more liberal pleading standard. In her Complaint, the Plaintiff alleges that the Defendant permitted her to work over 40 hours per week. She further states that, during a limited and defined period during the summer of 2020, she reported overtime hours to Defendant for several pay periods that were in excess of forty hours. According to the Plaintiff, the Defendant refused to provide her the overtime pay, purportedly because it told her it could not afford it. These allegations, according to Judge Chambers, are more than the Plaintiff simply alleging she regularly worked more than 40 hours a week without receiving overtime pay. Instead, the Plaintiff has identified, as an example, a narrow timeframe in which she asserts she reported overtime hours, was not paid for those hours, and the Defendant excused its failure to pay her by claiming lack of funds. Assuming the truth of these allegations for purposes of a motion to dismiss, the Judge finds the Plaintiff has stated sufficient facts to nudge her "claim from conceivable to plausible." She easily finds the Defendant has fair notice of the Plaintiff's individual FLSA claim. Therefore, the Judge denies the Defendant's motion to dismiss this claim. The Defendant next argues that the Plaintiff has failed to sufficiently allege a collective action under FLSA. Although FLSA permits a plaintiff to maintain a class action on behalf of similarly situated employees, it asserts the Plaintiff's accusations with respect to the class are merely a formulaic recitation of the elements and the Plaintiff has no actual knowledge about wages paid to other employees. In response, the Plaintiff argues it is reasonable to infer that, if the Defendant told her it did not have enough funds to pay her overtime during the summer of 2020, it also could not pay other employees who worked overtime. She also alleged the nonpayment of overtime was pursuant to a policy of the Defendant. As the Court recently explained in Fain v. Crouch, No. 3:20-0740, 2021 WL 2004793 (S.D.W. Va. May 19, 2021), class certification "requires a 'rigorous' factual and legal analysis," making it "rare for a court to make a class determination at the pleadings stage." Therefore, "class allegations should be stricken only when it is clear from the face of the complaint that the plaintiff cannot and could not meet Fed. R. Civ. P. 23's requirements for certification." Although the Plaintiff in the case does not identify any other specific employees not paid overtime wages, that information, if true, rests in the hands of the Defendant and is a matter for discovery. Despite not having this very specific information from the outset, assuming the truth of the allegations the Plaintiff has made, the Judge finds the Plaintiff's allegations that the Defendant had a policy of not paying overtime, that the Defendant told the Plaintiff it did not have funds to pay overtime, and that the Plaintiff and similarly situated employees worked overtime without being paid those wages are sufficient to state a plausible claim and survive a motion to dismiss. Therefore, the Judge denies the Defendant's motion to dismiss the class claim. Whether or not the Plaintiff ultimately will be able to certify a class and the details of any proposed certified class is a matter to address following discovery. Accordingly, for the foregoing reasons, Judge Chambers denies the Defendant's Motion to Dismiss. Having denied the motion, the Judge denies as moot the Defendant's Motion to Stay. She directs the Clerk to send a copy of the Order to the counsel of record and any unrepresented parties. A full-text copy of the Court's May 24, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/dmsfwumw from Leagle.com. WEST VIRGINIA: Cheatham's Bid to Dismiss Class Complaint Junked --------------------------------------------------------------- In the class action lawsuit captioned as CHRISTOPHER FAIN; ZACHARY MARTELL; and MCNEMAR, individually and on behalf of all others similarly situated, v. WILLIAM CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources; CYNTHIA BEANE, in her official capacity as Commissioner for the West Virginia Bureau for Medical Services; WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR MEDICAL SERVICES; TED CHEATHAM, in his official capacity as Director of the West Virginia Public Employees Insurance Agency; and THE HEALTH PLAN OF WEST VIRGINIA, INC., Case No. 3:20-cv-00740 (S.D.W.Va.), the Hon. Judge Robert C. Chambers entered an order: 1. denying the Defendant Cheatham's Motion to Dismiss the Complaint, and WVDHHR Defendants' Motion for Partial Dismissal of Plaintiffs' Class Action and Motion to Dismiss; 2. granting the Plaintiffs' Motion for Leave to file Sur-Reply; and 3. directing the Clerk to send a copy of the Opinion to counsel of Record and any unrepresented party. The Court said, "Cheatham's last argument is that the Plaintiffs failed to state an Equal Protection claim upon which relief may be granted because the PEIA policy passes heightened scrutiny. In short, Cheatham argues that there are three important government interests which are substantially related to PEIA's policies: (1) "guarantee[ing] the health and safety of the enrollees," (2) "maintain[ing] the medical standards of physicians and other entities that accept the insurance of enrollees," and (3) "sav[ing] taxpayer dollars from use for procedures that are not medically necessary, or FDA approved." As Plaintiffs argue in their Response, Cheatham's argument is improper because it relies on facts outside of the Complaint. For example, Cheatham's representations regarding patient "safety" and "medically necessary [procedures]" assume facts that are neither in the Complaint nor the record. In fact, the Complaint alleges the opposite: that gender-confirming care is medically necessary and safe. Therefore, the Court will not entertain Cheatham's fact-based arguments at this stage and denies Cheatham's Motion to Dismiss." The West Virginia Department of Health and Human Resources is a government agency of the U.S. state of West Virginia. The department administers the state's health, social, and welfare programs. A copy of the Court's memorandum, opinion and order dated May 19, 2021 is available from PacerMonitor.com at https://bit.ly/3wN4Lkc at no extra charge.[CC] WIRBICKI LAW: Loses Bid to Dismiss Bandele FDCPA Class Suit ----------------------------------------------------------- In the case, KAI BANDELE, Plaintiff v. THE WIRBICKI LAW GROUP, LLC, and BAYVIEW LOAN SERVICING, LLC, Defendants, Case No. 20 C 4104 (N.D. Ill.), Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division: (i) grants in part and denies in part Defendant Bayview's motion to dismiss; and (ii) denies Defendant Wirbicki Law Group, LLC's motion to dismiss. The Plaintiff took out a mortgage to purchase her home in Chicago but ultimately defaulted on that loan. Defendant Bayview is the mortgage servicer for the Plaintiff's mortgage loan. Bayview hired Defendant Wirbicki to file a foreclosure action. Wirbicki filed the foreclosure action in May 2018. The Plaintiff hired an attorney to represent her in the foreclosure action, and that attorney filed an appearance on her behalf. Because the attorney served a copy of the appearance on Wirbicki, both Wirbicki and Bayview knew that the Plaintiff was represented by counsel. Notwithstanding this knowledge, Wirbicki mailed the Plaintiff two dunning letters, copies of which the Plaintiff attached to her complaint. Specifically, on July 15, 2019, Wirbicki mailed the first letter to the Plaintiff. The Plaintiff alleges that the letter confused her. She alleges that an "unsophisticated consumer would not know the amount that would be required to pay off the loan, though Bayview was required to provide an accurate payoff amount." The Plaintiff alleges Wirbicki mailed her a second letter on Dec. 2, 2019. On March 6, 2018, JPMorgan Chase Bank, N.A. assigned the Plaintiff's mortgage to Bayview. Based on these allegations, the Plaintiff filed a purported class-action complaint, in which she asserts claims for violation of the Fair Debt Collection Practices Act ("FDCPA"). The Defendants move to dismiss. Discussion In Count I, the Plaintiff asserts that the Defendants violated the FDCPA Section 1692e in sending the first letter, because the letter threatened late charges when the loan had already been accelerated but she had not sought reinstatement. The Plaintiff alleges the letter constituted a threat to take action that could not legally be taken and constituted false, deceptive or misleading representations. In Count II, the Plaintiff asserts that the first and second letters were false, deceptive or misleading in how they described the amount due for payoff (in the first letter) or reinstatement (in the second). Specifically, she alleges she was confused that the letters said a specific amount was valid through a date certain and then said the amount might change on that date certain. In Count III, the Plaintiff asserts the Defendants violated the FDCPA by sending her the first letter despite knowing that she was represented by counsel. A. Consent In Count III, the Plaintiff asserts that the Defendants violated Section 1692c(a) of the FDCPA when "Wirbicki, on behalf of Bayview" sent the first letter to her. The Defendants move to dismiss this count, arguing that the Plaintiff pleaded herself out of court on this claim by attaching a document that proves she consented. Specifically, they point to the first letter itself, which the Plaintiff attached to the complaint. Judge Alonso does not agree with the Defendants that the Plaintiff, by attaching the letter, has admitted the truth of every statement defendant included in the letter. It is clear that the Plaintiff attached the letter in support of her FDCPA claims. She attached the letter to show the letter was sent to her and to show the language she alleges violated the FDCPA. The Judge agrees that he may consider each letter in its entirety when considering whether the language violates the FDCPA. What he will not do is assume the truth of every fact the Defendant included in those letters. For these reasons, the Judge holds that the first dunning letter does not, by its nature, imply credibility, and the Plaintiff was not vouching for the facts the Defendant included therein when she attached it to show that the letter was sent to her and to show the language she claims violates the FDCPA. She has not, by attaching it, admitted the truth of the Defendant's statement in the letter that the letter was solicited. She has not admitted that she consented to the letter. The Judge will not dismiss Count III on this basis at the 12(b)(6) stage. B. Notice and cure The Defendants argue that the Plaintiff's claims must be dismissed, because she has failed to allege that she gave notice and allowed a reasonable time for corrective action. Judge Alonso opines that, as the Plaintiff points out, the notice-and-cure provision applies only to suits against the Lender. It is clear that Bayview counts as Lender. The mortgage defined Lender as JP Morgan Chase Bank, N.A., which assigned the mortgage to Bayview on March 6, 2018, as it was allowed to do under the mortgage. At that point, Bayview became the Lender and was entitled to notice. Because the Plaintiff has not alleged that she gave such notice, Count I is dismissed without prejudice as to Bayview. As the Plaintiff also points out, the Judge finds that Defendant Wirbicki (who did not file its own brief but instead merely adopted Bayview's) has not explained why the notice-and-cure provision would apply to claims against it. Accordingly, he will not dismiss Count I against Wirbicki on the basis of the notice-and-cure provision at this time. C. Rizzo In Count I, the Plaintiff asserts that the Defendants violated the FDCPA Section 1692e in sending the first letter, because the letter threatened late charges when the loan had already been accelerated and when plaintiff had not sought reinstatement. The Defendant cites Rizzo v. Pierce & Assoc., 351 F.3d 791 (7th Cir. 2003) and argues that late charges could be assessed in the event a mortgage was reinstated after acceleration. In Rizzo, the Seventh Circuit concluded that defendant had not violated the FDCPA by charging late fees for past-due payments on an accelerated mortgage after reinstatement, because the mortgage allowed those fees to be charged in the event of reinstatement. In the case, though, the Plaintiff's claim is that the Defendants threatened to charge late fees after acceleration even though the Plaintiff did not ask to have the mortgage reinstated. The Defendants have not convinced Judge Alonso that Count I should be dismissed on this basis. Conclusion For the reasons he set forth, Judge Alonso grants in part and denies in part Defendant Bayview's motion to dismiss. The Judge dismisses without prejudice Count I against Bayview. The Judge denies Defendant Wirbicki's motion to dismiss. The Plaintiff is granted until June 14, 2021 to file an amended complaint should she so choose. The Defendants' deadline to answer or otherwise plead is July 6, 2021. The case is set for status on July 7, 2021, at 9:30 a.m. A full-text copy of the Court's May 25, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/ypcmy4zu from Leagle.com. Asbestos Litigation ASBESTOS UPDATE: AMETEK Still Defends Asbestos-Related Suits ------------------------------------------------------------ AMETEK, Inc. (including its subsidiaries), has been named as a defendant in a number of asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Certain of these lawsuits relate to a business which was acquired by the Company and do not involve products which were manufactured or sold by the Company. In connection with these lawsuits, the seller of such business has agreed to indemnify the Company against these claims (the "Indemnified Claims"). The Indemnified Claims have been tendered to, and are being defended by, such seller. The seller has met its obligations, in all respects, and the Company does not have any reason to believe such party would fail to fulfill its obligations in the future. To date, no judgments have been rendered against the Company as a result of any asbestos-related lawsuit. The Company believes that it has good and valid defenses to each of these claims and intends to defend them vigorously." A full-text copy of the Form 10-Q is available at https://bit.ly/3g4fAHS ASBESTOS UPDATE: Chemours Co. Assumes 1,000 EID PI Lawsuits ----------------------------------------------------------- The Chemours Company, due to the terms of the Separation-related agreements with EID, has been assigned to approximately 1,000 and 1,100 lawsuits pending at March 31, 2021 and December 31, 2020, respectively, against Chemours from E. I. du Pont de Nemours and Company (EID) alleging personal injury from exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "In the Separation, EID assigned its asbestos docket to Chemours. These cases are pending in state and federal court in numerous jurisdictions in the U.S. and are individually set for trial. A small number of cases are pending outside of the U.S. Most of the actions were brought by contractors who worked at sites between the 1950s and the 1990s. A small number of cases involve similar allegations by EID employees or household members of contractors or EID employees. Finally, certain lawsuits allege personal injury as a result of exposure to EID products. "At March 31, 2021 and December 31, 2020, Chemours had an accrual of $34 related to these matters." A full-text copy of the Form 10-Q is available at https://bit.ly/3wOtFQG ASBESTOS UPDATE: Crane Has 29,407 Pending Claims at March 31 ------------------------------------------------------------ Crane Co., as of March 31, 2021, is a defendant in cases filed in numerous state and federal courts alleging injury or death as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Of the 29,407 pending claims as of March 31, 2021, approximately 18,000 claims were pending in New York of which approximately 16,000 are non-malignancy claims that were filed over 15 years ago and have been inactive under New York court orders. "We have tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court. We further have pursued appeals of certain adverse jury verdicts that have resulted in reversals in favor of the defense. We have also tried several other cases resulting in plaintiff verdicts which we paid or settled after unsuccessful appeals. "The gross settlement and defense costs incurred (before insurance recoveries and tax effects) by us for the three months ended March 31, 2021 and 2020 totaled $9.1 million and $12.6 million, respectively. In contrast to the recognition of settlement and defense costs, which reflect the current level of activity in the tort system, cash payments and receipts generally lag the tort system activity by several months or more, and may show some fluctuation from period to period. Cash payments of settlement amounts are not made until all releases and other required documentation are received by us, and reimbursements of both settlement amounts and defense costs by insurers may be uneven due to insurer payment practices, transitions from one insurance layer to the next excess layer and the payment terms of certain reimbursement agreements. Our total pre-tax payments for settlement and defense costs, net of funds received from insurers, for the three months ended March 31, 2021 and, 2020 totaled $10.8 million and $11.7 million, respectively. "Cumulatively through March 31, 2021, we have resolved (by settlement or dismissal) approximately 142,000 claims. The related settlement cost incurred by us and our insurance carriers is approximately $684 million, for an average settlement cost per resolved claim of approximately $4,800. The average settlement cost per claim resolved during the years ended December 31, 2020, 2019 and 2018 was $13,900, $15,800, and $11,300, respectively. Because claims are sometimes dismissed in large groups, the average cost per resolved claim, as well as the number of open claims, can fluctuate significantly from period to period. In addition to large group dismissals, the nature of the disease and corresponding settlement amounts for each claim resolved will also drive changes from period to period in the average settlement cost per claim. Accordingly, the average cost per resolved claim is not considered in our periodic review of our estimated asbestos liability." "A full-text copy of the Form 10-Q is available at https://bit.ly/3p91Q2E ASBESTOS UPDATE: Exelon Had $88MM Est. Liabilities at March 31 -------------------------------------------------------------- Exelon Corporation and Generation, at March 31, 2021 and December 31, 2020, had recorded estimated liabilities of approximately $88 million and $89 million, respectively, in total for asbestos-related bodily injury claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As of March 31, 2021, approximately $24 million of this amount related to 243 open claims presented to Generation, while the remaining $64 million is for estimated future asbestos-related bodily injury claims anticipated to arise through 2055, based on actuarial assumptions and analyses, which are updated on an annual basis. On a quarterly basis, Generation monitors actual experience against the number of forecasted claims to be received and expected claim payments and evaluates whether adjustments to the estimated liabilities are necessary. "It is reasonably possible that additional exposure to estimated future asbestos-related bodily injury claims in excess of the amount accrued could have a material, unfavorable impact on Exelon's and Generation's financial statements. However, management cannot reasonably estimate a range of loss beyond the amounts recorded." A full-text copy of the Form 10-Q is available at https://bit.ly/3yNKxJ7 ASBESTOS UPDATE: Freeport-McMoRan Still Defends Exposure Claims --------------------------------------------------------------- Freeport-McMoRan Inc.'s various affiliates, since approximately 1990, have been named as defendants in a large number of lawsuits alleging personal injury from, among other things, exposure to asbestos or talc allegedly contained in industrial products, and more recently alleging the presence of asbestos contamination in talc-based cosmetic and personal care products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Cyprus Amax Minerals Company (CAMC), an indirect wholly owned subsidiary of FCX, and Cyprus Mines Corporation (Cyprus Mines), a wholly owned subsidiary of CAMC, are among the targets of such lawsuits. Cyprus Mines and subsidiaries were engaged in talc mining and processing from 1964 until 1992 when Cyprus Mines exited its talc business. On February 13, 2019, Imerys Talc America (Imerys), the current owner of the talc business assets and liabilities previously owned by Cyprus Mines, filed for Chapter 11 bankruptcy protection. On December 22, 2020, Imerys filed an amended bankruptcy plan disclosing a global settlement with Cyprus Mines and CAMC, which provides a framework for a full and comprehensive resolution of all current and future potential liabilities arising out of the Cyprus Mines talc business, including claims against FCX, its affiliates, Cyprus Mines, and CAMC. On January 21, 2021, in connection with the proposed global settlement, Imerys sought an injunction temporarily staying up to approximately 950 talc-related lawsuits against CAMC and Cyprus Mines. On February 22, 2021, the bankruptcy court granted the requested preliminary injunction, which is currently in place until June 30, 2021. The global settlement is subject to, among other things, bankruptcy court approvals of both the Imerys bankruptcy plan and the Cyprus Mines bankruptcy plan, and there can be no assurance that the global settlement will be successfully implemented." A full-text copy of the Form 10-Q is available at https://bit.ly/3g37nUm ASBESTOS UPDATE: Harsco Faces 17,192 PI Claims at March 31 ---------------------------------------------------------- Harsco Corporation had approximately 17,192 pending asbestos personal injury actions filed against the Company at March 31, 2021, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Of those actions, approximately 16,602 were filed in the New York Supreme Court (New York County), approximately 119 were filed in other New York State Supreme Court Counties and approximately 471 were filed in courts located in other states. "The Company believes that the claims against it are without merit. The Company has never been a producer, manufacturer or processor of asbestos fibers. Any asbestos-containing part of a Company product used in the past was purchased from a supplier and the asbestos encapsulated in other materials such that airborne exposure, if it occurred, was not harmful and is not associated with the types of injuries alleged in the pending actions. "The complaints in most of those actions generally follow a form that contains a standard damages demand of $20 million or $25 million, regardless of the individual plaintiff’s alleged medical condition, and without identifying any specific Company product. "At March 31, 2021 approximately 16,549 of the actions filed in New York Supreme Court (New York County) were on the Deferred/Inactive Docket created by the court in December 2002 for all pending and future asbestos actions filed by persons who cannot demonstrate that they have a malignant condition or discernible physical impairment. The remaining approximately 53 cases in New York County are pending on the Active or In Extremis Docket created for plaintiffs who can demonstrate a malignant condition or physical impairment. "The Company has liability insurance coverage under various primary and excess policies that the Company believes will be available, if necessary, to substantially cover any liability that might ultimately be incurred in the asbestos actions referred to above. The costs and expenses of the asbestos actions are being paid by the Company's insurers. "In view of the persistence of asbestos litigation in the U.S., the Company expects to continue to receive additional claims in the future. The Company intends to continue its practice of vigorously defending these claims and cases. At March 31, 2021 the Company has obtained dismissal in approximately 28,324 cases by stipulation or summary judgment prior to trial. "It is not possible to predict the ultimate outcome of asbestos-related actions in the U.S. due to the unpredictable nature of this litigation, and no loss provision has been recorded in the Company's condensed consolidated financial statements because a loss contingency is not deemed probable or estimable. Despite this uncertainty, and although results of operations and cash flows for a given period could be adversely affected by asbestos-related actions, the Company does not expect that any costs that are reasonably possible to be incurred by the Company in connection with asbestos litigation would have a material adverse effect on the Company's financial condition, results of operations or cash flows. "The Company is subject to various other claims and legal proceedings covering a wide range of matters that arose in the ordinary course of business. In the opinion of management, all such matters are adequately covered by insurance or by established reserves, and, if not so covered, are without merit or are of such kind, or involve such amounts, as would not have a material adverse effect on the financial position, results of operations or cash flows of the Company. Insurance liabilities are recorded when it is probable that a liability has been incurred for a particular event and the amount of loss associated with the event can be reasonably estimated. Insurance reserves have been estimated based primarily upon actuarial calculations and reflect the undiscounted estimated liabilities for ultimate losses, including claims incurred but not reported. Inherent in these estimates are assumptions that are based on the Company's history of claims and losses, a detailed analysis of existing claims with respect to potential value, and current legal and legislative trends. If actual claims differ from those projected by management, changes (either increases or decreases) to insurance reserves may be required and would be recorded through income in the period the change was determined. When a recognized liability is covered by third-party insurance, the Company records an insurance claim receivable to reflect the covered liability." A full-text copy of the Form 10-Q is available at https://bit.ly/3c6CvBq ASBESTOS UPDATE: Meritor Inc. Records $75MM in Future Claims ------------------------------------------------------------ Meritor, Inc. has recognized a liability for pending and future claims over the next 38 years of $75 million as of March 31, 2021, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Rockwell. "The company engaged a third-party advisor with extensive experience in assessing asbestos-related liabilities to conduct a study to estimate its potential undiscounted liability for pending and future asbestos-related claims as of September 30, 2020. Management continuously monitors the underlying claims data and experience for the purpose of assessing the appropriateness of the assumptions used to estimate the liability. "AM has insurance coverage that management believes covers indemnity and defense costs, over and above self-insurance retentions, for a significant portion of these claims. The company recognizes insurance recoveries when the claim for recovery is deemed probable and to the extent an insurable loss has been recognized in the financial statements. The company’s determination is based on analysis of the underlying insurance policies, historical experience with insurers, ongoing review of the solvency of insurers, and consideration of any insurance settlements The insurance receivables for Rockwell asbestos-related liabilities totaled $59 million and $62 million as of March 31, 2021 and September 30, 2020, respectively. "The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Rockwell could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Rockwell in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; the company's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. However, the amount of reasonably possible and estimable losses in excess of the recorded asbestos-related liabilities was determined to be immaterial." A full-text copy of the Form 10-Q is available at https://bit.ly/3i6fKkR ASBESTOS UPDATE: ODP Corp.'s OfficeMax Faces Various PI Claims -------------------------------------------------------------- The ODP Corporation's operating subsidiary, OfficeMax, is named as a defendant in a number of lawsuits, claims, and proceedings arising out of the operation of certain paper and forest products assets prior to those assets being sold in 2004, for which OfficeMax agreed to retain responsibility, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Also, as part of that sale, OfficeMax agreed to retain responsibility for all pending or threatened proceedings and future proceedings alleging asbestos-related injuries arising out of the operation of the paper and forest products assets prior to the closing of the sale. The Company has made provision for losses with respect to the pending proceedings. Additionally, as of March 27, 2021, the Company has made provision for environmental liabilities with respect to certain sites where hazardous substances or other contaminants are or may be located. For these liabilities, the Company's estimated range of reasonably possible losses was approximately $15 million to $25 million. The Company regularly monitors its estimated exposure to these liabilities. As additional information becomes known, these estimates may change, however, the Company does not believe any of these OfficeMax retained proceedings are material to the Company's financial position, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/3z4Q2Do ASBESTOS UPDATE: Park-Ohio Holdings Still Defends 121 Cases ----------------------------------------------------------- Park-Ohio Holdings Corp. is a co-defendant in approximately 121 cases asserting claims on behalf of approximately 222 plaintiffs alleging personal injury as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. "In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. "There are four asbestos cases, involving 20 plaintiffs, that plead specified damages against named defendants. In each of the four cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In two cases, the plaintiff has alleged three counts at $3.0 million compensatory and punitive damages each; one count at $3.0 million compensatory and $1.0 million punitive damages; one count at $1.0 million. In the third case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $20.0 million, for three separate causes of action, and $5.0 million compensatory damages for the fifth cause of action. In the fourth case, the plaintiff has alleged compensatory and punitive damages, each in the amount of $10.0 million, for ten separate causes of action. "Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos-containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos-related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits on the bases mentioned above; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. "Our cost of defending these lawsuits has not been material to date and, based upon available information, our management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on our results of operations, liquidity or financial position." "A full-text copy of the Form 10-Q is available at https://bit.ly/34AnN1p ASBESTOS UPDATE: Roper Tech. Still Defends Asbestos Claims ---------------------------------------------------------- Roper Technologies, Inc. or its subsidiaries have been named defendants along with numerous industrial companies in asbestos-related litigation claims in certain U.S. states, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "No significant resources have been required by Roper to respond to these cases and Roper believes it has valid defenses to such claims and, if required, intends to defend them vigorously. Given the state of these claims, it is not possible to determine the potential liability, if any." A full-text copy of the Form 10-Q is available at https://bit.ly/3vTPLAU ASBESTOS UPDATE: Sempra Energy's Subsidiaries Defends PI Lawsuits ----------------------------------------------------------------- Sempra Energy's certain indirect subsidiaries, which were acquired as part of the EFH merger, are defendants in personal injury lawsuits brought in state courts throughout the U.S., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As of April 30, 2021, four such lawsuits are pending, all of which have been served. These cases allege illness or death as a result of exposure to asbestos in power plants designed and/or built by companies whose assets were purchased by predecessor entities to the EFH subsidiaries, and generally assert claims for product defects, negligence, strict liability and wrongful death. They seek compensatory and punitive damages. Additionally, in connection with the EFH bankruptcy proceeding, approximately 28,000 proofs of claim were filed on behalf of persons who allege exposure to asbestos under similar circumstances and assert the right to file such lawsuits in the future. None of these claims or lawsuits were discharged in the EFH bankruptcy proceeding. The costs to defend or resolve these lawsuits and the amount of damages that may be imposed or incurred could have a material adverse effect on Sempra Energy's cash flows, financial condition and results of operations." A full-text copy of the Form 10-Q is available at https://bit.ly/3fGveu1 ASBESTOS UPDATE: Trane Technologies' Subsidiaries Faces PI Suits ---------------------------------------------------------------- Trane Technologies plc's certain wholly-owned subsidiaries and former companies were named as defendants in asbestos-related lawsuits in state and federal courts, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "In virtually all of the suits, a large number of other companies have also been named as defendants. The vast majority of those claims were filed against predecessors of Aldrich and Murray and generally allege injury caused by exposure to asbestos contained in certain historical products sold by predecessors of Aldrich or Murray, primarily pumps, boilers and railroad brake shoes. None of the Company's existing or previously-owned businesses were a producer or manufacturer of asbestos. "On June 18, 2020, Aldrich and Murray each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code to resolve equitably and permanently all current and future asbestos related claims in a manner beneficial to claimants, Aldrich and Murray. As a result of the Chapter 11 filings, all asbestos-related lawsuits against Aldrich and Murray have been stayed due to the imposition of a statutory automatic stay applicable in Chapter 11 bankruptcy cases. In addition, at the request of Aldrich and Murray, the Bankruptcy Court has entered an order temporarily staying all asbestos-related claims against the Trane Companies that relate to claims against Aldrich or Murray (except for asbestos-related claims for which the exclusive remedy is provided under workers' compensation statutes or similar laws). "The goal of these Chapter 11 filings is an efficient and permanent resolution of all current and future asbestos claims through court approval of a plan of reorganization, which would establish, in accordance with section 524(g) of the Bankruptcy Code, a trust to which all asbestos claims would be channeled for resolution. Aldrich and Murray intend to seek an agreement with representatives of the asbestos claimants on the terms of a plan for the establishment of such a trust. "Prior to the Petition Date, predecessors of each of Aldrich and Murray had been litigating asbestos-related claims brought against them. No such claims have been paid since the Petition Date, and it is not contemplated that any such claims will be paid until the end of the Chapter 11 cases. At this point in the Chapter 11 cases of Aldrich and Murray, it is not possible to predict whether or how long the Bankruptcy Court order temporarily staying asbestos-related claims against the Trane Companies will be extended, whether or when any agreement with representatives of the asbestos claimants on the terms of a plan for the establishment of a trust will be reached, what the terms of any plan of reorganization or the extent of the asbestos liability will be or how long the Chapter 11 cases will last. "From an accounting perspective, the Company no longer had control over Aldrich and Murray as of the Petition Date as their activities are subject to review and oversight by the Bankruptcy Court. Therefore, Aldrich and its wholly-owned subsidiary 200 Park and Murray and its wholly-owned subsidiary ClimateLabs were deconsolidated as of the Petition Date and their respective assets and liabilities were derecognized from the Company's Condensed Consolidated Financial Statements. Amounts derecognized primarily related to the legacy asbestos-related liabilities and asbestos-related insurance recoveries and $41.7 million of cash. However, in connection with the 2020 Corporate Restructuring, certain subsidiaries of the Company entered into funding agreements with Aldrich and Murray (collectively the Funding Agreements), pursuant to which those subsidiaries are obligated, among other things, to pay the costs and expenses of Aldrich and Murray during the pendency of the Chapter 11 cases to the extent distributions from their respective subsidiaries are insufficient to do so and to provide an amount for the funding for a trust established pursuant to section 524(g) of the Bankruptcy Code, to the extent that the other assets of Aldrich and Murray are insufficient to provide the requisite trust funding." A full-text copy of the Form 10-Q is available at https://bit.ly/3i6vgwT ASBESTOS UPDATE: Transocean's Subsidiary Defends 256 PI Lawsuits ---------------------------------------------------------------- Transocean Ltd.'s subsidiary, as of March 31, 2021, is a defendant in approximately 256 lawsuits with a corresponding number of plaintiffs, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "One of our subsidiaries has been named as a defendant, along with numerous other companies, in lawsuits arising out of the subsidiary's manufacture and sale of heat exchangers, and involvement in the construction and refurbishment of major industrial complexes alleging bodily injury or personal injury as a result of exposure to asbestos. For many of these lawsuits, we have not been provided sufficient information from the plaintiffs to determine whether all or some of the plaintiffs have claims against the subsidiary, the basis of any such claims, or the nature of their alleged injuries. The operating assets of the subsidiary were sold in 1989. In September 2018, the subsidiary and certain insurers agreed to a settlement of outstanding disputes that provided the subsidiary with cash and an annuity. Together with a coverage-in-place agreement with certain insurers and additional coverage issued by other insurers, we believe the subsidiary has sufficient resources to respond to both the current lawsuits as well as future lawsuits of a similar nature. "As of March 31, 2021, nine plaintiffs have claims pending in Louisiana and 14 plaintiffs have claims pending in Illinois and Missouri, in which we have or may have an interest. We intend to defend these lawsuits vigorously, although we can provide no assurance as to the outcome. We historically have maintained broad liability insurance, although we are not certain whether insurance will cover the liabilities, if any, arising out of these claims. Based on our evaluation of the exposure to date, we do not expect the liability, if any, resulting from these claims to have a material adverse effect on our condensed consolidated statement of financial position, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/3c9Ioh4 ASBESTOS UPDATE: Xylem Inc. May Still Face Exposure Claims ---------------------------------------------------------- Xylem Inc., from time to time, may be asserted by claims alleging injury caused by any of its products resulting from asbestos exposure, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "We believe there are numerous legal defenses available for such claims and would defend ourselves vigorously. Pursuant to the Distribution Agreement among ITT Corporation (now ITT LLC), Exelis (acquired by Harris Corporation, now L3Harris Technologies, Inc.) and Xylem, ITT Corporation (now ITT LLC) has an obligation to indemnify, defend and hold Xylem harmless for asbestos product liability matters, including settlements, judgments, and legal defense costs associated with all pending and future claims that may arise from past sales of ITT's legacy products. We believe ITT Corporation (now ITT LLC) remains a substantial entity with sufficient financial resources to honor its obligations to us. "Although the ultimate outcome of any legal matter cannot be predicted with certainty, based on present information, including our assessment of the merits of the particular claims, we do not believe it is reasonably possible that any asserted or unasserted legal claims or proceedings, individually or in aggregate, will have a material adverse effect on our results of operations, or financial condition. We have estimated and accrued $5 million and $6 million as of March 31, 2021 and December 31, 2020, respectively, for these general legal matters. Indemnifications "As part of our 2011 spin-off from our former parent, ITT Corporation (now ITT LLC), Exelis Inc. (acquired by Harris Corporation, now L3Harris Technologies, Inc.) and Xylem will indemnify, defend and hold harmless each of the other parties with respect to such parties' assumed or retained liabilities under the Distribution Agreement and breaches of the Distribution Agreement or related spin agreements. ITT LLC's indemnification obligations include asserted and unasserted asbestos and silica liability claims that relate to the presence or alleged presence of asbestos or silica in products manufactured, repaired or sold prior to October 31, 2011, the Distribution Date, subject to limited exceptions with respect to certain employee claims, or in the structure or material of any building or facility, subject to exceptions with respect to employee claims relating to Xylem buildings or facilities. The indemnification associated with pending and future asbestos claims does not expire. Xylem has not recorded a liability for material matters for which we expect to be indemnified by the former parent or Exelis Inc. through the Distribution Agreement and we are not aware of any claims or other circumstances that would give rise to material payments from us under such indemnifications." A full-text copy of the Form 10-Q is available at https://bit.ly/3i3KNxE BESTWALL LLC: Subpoenas Served on 9 Asbestos Trusts Quashed ----------------------------------------------------------- Delaware District Judge Colm F. Connolly granted the request of nine asbestos settlement trusts to quash subpoenas, which have been served upon them and the Delaware Claims Processing Facility, by Bestwall LLC, seeking production of electronically stored claimant information. Judge Connolly acknowledged that Bestwell has demonstrated a legitimate purpose in requesting the Claimant data to aid in plan formulation and estimation proceedings, and the protections set in place by the Bankruptcy Court for the Western District of North Carolina, where Bestwall's Chapter 11 case is pending, will go a long way toward protecting Trust Claimants' sensitive data. However, Judge Connolly continued, Bestwell has not sought relief from the bankruptcy court that issued the orders establishing and governing the Settlement Trusts. It appears that additional safeguards must be included in order to comply with previous protections granted by the Delaware Bankruptcy Court in those cases, including, but not limited to, appointment of an independent facilitator to oversee production, he said. The Motion to Quash is granted without prejudice to Bestwell's right to seek reissuance of the subpoenas seeking a narrower document production that is consistent with the protections afforded by the Bankruptcy Court, Judge Connolly ruled. Judge Connolly also denied Bestwall's Motion to Transfer Proceedings and Supplemental Motion to Transfer Proceedings, which together seek orders transferring all of the Motions to Quash to the North Carolina Bankruptcy Court. A copy of the District Court's June 1, 2021 Memorandum is available at https://bit.ly/3ieerjV from Leagle.com. The Trusts are: * Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust; * Celotex Asbestos Settlement Trust; * Flintkote Asbestos Trust; * Pittsburgh Corning Corporation Personal Injury Settlement Trust; * WRG Asbestos PI Trust; * Federal-Mogul Asbestos Personal Injury Trust; * Babcock & Wilcox Company Asbestos PI Trust; * United States Gypsum Asbestos Personal Injury Settlement Trust; and * Owens Corning/Fibreboard Asbestos Personal Injury Trust. Beth Moskow-Schnoll -- moskowb@ballardspahr.com -- at Ballard Spahr LLP in Wilmington, Del., serves as counsel to the Trusts. About Bestwall LLC Bestwall LLC -- http://www.Bestwall.com/-- was created in an internal corporate restructuring and now holds asbestos liabilities. Bestwall's asbestos liabilities relate primarily to joint systems products manufactured by Bestwall Gypsum Company, a company acquired by Georgia-Pacific in 1965. The former Bestwall Gypsum entity manufactured joint compounds containing small amounts of chrysotile asbestos. The manufacture of these asbestos-containing products ceased in 1977. Bestwall's non-debtor subsidiary, GP Industrial Plasters LLC develops, manufactures, sells and distributes gypsum plaster products. Bestwall sought Chapter 11 protection (Bankr. W.D.N.C. Case No. 17-31795) on Nov. 2, 2017, in an effort to equitably and permanently resolve all its current and future asbestos claims. The Debtor estimated assets and debt of $500 million to $1 billion. It has no funded indebtedness. The Hon. Laura T. Beyer is the case judge. The Debtor tapped Jones Day as general bankruptcy counsel, Robinson Bradshaw & Hinson P.A. as local counsel, Schachter Harris LLP as special litigation counsel for medicine science issues, King & Spalding as special counsel for asbestos matters, and Bates White LLC as asbestos consultant. Donlin Recano LLC is the claims and noticing agent. On Nov. 8, 2017, the U.S. bankruptcy administrator appointed an official committee of asbestos claimants in the Debtor's case. The committee retained Montgomery McCracken Walker & Rhoads LLP as its legal counsel, Hamilton Stephens Steele + Martin, PLLC and JD Thompson Law as local counsel, and FTI Consulting, Inc., as financial advisor. On Feb. 22, 2018, the court approved the appointment of Sander L. Esserman as the future claimants' representative in the Debtor's case. Mr. Esserman tapped Young Conaway Stargatt & Taylor, LLP as his legal counsel and Alexander Ricks PLLC as his North Carolina counsel. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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