/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210708.mbx C L A S S A C T I O N R E P O R T E R Thursday, July 8, 2021, Vol. 23, No. 130 Headlines ALIERA HEALTHCARE: Must Face Health Care Coverage Class Action ALLIANCE OF PROFESSIONALS: McCormick Seeks Unpaid Overtime Wages APOLLO GLOBAL: Loses Bid for Summary Judgment in McEvoy Class Suit ARRAY TECHNOLOGIES: Levi & Korsinsky Reminds of July 13 Deadline ATHIRA PHARMA: Kessler Topaz Reminds of August 24 Deadline ATHIRA PHARMA: Schall Law Firm Reminds of August 20 Deadline BARCLAYS PLC: Sept. 13 Settlement Fairness Hrg. Set in Class Suit CABRILLO CREDIT: Loses Bid to Compel Arbitration in Cortes Suit CALIFORNIA: Court Tosses Hill's COVID-19 Related Suit CANADA: Marten Falls First Nation Joins Water Class Action CENTRA TECH: Denial of Class Certification in Rensel Suit Vacated CONTEXTLOGIC INC: Pomerantz LLP Reminds of July 16 Deadline CVS PHARMACY: IWL Files Amicus Brief in ACA Discrimination Suit CVS PHARMACY: Wins Jury Trial in Washington Consumer Class Suit DANIMER SCIENTIFIC: Frank R. Cruz Reminds of July 13 Deadline DR. REDDY'S: Overarching Conspiracy Related Class Suits Underway DR. REDDY'S: Pharmacy and Hospital Indirect Purchaser Suit Underway DR. REDDY'S: Pravastatin Antitrust Class Action Ongoing DR. REDDY'S: Ranitidine Related Suits Underway DR. REDDY'S: Unit Continues to Defend Price Fixing Related Suits E*TRADE SECURITIES: Whitesides' 2nd Amended Complaint Dismissed FCA US: Michigan Court Consolidates Pistorio and Gerritsen Suits HERFF JONES: Odagiu Files Suit Over Data Breach HOME POINT: Howard G. Smith Reminds of August 20 Deadline HOME POINT: Wolf Haldenstein Reminds of August 20 Deadline JSR MICRO: Sanchez Suit Seeks Unpaid Wages MDL 2179: Court Tosses Valdivieso's Oil Spill Claims Against BP MDL 2994: Five Data Breach ActionsTransferred to S.D. Fla. MDL 2995: Allianz Fund Mismanagement Suit Transfer Requests Denied MDL 2996: 17 Prescription Opioids Product Suits Moved to N.D. Cal. MDL 2997: Baby Food Product Liability Suit Transfer Requests Denied MDL 2998: Two Pork Supply Antitrust Disputes Transferred to Minn. MERIDIAN SENIOR: S.D. Illinois Partly Grants Bid to Stay Hall Suit MONEYGRAM INT'L: Denial of Arbitration Bid in Fisher Suit Affirmed MOSAIC BAYBROOK: Tex. App. Affirms Injunction Order in Cessor Suit OCUGEN INC: Bronstein Gewirtz Reminds of August 17 Deadline OHIO LIVING: Shortchanges Workers' Pay, Kordie Says PACIFIC BELL: Stephens Sues Over Illegally Charged Late Fees PARKING REIT: July 16 Settlement Fairness Hearing Set in Class Suit PORTERMATT ELECTRIC: Denial of Rubio's Involvement in Finley Upheld PROVENTION BIO: Levi & Korsinsky Reminds of July 20 Deadline REKOR SYSTEMS: Pomerantz Law Firm Reminds of August 30 Deadline ROCKET COMPANIES: Robbins Geller Files Securities Class Action SIX FLAGS: Cal. App. Affirms Dismissal of Villegas Class Suit TABLEAU SOFTWARE: Sept. 14 Settlement Hearing Set in Class Suit TARENA INTERNATIONAL: Frank R. Cruz Reminds of Aug. 23 Deadline TARENA INTERNATIONAL: Rosen Law Firm Reminds of Aug. 23 Deadline TD AMERITRADE: Dismissal of Knowles' 2nd Amended Complaint Upheld TOTAL LIFE: Bid to Dismiss Williams' 1st Amended Class Suit Denied TRANSUNION LLC: Robinson+Cole Attorney Discusses Court Ruling TWO RIVERS: Dismissed Without Prejudice as Party From Paulson Suit UBIQUITI INC: Lieff Cabraser Reminds of July 19 Deadline UNITED STATES: Court Denies Bid to Certify Class in Lohmann Suit UNITED STATES: Elbert Wins Summary Judgment in Suit Against USDA VIRGIN GALACTIC: Howard G. Smith Reminds of July 27 Deadline WALMART INC: October 14 Settlement Approval Hearing Set ZUFFA LLC: Johnson Sues Over Anticompetitive Practices ********* ALIERA HEALTHCARE: Must Face Health Care Coverage Class Action -------------------------------------------------------------- Greg Land, writing for benefitsPRO, reports that a federal judge in Atlanta declined to grant the prayers of an Atlanta-based marketer of health care coverage for affiliated faith-based "health care sharing ministries" that sought the dismissal or compelled arbitration of a putative class action claiming its plans are both illegal and do not provide the coverage participants pay for. According to the complaint Atlanta-based Aliera Cos., formerly known as Aliera Healthcare Inc., pockets 84 cents for every dollar in premiums it collects, while federal statutes generally limit administrative costs and profits to 15% of premiums. [GN] ALLIANCE OF PROFESSIONALS: McCormick Seeks Unpaid Overtime Wages ---------------------------------------------------------------- DANNY R. MCCORMICK, individually and for others similarly situated, Plaintiff v. ALLIANCE OF PROFESSIONALS & CONSULTANTS, INC., Defendant, Case No. 3:21-cv-00308 (W.D.N.C., June 28, 2021) is a collective action complaint brought against the Defendant for its alleged failure to pay overtime in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendant as a project manager from approximately December 2014 through January 2020. According to the complaint, the Defendant paid its employees the same hourly rate regardless of the number of hours worked. The Plaintiff claims that despite regularly working over 40 hours per week throughout his employment with the Defendant, the Defendant did not pay him and other similarly situated employees overtime compensation at the rate of one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. The Plaintiff brings this complaint on behalf of himself and other similarly situated employees seeking to recover unpaid overtime wages from the Defendant, as well as liquidated damages, pre- and post-judgment interest, reasonable attorneys' fees, and other relief as may be necessary and appropriate. Alliance of Professionals & Consultants is a staffing firm that provides business and staffing solutions to dynamic companies and enterprises throughout the U.S. [BN] The Plaintiff is represented by: Christopher Strianese, Esq. Tamara Huckert, Esq. STRIANESE HUCKERT LLP 3501 Monroe Rd. Charlotte, NC 28205 Tel: (704) 966-2101 E-mail: chris@strilaw.com tamara@strilaw.com - and – Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. Rochelle D. Prins, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rprins@mybackwages.com - and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com APOLLO GLOBAL: Loses Bid for Summary Judgment in McEvoy Class Suit ------------------------------------------------------------------ In the case, MICHAEL McEVOY, on behalf of himself and others similarly situated, Plaintiff v. APOLLO GLOBAL MANAGEMENT, LLC, a Delaware limited liability company, APOLLO MANAGEMENT VI, L.P., a Delaware limited partnership, and CEVA GROUP, PLC, Defendants, Case No. 3:17-cv-891-TJC-MCR (M.D. Fla.), Judge Timothy J. Corrigan of the U.S. District Court for the Middle District of Florida, Jacksonville Division, denied the Defendants' Joint Motion for Summary Judgment. Plaintiff McEvoy began working Ryder Truck Lines in 1972. He soon transitioned to a company called Customized Transportation, which was acquired by CSX, which in turn was sold to TNT Logistics, which Apollo purchased and merged with EGL, Inc. to form CEVA Logistics in 2006. CEVA Logistics is a subsidiary of CEVA Group, a global freight management and supply chain logistics company. CEVA Group itself was 99.9 percent owned by CEVA Investments Limited ("CIL"), a Cayman Islands corporation, until 2013. Apollo "held the vast majority of CIL's preferred and common shares." Upon CEVA Logistics' formation, management-level employees from TNT and EGL, including McEvoy ("Management Investors"), were asked to purchase equity in the Cayman Islands company that became CIL. They did so through a fund called the 2006 Long-Term Incentive Plan ("2006 LTIP"). The investment was to "increase directors and employees' personal interest in CIL's growth and success." McEvoy invested approximately €10,000 in the 2006 LTIP. He received and reviewed the 2006 LTIP Agreement when he invested. According to Marvin Schlanger, the CEO of CEVA Group from 2012 to 2014, due to financial problems in "mid-2012 into 2013," "CEVA Group's management determined that CEVA's only choice for survival was a financial restructuring." In April 2013, CEVA Group performed a "major debt-for-equity exchange" ("2013 Transaction"). It converted much of CIL's debt into equity ownership of a new entity called CEVA Holdings, LLC, diluting CIL's ownership of CEVA Group. The transaction led to the de-valuation of CIL's ownership of CEVA Group from 99.9% to .01%, effectively wiping out all previous investment in CIL, including the 2006 LTIP shares' value. On April 2, 2013, CIL entered provisional liquidation proceedings in the Cayman Islands. Three holders of CIL's unsecured debt filed an uncontested involuntary Chapter 7 petition against CIL in the U.S. Bankruptcy Court for the Southern District of New York on April 22, 2013, which the Bankruptcy Court granted, appointing a Chapter 7 Trustee. On Dec. 8, 2014, the Trustee filed a complaint in the Bankruptcy Proceeding against CIL directors Gareth Turner and Mark Beith, CEVA Group, and CEVA Holdings, alleging that Apollo orchestrated a fraudulent transfer of CIL's interest in CEVA Group to CEVA Holdings without consideration. The complaint alleged that "Apollo engineered, directed and caused a secretive transaction that divested CIL of CEVA Group, its primary asset, for no consideration, while leaving behind CIL's liabilities and rendering CIL insolvent." Creditors have also filed direct claims against CEVA Logistics AG in New York Supreme Court in 2019, an action that, as of the Court's last update, has been stayed. In December 2012, CEVA Logistics informed McEvoy that due to general cutbacks, he would be laid off in March 2013. He exercised his put rights to sell his 2006 LTIP shares at their present value on Jan. 21, 2013, and was informed the following day that they could be purchased back on April 1, 2013, and that their most recent value was approximately €50 per share. His last day at CEVA was March 31, 2013. CEVA Logistics temporarily re-hired him as an independent contractor from October through December 2013 to help start a new logistics contract. Between 2013 and 2017, McEvoy discussed his loss multiple times, including with an attorney who advised him not to pursue a case, and with present and former CEVA employees. On Aug. 3, 2017, McEvoy filed a putative class action lawsuit ("Original Complaint") in the Court against Apollo Global Management, Turner, and Beith for losses, alleging self-dealing and fraudulent conversion. The Trustee filed a motion in the New York Bankruptcy Court to enjoin McEvoy's case on Oct. 18, 2017, arguing the claims McEvoy asserted were derivative claims that were property of CIL's estate. The Bankruptcy Court agreed, declaring McEvoy's putative class action in the Court "null and void ab initio." McEvoy moved the Bankruptcy Court to permit him to amend his complaint to assert direct claims, proposing an amended complaint that excluded defendants Turner and Beith and added Defendants CEVA Group and Apollo Management VI. On Oct. 16, 2018, the New York Bankruptcy Court allowed McEvoy to file the proposed amended complaint. On Dec. 7, 2018, McEvoy filed the Amended Class Action Complaint in the Court, alleging total losses of approximately €30 million. In addition to naming new defendants, the Amended Complaint alleges a new injury: That the named Defendants caused alleged class members "to not receive, or not equally receive, a required adjustment" as part of CEVA's 2013 restructuring. The Amended Complaint raised one claim under the Investment Advisors Act that the Court dismissed. The Defendants' Motion for Summary Judgment on the statute of limitations alone is now ripe. Analysis A. Statute of Limitations Under the terms of the 2006 LTIP Agreement, Delaware law governs this dispute. The applicable statute imposes a three-year limitations period on claims for breach of fiduciary duty. The general law in Delaware is that the statute of limitations begins to run, i.e., the cause of action accrues, at the time of the alleged wrongful act, even if the plaintiff is ignorant of the cause of action." Judge Corrigan determines that for the purposes of the Order on the statute of limitations, McEvoy's cause of action alleged in the Amended Complaint accrued under Delaware law on June 11, 2013, the date the 2013 LTIP became effective. Absent tolling, the limitations period expired on June 11, 2016. Because the New York Bankruptcy Court declared the Original Complaint void ab initio, the Defendants argue that the filing date is that of the Amended Complaint, Dec. 7, 2018. McEvoy argues that because the New York Bankruptcy Court permitted him to amend, the operative date of filing should be that of the Original Complaint on Aug 3, 2017. Judge Corrigan finds that on Nov. 30, 2017, McEvoy informed the New York Bankruptcy Court that if not for the stay, he would file an Amended Complaint incorporating allegations relating to the 2013 LTIP in the Court. At that point, the Defendants had notice of McEvoy's new claims, but McEvoy could not file an amended complaint until the Bankruptcy Court permitted him to do so, which it did not do until October 2018. Therefore, the Judge will constructively treat the date of filing of the operative Amended Complaint in the Court as Nov. 30, 2017. As the date of filing of the Amended Complaint is Nov. 30, 2017, well after the date of expiration of the statute of limitations on June 11, 2016, McEvoy must allege and prove that his claim was tolled from June 11, 2013 to at least Nov. 30, 2014 to be timely. B. Tolling Doctrines Delaware has three doctrines that toll the statute of limitations: (1) inherently unknowable injuries; (2) fraudulent concealment; and (3) equitable tolling. McEvoy argues that "any or all theories available" apply. Based on the record before the Court on the motion for summary judgment, Judge Corrigan holds that a reasonable jury could find that there was fraudulent concealment because the Defendants used "actual artifice" to prevent McEvoy from learning of his injury. He says there is some evidence that the Defendants attempted to conceal the existence of the 2013 LTIP from non-participating Management Investors. While much of McEvoy's fraudulent concealment argument relies on edits to the April 17, 2013 question and answer document, which McEvoy did not even recall reading, the document sheds light on CEVA executives' communications strategy and purposeful concealment of the 2013 LTIP to non-participating Management Investors. There is a genuine question of material fact as to whether there was actual artifice in concealing the creation of the 2013 LTIP that precludes summary judgment. Finally, Judge Corrigan finds that the doctrine of equitable tolling requires that the plaintiff "reasonably relied upon the competence and good faith of a fiduciary" until he had notice of his claim. Underlying this doctrine is the idea that even an attentive and diligent investor relying, in complete propriety, upon the good faith of fiduciaries may be completely ignorant of transactions that constitute self-interested acts injurious" to the plaintiff. The Court has not heard argument on whether the Defendants acted as fiduciaries to McEvoy and other Management Investors. Therefore, the issue is not ripe for summary judgment. C. Inquiry Notice All three tolling doctrines only toll the statute of limitations until the plaintiff is on "inquiry notice." Inquiry notice takes place "upon the discovery of facts constituting the basis of the cause of action." Judge Corrigan holds that a losing an investment would not necessarily put a reasonable investor on notice that others who had lost theirs were being given an opportunity to recover some of their lost value, especially in the face of repeated statements that CIL was worthless or that all other investors had lost all value. McEvoy was not a shareholder in CEVA Holdings and therefore cannot necessarily be expected to review its financial reports. The existence of one news article -- especially one in a foreign, online news source that had only existed for a year -- is not sufficient grounds to rule as a matter of law that McEvoy was on inquiry notice. The Court is not prepared to rule as a matter of law that McEvoy was on inquiry notice as to his 2013 LTIP claims prior to Nov. 30, 2014. There are triable issues of material fact as to whether tolling applies to McEvoy's injury, and if so, when he was on inquiry notice. Order Accordingly, Judge Corrigan denied the Defendants' Joint Motion for Summary Judgment. The Plaintiff will file a Second Amended Class Action Complaint that alleges the basis for his tolling arguments no later than July 23, 2021. The Defendants will respond to the Second Amended Class Action Complaint no later than Aug. 20, 2021. If so advised, they may renew their motions to dismiss on grounds not addressed in the Court's previous Order. The Court will wait to require a Case Management and Scheduling Report until the pleadings are settled. A full-text copy of the Court's June 29, 2021 Order is available at https://tinyurl.com/2e8dkmdp from Leagle.com. ARRAY TECHNOLOGIES: Levi & Korsinsky Reminds of July 13 Deadline ---------------------------------------------------------------- Levi & Korsinsky, LLP on June 29 disclosed that class action lawsuits have commenced on behalf of shareholders of the following publicly-traded companies. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court. Further details about the cases can be found at the links provided. There is no cost or obligation to you. ARRY Shareholders Click Here: https://www.zlk.com/pslra-1/array-technologies-inc-information-request-form?prid=17239&wire=1 PRVB Shareholders Click Here: https://www.zlk.com/pslra-1/provention-bio-inc-loss-submission-form?prid=17239&wire=1 OCGN Shareholders Click Here: https://www.zlk.com/pslra-1/ocugen-inc-information-request-form?prid=17239&wire=1 * ADDITIONAL INFORMATION BELOW * Array Technologies, Inc. (NASDAQ:ARRY) This lawsuit is on behalf of investors who purchased ARRY: (a) between October 14, 2020, and May 11, 2021, inclusive and (b) pursuant, or traceable, or both, to: (i) the registration statement and prospectus issued in connection with the Company's October 2020 initial public offering; or (ii) the registration statement and prospectus issued in connection with the Company's December 2020 offering; or (iii) any combination of the initial public offering, December 2020 offering, or March 2021 offering. Lead Plaintiff Deadline: July 13, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/array-technologies-inc-information-request-form?prid=17239&wire=1 Defendants repeatedly and consistently painted a materially misleading picture of the Company's business and prospects that did not reflect rising steel and freight costs. After the October 2020 initial public offering, the December 2020 offering and the March 2021 offering, and subsequent to the class period, Array disclosed that it was experiencing increases in steel prices and substantial increases in the cost of both ocean and truck freight that in turn were having a material impact on its margins for the foreseeable future. This caused Array to miss profit expectations and withdraw its full-year outlook. As a result of Defendants' wrongful acts and omissions and the precipitous decline in the market value of the Company's securities, shareholders have suffered significant losses and damages. Provention Bio, Inc. (NASDAQ:PRVB) PRVB Lawsuit on behalf of: investors who purchased November 2, 2020 - April 8, 2021 Lead Plaintiff Deadline: July 20, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/provention-bio-inc-loss-submission-form?prid=17239&wire=1 According to the filed complaint, during the class period, Provention Bio, Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) the teplizumab Biologics License Application ("BLA") was deficient in its submitted form and would require additional data to secure U.S. Food and Drug Administration 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. Ocugen, Inc. (NASDAQ:OCGN) OCGN Lawsuit on behalf of: investors who purchased February 2, 2021 - June 10, 2021 Lead Plaintiff Deadline: August 17, 2021 TO LEARN MORE, VISIT: https://www.zlk.com/pslra-1/ocugen-inc-information-request-form?prid=17239&wire=1 According to the filed complaint, during the class period, Ocugen, Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) the information submitted to the U.S. Food and Drug Administration ("FDA") was insufficient to support an Emergency Use Authorization ("EUA"), (ii) Ocugen would not file an EUA with the FDA, (iii) as a result of the foregoing, the Company's financial statements, as well as Defendants' statements about Ocugen's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. You have until the lead plaintiff deadlines to request that the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Eduard Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] ATHIRA PHARMA: Kessler Topaz Reminds of August 24 Deadline ---------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on June 29 disclosed that securities fraud class action lawsuits have been filed in the United States District Court for the Western District of Washington against Athira Pharma, Inc. (NASDAQ: ATHA) ("Athira") on behalf of those who purchased or acquired Athira common stock: a) pursuant and/or traceable to the registration statement and prospectus (collectively, the "Registration Statement") issued in connection with Athira's September 2020 initial public offering ("IPO"); and/or b) between September 18, 2020 and June 17, 2021, inclusive (the "Class Period"). Deadline Reminder: Investors who purchased or acquired Athira common stock pursuant to or traceable to the IPO and/or during the Class Period may, no later than August 24, 2021, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please contact Kessler Topaz Meltzer & Check, LLP: James Maro, Esq. (484) 270-1453 or Adrienne Bell, Esq. (484) 270-1435; toll free at (844) 887-9500; via e-mail at info@ktmc.com; or click https://www.ktmc.com/athira-pharma-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=athira Athira is a late-stage clinical biopharmaceutical company that focuses on developing small molecules to restore neuronal health and stop neurodegeneration. On September 18, 2020, Athira filed its prospectus on a Form 424B4, which forms part of the Registration Statement. In the IPO, Athira sold approximately 13,397,712 shares of common stock at a price of $17.00 per share. Athira received proceeds of approximately $208.5 million from the IPO, net of underwriting discounts and commissions. According to the complaints, on June 17, 2021, after the market closed, Athira announced in a press release that it had placed its president and Chief Executive Officer, Dr. Leen Kawas, on leave pending a review of actions stemming from doctoral research she conducted while at Washington State University ("WSU"). According to Athira's press release, Athira's Board "formed an independent special committee to undertake this review." The same day, the scientific publication STAT published an article stating that WSU was investigating claims that Dr. Kawas "published several papers containing altered images while she was a graduate student." These papers "are foundational to Athira's efforts to treat Alzheimer's" because they "established that a particular molecule affects the activity of HGF." Though Athira is developing a different molecule than the one Dr. Kawas examined in the papers at issue, her "doctoral work laid the biological groundwork that Athira continues to use in their approach to treating Alzheimer's." Specifically, "[i]mages of Western blots, used to determine the presence of specific proteins in biological samples, look as though they've been altered from their original state." According to experts cited in the article, "If the Western blots are inaccurate, then the whole study must be redone." Following this news, Athira's share price fell $7.09, or approximately 39%, to close at $11.15 per share on June 18, 2021. The complaints allege that in the Registration Statement and/or throughout the Class Period the defendants made materially false and misleading statements and omitted to state that: (1) Dr. Kawas had published research papers containing improperly altered images while she was a graduate student; (2) this purported research was foundational to Athira's efforts to develop treatments for Alzheimer's because it laid the biological groundwork that Athira was using in its approach to treating Alzheimer's; (3) as a result, Athira's intellectual property and product development for the treatment of Alzheimer's was based on invalid research; and (4) as a result of the foregoing, the defendants' positive statements about Athira's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. Athira investors may, no later than August 24, 2021, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check, LLP prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check, LLP. For more information about Kessler Topaz Meltzer & Check, LLP please visit www.ktmc.com. CONTACT: Kessler Topaz Meltzer & Check, LLP James Maro, Jr., Esq. Adrienne Bell, Esq. 280 King of Prussia Road Radnor, PA 19087 (844) 887-9500 (toll free) info@ktmc.com [GN] ATHIRA PHARMA: Schall Law Firm Reminds of August 20 Deadline ------------------------------------------------------------ The Schall Law Firm, a national shareholder rights litigation firm, on June 28 announced the filing of a class action lawsuit against Athira Pharma, Inc. ("Athira" or "the Company") (NASDAQ: ATHA) for violations of the federal securities laws. Investors who purchased the Company's shares pursuant and/or traceable to the Company's initial public offering conducted in September 2020 (the "IPO"), or between September 18, 2020 and June 17, 2021, both dates inclusive (the "Class Period"), are encouraged to contact the firm before August 20, 2021. We also encourage you to contact Brian Schall of the Schall Law Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at 310-301-3335, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Research performed by Athira CEO and President Leen Kawas was tainted by scientific misconduct. Kawas allegedly engaged in the manipulation of key data in the research through the manipulation of Western blot images. The tainted research was of critical importance to the Company's efforts to develop treatments for Alzheimer's. The Company's research and development efforts were based on invalid data. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Athira, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and rules of ethics. Contacts: The Schall Law Firm Brian Schall, Esq., www.schallfirm.com Office: 310-301-3335 info@schallfirm.com [GN] BARCLAYS PLC: Sept. 13 Settlement Fairness Hrg. Set in Class Suit ----------------------------------------------------------------- SUMMARY NOTICE OF PROPOSED CLASS ACTION SETTLEMENTS If you entered into a Mexican Government Bond Transaction from January 1, 2006 through and including April 19, 2017 ("Class Period"), your rights may be affected by pending class action settlements and you may be entitled to a portion of the settlement fund. This Summary Notice is to alert you to proposed settlements totaling $20,700,000 reached with Barclays PLC, Barclays Bank PLC, Barclays Capital Inc., Barclays Capital Securities Limited, Barclays Bank Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero Barclays Mexico, and Grupo Financiero Barclays Mexico, S.A. de C.V. (collectively "Barclays") and JPMorgan Chase & Co., J.P. Morgan Broker-Dealer Holdings Inc., J.P. Morgan Securities LLC, JPMorgan Chase Bank, National Association, Banco J.P. Morgan, S.A. Institucion de Banca Multiple, J.P. Morgan Grupo Financiero, and J.P. Morgan Securities plc (collectively "JPMorgan," and with Barclays, the "Settling Defendants"). Barclays and JPMorgan deny any liability, fault, or wrongdoing of any kind in connection with the allegations in the Action. The United States District Court for the Southern District of New York (the "Court") authorized this Notice. The Court has appointed the lawyers listed below to represent the Settlement Class in the Action: Vincent Briganti Lowey Dannenberg, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 733-7221 vbriganti@lowey.com Who Is a Member of the Settlement Class? Subject to certain exceptions, the proposed Settlement Class consists of all Persons that entered into a Mexican Government Bond Transaction at any time between at least January 1, 2006 and April 19, 2017, where such persons were either domiciled in the United States or its territories or, if domiciled outside the United States or its territories, transacted in the United States or its territories. "Mexican Government Bond Transaction" means any purchase, sale, or exchange of Mexican Government Bonds, whether in the primary, secondary, or any other market. "Mexican Government Bonds" means any debt securities issued by the United Mexican States ("Mexico"), that are Mexican Peso-denominated, including, but not limited to, CETES, Bondes D, UDIBONOS, and BONOS. The other capitalized terms used in this Summary Notice are defined in the detailed Notice of Proposed Class Action Settlements, September 13, 2021 Fairness Hearing Thereon and Class Members' Rights ("Notice") and the Settlement Agreements, which are available at www.MGBAntitrustSettlement.com. If you are not sure if you are included in the Settlement Class, you can get more information, including the detailed Notice, at www.MGBAntitrustSettlement.com or by calling toll-free 1-877-829-2941 (if calling from outside the United States or Canada, call 1-414-961-6592). What Is This Lawsuit About and What Do the Settlements Provide? Plaintiffs allege that each Defendant, including Barclays and JPMorgan, conspired during the Class Period to fix the prices for Mexican Government Bonds ("MGBs"). Defendants allegedly rigged MGB primary market auctions to buy large volumes of newly issued MGBs at artificially low prices. Each Defendant then allegedly sold these newly issued MGBs into the secondary market at artificially high, price-fixed terms to uninformed market participants like Plaintiffs and the Settlement Class. Defendants also allegedly agreed to fix the "bid-ask spread," suppressing the price at which Defendants offered to buy MGBs from market participants and increasing the price at which Defendants offered to sell MGBs to market participants. Plaintiffs have asserted legal claims under the federal antitrust law and the common law. Barclays and JPMorgan deny each and every allegation and claim asserted by Plaintiffs in this lawsuit and believe they would have prevailed if the case were to proceed against them. To settle the claims in this lawsuit, Barclays has agreed to pay a total of $5.7 million and JPMorgan has agreed to pay a total of $15 million (the "Settlement Funds") in cash for the benefit of the proposed Settlement Class. If the Settlements are approved, the Settlement Funds, plus interest earned from the date it was established, less any Taxes, any Notice and Administration Costs, any Court-awarded attorneys' fees, payment of litigation costs and expenses, and service awards for Plaintiffs, and any other costs or fees approved by the Court (the "Net Settlement Fund") will be divided among all Settlement Class Members who file valid Proofs of Claim and Release. Will I Get a Payment? If you are a member of the Settlement Class and do not opt out, you will be eligible for a payment under the Settlements if you file a Proof of Claim and Release ("Claim Form"). You also may obtain more information at www.MGBAntitrustSettlement.com or by calling toll-free 1-877-829-2941 (if calling from outside the United States or Canada, call 1-414-961-6592). Claim Forms must be submitted online at www.MGBAntitrustSettlement.com on or before 11:59 p.m. Eastern time on October 13, 2021 OR mailed and postmarked by October 13, 2021. What Are My Rights? If you are a member of the Settlement Class and do not opt out, you will release certain legal rights against Settling Defendants and the other Released Parties, as explained in the detailed Notice and Settlement Agreements, which are available at www.MGBAntitrustSettlement.com. If you do not want to take part in these Settlements, you must opt out by August 9, 2021. You may object to these Settlements, Distribution Plan, and/or application for an award of attorneys' fees, payment of litigation costs and expenses, and/or service awards for Plaintiffs. If you want to object, you must do so by August 9, 2021. Information on how to opt out or object is contained in the detailed Notice, which is available at www.MGBAntitrustSettlement.com. When Is the Fairness Hearing? The Court will hold a hearing at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, Courtroom 706, New York, NY 10007, on September 13 at 3 P.M. to consider whether to finally approve these Settlements, Distribution Plan, and application for an award of attorneys' fees, payment of litigation costs and expenses, and any service awards for Plaintiffs. You or your lawyer may ask to appear and speak at the hearing at your own expense, but you do not have to. For more information, call toll-free 1-877-829-2941 (if calling from outside the United States or Canada, call 1-414-961-6592) or visit www.MGBAntitrustSettlement.com. **** Please do not call the Court or the Clerk of the Court for information about the Settlements. **** CABRILLO CREDIT: Loses Bid to Compel Arbitration in Cortes Suit --------------------------------------------------------------- The U.S. District Court for the Southern District of California denies the Defendant's amended motion to compel arbitration in the lawsuit styled CESAR CORTES individually, and on behalf of all others similarly situated, Plaintiff v. CABRILLO CREDIT UNION, and DOES 1 through 5, inclusive, Defendant, Case No. 20CV2375-GPC (DEB) (S.D. Cal.). Plaintiff Cesar Cortes filed a putative class action complaint against Defendant Cabrillo Credit Union alleging violations of the Electronic Fund Transfer Act and violation of California's Unfair Competition Law, California Business & Professions Code Section 17200. Around Oct. 23, 2017, the Plaintiff visited the Cabrillo Credit Union to obtain an auto loan. In order to obtain a loan, the Defendant required that an account be opened. Cortes opened the required accounts, including a checking account, and signed a membership application. The Truth in Savings Disclosure and Agreement ("Agreement") is a standard form and according to the Defendant's practice and policy, it is given to each new member when opening an account and signing a membership application. The Agreement contains an arbitration clause stating, in the event a dispute arises under this Agreement or with respect to the obligation of either party under this Agreement, the issue will be submitted to binding arbitration under the rules then prevailing of the American Arbitration Association and the judgment upon the aware may be entered and enforced in any court of competent jurisdiction. The Plaintiff asserts he was not provided the Agreement and no representative of the Defendant discussed the Agreement with him. Analysis The Defendant moves to compel arbitration of the Plaintiff's individual claims because he agreed to arbitrate all disputes by way of the Truth in Savings Disclosure and Agreement ("Agreement") that is given to all customers when an account is opened. The Plaintiff responds that there was no agreement to arbitrate because he was unaware of the Agreement and did not consent to arbitration. In this case, the parties dispute whether the Plaintiff was given the Agreement when he opened his account and whether he assented to the arbitration provision contained in the Agreement. According to the Defendant, the Agreement is a standard form given to every customer when they open an account. In 2017, it was the Defendant's policy to provide the Agreement to the customer prior to signing the membership application. Customers are advised to review the Agreement and inquire with any questions and each new customer agrees to abide by the terms and conditions of the Agreement. Based on this, the Defendant maintains that when the Plaintiff signed the membership application, he opened an account and expressly agreed to the terms and conditions of the Agreement. In response, the Plaintiff states, to his knowledge, that when he opened his account, no representative of the Defendant provided him or discussed with him a document called the "Truth in Savings Disclosure and Agreement." The folder of materials he received from the Cabrillo representative, who assisted with his loan, also did not contain the Agreement. The Plaintiff states he was unaware that he would be required to arbitrate any claims concerning his account and he did not enter into any agreement with the Defendant to arbitrate any legal claims he might have pursuant to his account. While the Plaintiff signed the 2017 membership application, it does not contain an arbitration agreement. The membership application also does not incorporate by reference the Agreement, which contains the arbitration clause. Besides company practice and policy, the Defendant does not provide any evidence that it provided the Plaintiff with the Agreement and that he assented to the terms in the Agreement on the day he opened his account. The Defendant's representative even testified that there is no documentation that shows the Plaintiff actually received the Agreement or that he agreed to be bound by it. Therefore, because the Defendant has failed to offer evidence that the Plaintiff was given the Agreement and assented to the terms in the Agreement, the Defendant has failed to demonstrate by a preponderance of the evidence that there was an agreement to arbitrate. Accordingly, because there was no agreement to arbitrate, the Court denies the Defendant's motion to compel arbitration. Conclusion Based on the foregoing, the Court denies the Defendant's motion to compel arbitration. The hearing set for July 2, 2021, was vacated. A full-text copy of the Court's Order dated June 24, 2021, is available at https://tinyurl.com/uz2xaxjm from Leagle.com. CALIFORNIA: Court Tosses Hill's COVID-19 Related Suit ----------------------------------------------------- The U.S. District Court for the Northern District of California directs the Clerk of Court to close/terminate the lawsuit styled In re BRIAN T. HILL, H67149, Plaintiff, Case No. 21-cv-04066-CRB (PR) (N.D. Cal.). On May 28, 2021, the Clerk of Court filed as a new action a pleading from the Plaintiff complaining about the COVID-19 related shortcomings at the California Men's Colony (CMC) in San Luis Obispo. The Court notified the Plaintiff in writing at that time that the action was deficient because the Plaintiff did not file an actual complaint or pay the requisite $402 filing fee or, instead, submit a signed and completed court-approved in forma pauperis (IFP) application, including a completed certificate of funds in the prisoner's account and a copy of the prisoner's trust account statement for the last six months. The Court sent the Plaintiff a blank prisoner complaint and IFP forms and advised him that failure to file the requested items within 28 days would result in dismissal of the action. On June 19, 2021, the Plaintiff filed a letter clarifying that he "did not intend to file a new action." He instead appears to have intended to bring to the attention of Judge Jon Tigar, who is overseeing a class action regarding overcrowding and other conditions in the state prisons, the COVID-19 related shortcomings at CMC. The Clerk is directed to close/terminate this action as improvidently opened/filed and to send a copy of the Plaintiff's May 28, 2021 pleading to class counsel in Plata v. Newsom, 01-cv-01351-JST. No filing fee for this improvidently opened/filed action is due. The Plaintiff is reminded that, if he wishes, he may file an individual action concerning COVID-19 related shortcomings at CMC in federal court. But because CMC is in San Luis Obispo County, such action should be filed in the U.S. District Court for the Central District of California, Western Division. A full-text copy of the Court's Order dated June 24, 2021, is available at https://tinyurl.com/e7sr97c9 from Leagle.com. CANADA: Marten Falls First Nation Joins Water Class Action ---------------------------------------------------------- Marten Falls First Nation has agreed to join the class-action litigation on drinking water advisories in First Nation communities, which will be led by Olthuis, Kleer, Townshend (OKT) LLP and McCarthy Tetrault LLP. Marten Falls has decided to participate in this class-action lawsuit because it has been under a boil water advisory for over 20 years. The lack of potable water in the community has resulted in illness, an unnecessary loss of opportunities amongst community members, and a burdensome distribution process. The administration of clean drinking water to community members has been onerous. Bottled water is flown into the community and distributed to community members at the airport. Marten Falls is responsible for paying the upfront costs of these water resources and their transportation, which can cost up to $40,000 per month. Although the federal government reimburses Marten Falls for these expenses, the cost of buying and transporting water puts a significant strain on the community's limited financial resources. The reimbursement process is also slow and partial since the community shares water with non-band members in the community like teachers, contractors, and guest workers who are not covered. To put this into perspective, from 2014-2015, Marten Falls had to wait an entire fiscal year to be reimbursed for its bottled water. In addition to upfront costs, the distribution process also poses challenges for accessibility and waste management. In regard to accessibility, the airport is not easily accessible by all community members, since not all community members have access to means of transportation. For those who are fortunate enough to have means of transportation, they still experience accessibility issues when faced with treacherous travel conditions due to bad weather. As for waste management, it has become increasingly difficult to manage the plastic waste that comes from heavy bottled water usage. Marten Falls does not have a recycling facility, nor are there any nearby. This means that used water bottles are either burnt or buried at the landfill, where they decompose and leach hazardous chemicals into the groundwater. The objective of this class-action is two-fold. First, it sets out to obtain compensation for First Nations affected by drinking water advisories. Second, it endeavours to obtain a declaration from Canada that it will work with First Nations to provide access to clean water, which includes requiring Canada to construct and fund water systems for communities. The Chief and Council of Marten Falls believe that by participating in this legal challenge, the community's water crisis can finally come to an end for the long-term. Marten Falls has suffered enough, and the community's infrastructure issues need support and long-term operations and maintenance commitments. Marten Falls faces other long-standing issues that relate directly to the neglect of infrastructure in First Nations communities, as the boil water advisory example illustrates. One of the greatest challenges that Marten Falls faces to date is a lack of critical community infrastructure. The community has faced many challenges associated with its water treatment facility and lack of transportation infrastructure, housing, communal buildings, and community-based apparatus. Although issues with the water treatment facility are being resolved and transportation infrastructure is slowly being addressed through community participation in the Ring of Fire infrastructure projects, Marten Falls continues to chronically lack housing and firefighting infrastructure. Marten Falls is in the midst of a chronic housing shortage. The community's housing program is stagnant and there are no plans for housing development on the horizon. Multigenerational living is on the rise in the community (2 to 3 generations per household) because of limited housing options. There has also been an increase in the community's homeless population, since Marten Falls does not have enough housing options (including communal buildings) for its community members. To complicate matters, numerous house fires have recently taken place. These incidents highlight a lack of critical infrastructure appropriations needed for a community fire hall, fire truck and related apparatus to ensure community safety and well-being. On the topic of housing and fire service infrastructure, Chief Bruce Achneepineskum says: "I have been lobbying the federal government for critical housing and fire infrastructure for years. Recently, I spoke about the critical issue of no firefighting resources in our community at the 2019 Chiefs of Ontario meeting. We already have a housing crisis and when there is a fire, our existing houses burn down and jeopardize the life of our membership. We can only stand by and watch our houses burn. This is our situation in the 21st century and we can't even respond to a fire with a firetruck. Fires make the lack of housing situation worse, making homelessness another critical community challenge. These are related issues, and we cannot ignore them. This must change. The status quo is just not acceptable." Overall, there is simply no movement towards accommodating community growth and development, and the federal government is to blame. The Government of Canada is responsible for housing in the community, but they have done little to help Marten Falls. Moreover, the recent pilot project that took place in the community, and the subsequent documentary on the project, propagated that Marten Falls' housing crisis had been resolved when it was not. The purported success of the project is completely disconnected from the reality that the community faces. Funding allocations reflect the commitments of a government. Funding for the housing pilot project was inadequate, came with allocation inequity between First Nations, never delivered the staff training and capacity it was supposed to, and to make matters worse the project was abandoned before completion. The bottom line is that Marten Falls has resource-rich lands with valuable minerals, and yet, the community continues to live in poverty. This needs to change. The community has started to exercise its own jurisdiction by leading development in the Ring of Fire region. It is on its way to achieving a sustainable future, through a vision of economic reconciliation and an expected renewed commitment to our treaty promises. Our treaty partners, Canada and Ontario, must live up to their promises of reconciliation by addressing the crises that plague the reserve, which is a function of the dated Indian Act and is in need of complete overhaul to establish government-to-government relations and stop the propagation of segregation and assimilation policies. Marten Falls calls on the Government of Canada to provide Marten Falls First Nation with more housing and infrastructure appropriations, based on the federal government's current responsibility towards our First Nation and our treaty relationship. Additionally, more needs to be done on Indigenous Services Canada's part to work collaboratively with Marten Falls to improve community infrastructure. These improvements will help address the inequitable socio-economic conditions found within the community and immediate community needs. The Assembly of First Nations (AFN), Chiefs of Ontario (COO) and Nishnawbe Aski Nation (NAN) should also focus more of their attention on housing and homelessness to ensure that life on-reserve improves. These are systemic issues, and they require the attention of Canadian governments and Indigenous organizations. The governments of Canada and Ontario must come to the table on these issues with our governments. Marten Falls also expects to see policy whitepapers and recommendations from these Indigenous organizations to help resolve the housing crisis, fire service infrastructure crisis, and homelessness within our community and across Indigenous communities in Canada. Finally, the community's leadership wants to hear back from Indigenous Services Minister, Marc Miller to start a dialogue on a path forward immediately. [GN] CENTRA TECH: Denial of Class Certification in Rensel Suit Vacated ----------------------------------------------------------------- In the case, JACOB ZOWIE THOMAS RENSEL, individually and on behalf of all others similarly situated, WANG YUN HE, CHI HAO POON, KING FUNG POON, JAE J. LEE, MATEUSZ GANCZREK, RODNEY WARREN, Plaintiffs-Appellants v. CENTRA TECH, INC., Defendant-Appellee, SOHRAB SHARMA, et al., Defendants, Case No. 20-10894 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit vacates the district court's order denying the Plaintiffs' motion for class certification and remands for further proceedings. Riding the recent wave of enthusiasm for cryptocurrencies, Centra Tech got off to a fast start. Centra Tech promised to market the Centra Wallet, a digital wallet for storing different kinds of cryptocurrencies, and the Centra Card, a Visa and Mastercard-backed debit card that would allow users to make everyday purchases with cryptocurrencies. To raise funds to develop these products, Centra Tech held an initial coin offering ("ICO") between July 2017 and April 2018. The ICO involved the sale of Centra Tokens, which entitled the holder to certain rights related to Centra Tech -- in other words, Centra Tokens were securities similar to the stock sold at an initial public offering. Centra Tech enlisted the promotional services of longtime world championship boxer Floyd Mayweather Jr. and double-platinum-selling hip-hop producer DJ Khaled to publicize the ICO to potential investors. Apparently impressed, thousands of investors participated in the ICO to enable Centra Tech to raise $32 million. But Centra Tech's fortunes -- and those of its investors -- soon crashed. Centra Tech, it turned out, had not been truthful with the ICO purchasers. For one thing, Visa and Mastercard had not actually signed on to support the Centra Card. Nor were its digital currency holdings insured, despite assurances otherwise. Centra Tech also tried to boost its investor appeal by listing fake executives. Its personnel even fabricated a LinkedIn profile for the fictional "Michael Edwards," who was supposedly a Harvard professor and Centra Tech co-founder. Centra Tech's real-life founders, Sohrab Sharma, Raymond Trapani, and Robert Farkas pled guilty to criminal securities and wire fraud charges in the Southern District of New York; the SEC also sued them for securities fraud -- United States v. Sharma et al., No. 18-cr-340-LGS, ECF Nos. 152, 427, 470 (S.D.N.Y.); S.E.C. v. Sharma et al., No. 18-cv-2909-DLC, ECF (S.D.N.Y.). The SEC action remains stayed pending final resolution of the criminal case (Trapani, who cooperated with the government, has not yet been sentenced). ICO investor Rensel filed the instant suit against Centra Tech and some of its principals in the Southern District of Florida on Dec. 13, 2017. He alleged the sale of unregistered securities in violation of Sections 12(a)(1) and 15(a) of the Securities Act of 1933 (15 U.S.C. Sections 77l(a)(1), 77o(a)). The Defendants moved to dismiss on Feb. 2, 2018, triggering an automatic stay on "all discovery and other proceedings" under the Private Securities Litigation Reform Act of 1995 ("PSLRA"). Rensel (together with Wang Yun He, who had been named co-lead Plaintiff) moved for leave to file an amended complaint on May 29, 2018. On Sept. 25, 2018, the district court granted this motion and simultaneously denied the still-pending motion to dismiss as moot. Thus, the PSLRA automatic discovery stay lifted on September 25. But this pause was short lived. Rensel, together with He, Chi Hao Poon, King Fung Poon, Jae Lee, Mateusz Ganczarek, and Rodney Warren ("Plaintiffs") filed an amended class action complaint on Oct. 9, 2018. They repeated the unregistered securities claims from the first complaint and added allegations of material misrepresentations in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (15 U.S.C. Section 78j(b)) against Centra Tech; its founders Sharma, Trapani, and Farkas; its executives Steven Stanley, Steven Sykes, Allan Shutt, and Chase Zimmerman; and ICO promoters Mayweather and Khaled. Sykes, Mayweather, and Khaled moved to dismiss the amended complaint on Dec. 21, 2018. The PSLRA stay therefore kicked in once again on that day. Other Defendants filed motions to dismiss later: Stanley on Jan. 16, 2019 and Shutt on April 26. Earlier, on Nov. 19, 2018, the district court had ordered the parties to advise whether they preferred a standard or expedited case schedule (with outlines of each attached to the order), or whether they had good reasons to request a more protracted schedule. The parties timely responded with a Joint Discovery Plan and Status Report. The district court did not follow up with a scheduling order adopting its own or any party's proposed schedule; thus, the court never imposed a deadline for the Plaintiffs' class certification motion. At the Plaintiffs' request, the Clerk entered default against Centra Tech on Jan. 31, 2019 for failure to appear. The district court granted Sykes', Mayweather's, Khaled's, and Stanley's motions to dismiss in a May 1, 2019 omnibus order. But Shutt's motion to dismiss remained, and so, therefore, did the PSLRA stay. The Plaintiffs voluntarily dismissed their claims against Sharma, Trapani, Farkas, and Zimmerman on June 5, 2019, leaving Centra Tech and Shutt as the sole remaining defendants. On June 7, the district court ordered the Plaintiffs to advise the court whether they intended to pursue their claims against Shutt and to file a motion for default judgment against Centra Tech by June 20. The Plaintiffs voluntarily dismissed their claims against Shutt on June 7, and the district court denied Shutt's motion to dismiss as moot (also on June 7). At long last, no motions to dismiss remained pending, and the PSLRA discovery stay lifted once and for all. As ordered, the Plaintiffs moved for default judgment against Centra Tech on June 13, 2019. That same day, they moved to certify three subclasses of Centra Tech investors: Those who had purchased Centra Tokens from Centra Tech during the ICO between July 23 and Oct. 5, 2017; those who had done so between Oct. 6, 2017 and April 20, 2018; and those who had purchased Centra Tokens on the open market. The Plaintiffs proposed the following three subclasses: (1) All persons and entities who purchased CTR Tokens directly from Defendant Centra Tech during Centra Tech's official initial coin offering from approximately June 23, 2017 through Oct. 5, 2017; (2) All persons and entities who purchased CTR Tokens directly from Defendant Centra Tech during the remainder of Centra Tech's initial coin offering from approximately Oct. 6, 2017 through April 20, 2018; and (3) All persons and entities who purchased CTR Tokens on the open market as a result of Defendant Centra Tech successfully soliciting their purchases of CTR Tokens. Centra Tech opposed the motion, claiming, among other things, that the named Plaintiffs lacked standing and could not meet Federal Rule of Civil Procedure 23's requirements for certification because they could not adequately represent the class and did not possess claims typical of the class members. It also argued that the Plaintiffs had waived their rights to bring a class action by signing agreements governing the sale of their Centra Tokens. Centra Tech, however, did not even suggest that the Plaintiffs' motion for class certification should be denied because it was filed in an untimely manner. On Sept. 16, 2019, the district court denied the motion to certify the three subclasses, offering two alternative grounds for its decision. First, the district court relied on Rule 23(c)(1)(A)'s requirement that a class be certified "at an early practicable time" to hold that the Plaintiffs' certification motion -- filed 18 months after the initial complaint and six months after the amended complaint -- was untimely. Second, the court determined that the proposed subclasses failed to meet Rule 23's implicit ascertainability requirement because the Plaintiffs had not proposed an administratively feasible method of identifying absent class members. The Plaintiffs tried again on Oct. 1, 2019 with a renewed motion for class certification. This time, they devoted substantial argument to both timeliness and ascertainability. They explained that they had been waiting to move to certify the class until the lifting of the PSLRA automatic discovery stay allowed them to conduct certification-related discovery. The district court denied the renewed motion because, in its view, the Plaintiffs had not adduced "new evidence, changed circumstances, or new information about the class members' claims" sufficient to justify a renewed motion. Meanwhile, the parties had been litigating the Plaintiffs' court-ordered motion for default judgment against Centra Tech, which the district court granted on Dec. 13, 2019. The judgment ordered Centra Tech to pay damages to the named Plaintiffs based on their Centra Token holdings, which ranged from $350.10 in Rensel's case to $2,672,864.54 for He. The district court denied Centra Tech's motion for reconsideration on Feb. 3, 2020. With judgment now final, the Plaintiffs timely appealed the interlocutory orders denying their initial and renewed motions for class certification. The Eleventh Circuit holds that the Plaintiffs in the putative securities fraud class action filed a motion for class certification as early as they realistically could have, but the district court denied it as untimely. The Plaintiffs did not miss any rule-based or court-ordered deadline for their class certification motion. Nor did their timing cause prejudice to any party. The case calendar effectively deprived them of any opportunity to conduct discovery in support of class certification. Under the circumstances of this case, including the near omnipresence of an automatic discovery stay imposed by the Private Securities Litigation Reform Act whenever a motion to dismiss is pending -- in effect for just under 15 of the 18 months between the initial complaint and the Plaintiffs' certification motion -- the district court's timeliness holding was an abuse of discretion. The Eleventh Circuit further holds that the district court also erred when it denied certification on the alternative ground that the Plaintiffs had not established an administratively feasible method for identifying class members. Rule 23 implicitly requires that a proposed class be ascertainable; that is, the class must be "adequately defined such that its membership is capable of determination," citing Cherry v. Dometic Corp., 986 F.3d 1296, 1304 (11th Cir. 2021). But the Eleventh Circuit's recent decision in Cherry clarified that to meet this ascertainability requirement, the party seeking certification need not establish its ability to identify class members in a convenient or administratively feasible manner. Of course, considerations of administrative feasibility may still be relevant to Rule 23(b)(3)(D) manageability analysis. For these reasons, the Eleventh Circuit, therefore, vacates the district court's order denying the Plaintiffs' motion for class certification and remands for further proceedings. It also necessarily vacates the final judgment. The Eleventh Circuit does not disturb, however, the district court decisions not before it on appeal, such as its determinations about Centra Tech's liability to the named Plaintiffs. Nor does it express any view on the propriety of class certification in the case other than with respect to the timeliness and ascertainability holdings in its Opinion. A full-text copy of the Court's June 29, 2021 Opinion is available at https://tinyurl.com/txbf9saf from Leagle.com. CONTEXTLOGIC INC: Pomerantz LLP Reminds of July 16 Deadline ----------------------------------------------------------- Pomerantz LLP on June 30 disclosed that a class action lawsuit has been filed against ContextLogic Inc. ("ContextLogic" or the "Company") (NASDAQ: WISH) and certain of its officers. The class action, filed in the United States District Court for the Northern District of California, San Francisco Division, and docketed under 21-cv-05015, is on behalf of all persons and entities other than Defendants that purchased or otherwise acquired: (a) ContextLogic securities pursuant and/or traceable to the Company's initial public offering conducted on or about December 16, 2020 (the "IPO" or "Offering"); or (b) ContextLogic securities between December 16, 2020 and May 12, 2021, both dates inclusive (the "Class Period"). Plaintiff pursues claims against the Defendants under the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased ContexLogic common stock pursuant and/or traceable to the Company's December 16, 2020 IPO, ContextLogic securities between December 16, 2020 and May 12, 2021, you have until July 16, 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. ContextLogic operates as a mobile ecommerce company in Europe, North America, South America, and internationally. The Company operates the Wish platform that connects users to merchants and also provides marketplace and logistics services to merchants. The Company also generates fees by offering advertising and logistics services to its merchants, and Wish claims to have a user base of 100 million monthly active users ("MAUs") and 500,000 merchants. On November 20, 2020, ContextLogic filed a registration statement on Form S-1 with the SEC in connection with the IPO, which, after an amendment, was declared effective by the SEC on December 15, 2020 (the "Registration Statement"). On December 16, 2020, pursuant to the Registration Statement, ContextLogic's securities began trading on the NASDAQ Global Market under the symbol "WISH." On December 17, 2020, ContextLogic filed a prospectus on Form 424B4 with the SEC in connection with the IPO, which incorporated and formed part of the Registration Statement (collectively, the "Offering Documents"). The complaint alleges that the Offering Documents were negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and were not prepared in accordance with the rules and regulations governing their preparation. Additionally, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Offering Documents and Defendants made false and/or misleading statements and/or failed to disclose that: (i) ContextLogic's Q4 2020 MAUs had declined materially and were not then growing; (ii) accordingly, ContextLogic had materially overstated the Company's business metrics and financial prospects; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. On March 8, 2021, ContextLogic announced its Q4 2020 financial results. In a press release, the Company stated that, during Q4 2020 its MAUs declined 10% YoY during Q4 to 104 million, primarily in some emerging markets outside of Europe and North America where Wish temporarily de-emphasized advertising and customer acquisition as the company worked through logistics challenges it faced earlier in the year." On this news, ContextLogic's stock price fell $1.83 per share, or 10%, to close at $15.94 per share on March 8, 2021. Then, on May 12, 2021, ContextLogic announced its Q1 2021 financial results. The Company disclosed that its MAUs had declined another 7% to just 101 million. In addition, the Company's forward sales guidance also fell short, with its Q2 2021 revenue guidance of just $715 million to $730 million representing a significant departure from the $759 million the market had been led to expect and far less than the guidance of $735 to $750 million provided for Q1 2021. On this news, ContextLogic's stock price fell $3.36 per share, or 29%, to close at $8.11 per share on May 13, 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] CVS PHARMACY: IWL Files Amicus Brief in ACA Discrimination Suit --------------------------------------------------------------- Independent Women's Law Center (IWLC)) filed an amicus brief in support of CVS Pharmacy, arguing that Americans should not be able to sue for monetary damages simply because a well-intentioned policy has a disproportionate negative impact on the disabled. The Affordable Care Act (ACA) prohibits federally-financed health programs from discriminating as defined by the Rehabilitation Act. Plaintiffs attorneys filed suit across the country arguing that CVS Pharmacy's specialty-drug program is discriminatory because it disproportionately impacts those who seek prescription medications related to HIV. CVS gives those who take specialty medicines a couple of options: they may choose to have them delivered to their home or pick them up from a local CVS pharmacy. If they want to pick them up at a different pharmacy, they pay more. IWLC filed a brief in support of CVS's argument that Congress did not authorize disparate impact claims under the ACA and Rehabilitation Act. IWLC argues it is for Congress' and Congress alone -- to determine whether a statute creates a partticular cause of action. Jennifer C. Braceras, director of Independent Women's Law Center, issued the following statement: "If the Ninth Circuit's ruling is allowed to stand, almost every medical provider, college, university, K-12 school, and business that received federal assistance during the COVID-19 pandemic could face liability for well-meaning programs that have a disproportionate impact on those with disabilities. Courts should not take it upon themselves to redefine illegal discrimination in a way that Congress did not intend." Erin Hawley, senior legal fellow at Independent Women's Law Center, said: "Judicial decisions, like the one entered by the Ninth Circuit below, usurp the role the Founders accorded to Congress. It violates separation of powers principles for an unelected judiciary to create causes of action. The Supreme Court should grant certiorari and make clear that the federal courts must stay in their interpretive lane." Independent Women's Forum -- http://www.iwf.org-- is dedicated to developing and advancing policies that aren't just well intended, but actually enhance people's freedom, choices, and opportunities. Independent Women's Law Center advocates for equal opportunity, individual liberty, and respect for the American constitutional order. CVS PHARMACY: Wins Jury Trial in Washington Consumer Class Suit --------------------------------------------------------------- The U.S. District Court for the Northern District of California issued a judgment in favor of the Defendant after a jury trial in the lawsuit titled CARL WASHINGTON, ET AL., Plaintiffs v. CVS PHARMACY, INC., Defendant, Case No. 15-cv-03504-YGR (N.D. Cal.). This class action came on for jury trial beginning on June 7, 2021, before District Judge Yvonne Gonzalez Rogers. Witnesses were sworn and testified. After hearing the evidence, the jury was instructed by the Court, and the case was submitted to the jury on June 22, 2021. Nine sworn jurors deliberated. On June 23, 2021, a jury rendered a verdict in favor of Defendant CVS Pharmacy, Inc. ("CVS") on each of the consumer protection statutes of Arizona, California, Florida, Illinois, Massachusetts, and New York. Thereafter, the Court adopted the jury's findings and found in favor of CVS on the claim under California's Unfair Competition Law. Accordingly, the Plaintiffs and class members will recover nothing against CVS and judgment is entered in favor of CVS. A full-text copy of the Court's Judgment dated June 24, 2021, is available at https://tinyurl.com/3fzwusvx from Leagle.com. DANIMER SCIENTIFIC: Frank R. Cruz Reminds of July 13 Deadline ------------------------------------------------------------- The Law Offices of Frank R. Cruz on June 29 disclosed that a class action lawsuit has been filed on behalf of persons and entities that purchased or otherwise acquired Danimer Scientific Inc. securities between December 30, 2020 and March 19, 2021, inclusive (the "Class Period"). Danimer investors have until July 13, 2021 to file a lead plaintiff motion. On 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, Danimer's stock price fell $6.43 per share, or roughly 13%, to close at $43.55 per share on March 22, 2021, thereby injuring investors. Then, on April 22, 2021, Spruce Point Capital Management ("Spruce Point") published a report, noting among other things, various inconsistencies with Danimer's historical and present claims regarding the size of its operations, Nodax's makeup and degradability, and the Company's expected profitability. On this news, Danimer's stock price fell $2.01 per share, or 8.04%, to close at $22.99 per share on April 22, 2021, thereby injuring investors further. Then, on May 4, 2021, Spruce Point published another report on Danimer alleging that the Company had "wildly overstated" production figures, pricing, and financial projections based on documents Spruce Point had acquired from the Commonwealth of Kentucky's Department of Environmental Protection ("KDEP") under the Freedom of Information Act ("FOIA"), all of which cast serious doubt on the integrity of the Company's internal controls. On this news, Danimer's stock price fell $1.49 per share, or 6.31%, to close at $22.14 per share on May 4, 2021, thereby injuring investors further. 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 that: (1) Danimer had deficient internal controls; (2) as a result, the Company had misrepresented, inter alia, its operations' size and regulatory compliance; (3) Defendants had overstated Nodax's biodegradability, particularly in oceans and landfills; and (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Danimer securities during the Class Period, you may move the Court no later than July 13, 2021 to ask the Court to appoint you as lead plaintiff. To be a member of the Class 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. If you purchased Danimer securities, 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 Frank R. Cruz, of The Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles, California 90067 at 310-914-5007, by email to info@frankcruzlaw.com, or visit our website at www.frankcruzlaw.com. [GN] DR. REDDY'S: Overarching Conspiracy Related Class Suits Underway ---------------------------------------------------------------- Dr. Reddy's Laboratories Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2021, for the fiscal year ended March 31, 2020, that the company continues to defend Antitrust Overarching Conspiracy Related Class Suits. On December 19, 2019, a new class action complaint was filed by the End Payor Plaintiffs. The complaint alleges a conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1, and violations of twenty-eight States' antitrust statutes and twenty-nine States' consumer protection statutes, and asserts claims of unjust enrichment. The complaint seeks injunctive relief, recovery of treble damages, punitive damages, attorney's fees and costs. The complaint alleges an "overarching conspiracy" among the named defendants involving one hundred and thirty-five drugs and, with slight variations, names approximately thirty-six generic pharmaceutical manufacturers, including the Company's U.S. subsidiary. The drug-specific allegations against the Company's U.S. subsidiary involve eight of the one hundred thirty-five drugs, including allopurinol, ciprofloxacin HCL, fluconazone, glimepiride, oxaprozine, paricalcitol, ranitidine HCL and tizanidine. The Company denies any wrongdoing and intends to vigorously defend against these claims. On December 19, 2019, a new class action complaint was filed by certain pharmacy and hospital indirect purchaser plaintiffs. The complaint alleges a conspiracy in restraint of trade in violation of Sections 1 and 3 of the Sherman Act, 15 U.S.C. Section 1 and Section 3, and violations of forty-three States' antitrust statutes and consumer protection statutes, and asserts claims of unjust enrichment. The complaint seeks injunctive relief, recovery of treble damages, punitive damages, attorney's fees and costs against all named defendants on a joint and several basis. The complaint alleges an "overarching conspiracy" among the named defendants involving one hundred and sixty-two drugs and, with slight variations, names approximately twenty-eight generic pharmaceutical manufacturers, including the Company's U.S. subsidiary, as well as seven pharmaceutical distributor defendants and sixteen individual defendants. The drug-specific allegations against the Company's U.S. subsidiary involve nineteen drugs: allopurinol, capecitabine, ciprofloxacin HCL, divalproex ER, eszopiclone, fenofibrate, glimepiride, isotretinoin, lamotrigine ER, meprobamate, metoprolol ER, montelukast granules, omeprazole sodium bicarbonate, oxaprozine, paricalcitol, sumatriptan, tizanidine HCL, valganciclovir and zoledronic acid. The Company denies any wrongdoing and intends to vigorously defend against these claims. Dr. Reddy's Laboratories Limited operates as an integrated pharmaceutical company worldwide. It operates through three segments: Global Generics, Pharmaceutical Services and Active Ingredients (PSAI), and Proprietary Products. Dr. Reddy's Laboratories Limited was founded in 1984 and is headquartered in Hyderabad, India. DR. REDDY'S: Pharmacy and Hospital Indirect Purchaser Suit Underway ------------------------------------------------------------------- Dr. Reddy's Laboratories Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2021, for the fiscal year ended March 31, 2020, that the company continues to defend a class action suit initiated by certain pharmacy and hospital indirect purchaser plaintiffs. On December 19, 2019, a class action complaint was filed by certain pharmacy and hospital indirect purchaser plaintiffs. The complaint alleges a conspiracy in restraint of trade in violation of Sections 1 and 3 of the Sherman Act, 15 U.S.C. Section 1 and Section 3, and violations of forty-three States' antitrust statutes and consumer protection statutes, and asserts claims of unjust enrichment. The complaint seeks injunctive relief, recovery of treble damages, punitive damages, attorney's fees and costs against all named defendants on a joint and several basis. The complaint alleges an "overarching conspiracy" among the named defendants involving one hundred and sixty-two drugs and, with slight variations, names approximately twenty-eight generic pharmaceutical manufacturers, including the Company's U.S. subsidiary as well as seven pharmaceutical distributor defendants and sixteen individual defendants. The drug-specific allegations against the Company's U.S. subsidiary involve nineteen drugs: allopurinol, capecitabine, ciprofloxacin HCL, divalproex ER, eszopiclone, fenofibrate, glimepiride, isotretinoin, lamotrigine ER, meprobamate, metoprolol ER, montelukast granules, omeprazole sodium bicarbonate, oxaprozine, paricalcitol, sumatriptan, tizanidine HCL, valganciclovir and zoledronic acid. The Company denies any wrongdoing and intends to vigorously defend against these claims. Dr. Reddy's Laboratories Limited operates as an integrated pharmaceutical company worldwide. It operates through three segments: Global Generics, Pharmaceutical Services and Active Ingredients (PSAI), and Proprietary Products. Dr. Reddy's Laboratories Limited was founded in 1984 and is headquartered in Hyderabad, India. DR. REDDY'S: Pravastatin Antitrust Class Action Ongoing ------------------------------------------------------- Dr. Reddy's Laboratories Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2021, for the fiscal year ended March 31, 2020, that the company continues to defend the Pravastatin Antitrust Class Action. Since November 17, 2016, certain class action complaints on behalf of Direct Purchaser Plaintiffs, Indirect Reseller Plaintiffs and End Payor Plaintiffs classes were filed against the Company and a number of other pharmaceutical defendants in the United States District Court for the District of Pennsylvania, alleging that the Company's U.S. subsidiary and the other named defendants engaged in a conspiracy to fix prices and to allocate bids and customers in the sale of pravastatin sodium tablets in the United States. The Company's U.S. subsidiary has been dismissed from these actions, without prejudice, in exchange for a tolling agreement with the plaintiffs suspending the statute of limitations as to the claims asserted. The Company denies any wrongdoing and intends to vigorously defend against these claims. Dr. Reddy's Laboratories Limited operates as an integrated pharmaceutical company worldwide. It operates through three segments: Global Generics, Pharmaceutical Services and Active Ingredients (PSAI), and Proprietary Products. Dr. Reddy's Laboratories Limited was founded in 1984 and is headquartered in Hyderabad, India. DR. REDDY'S: Ranitidine Related Suits Underway ---------------------------------------------- Dr. Reddy's Laboratories Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2021, for the fiscal year ended March 31, 2020, that the company continues to defend class action suits related to the recall of Ranitidine. On October 1, 2019, the Company initiated a voluntary nationwide retail (at the retail level for over-the-counter products and at the consumer level for prescription products) of its ranitidine medications sold in the United States due to the presence of N-Nitrosodimethylamine ("NDMA") above levels established by the U.S. Food and Drug Administration (FDA). On November 1, 2019, the U.S. FDA issued a statement indicating that it had found levels of NDMA in ranitidine from its testing generally that were "similar to the levels you would expect to be exposed to if you ate common foods like grilled or smoked meats." On April 1, 2020, the U.S. FDA issued a press release announcing that it was requesting manufacturers to withdraw all prescription and over-the-counter ranitidine drugs from the market immediately. Individual federal court personal injury lawsuits, as well as various class actions, have been transferred to the In re Zantac (Ranitidine) Products Liability Litigation Multidistrict Litigation in the Southern District of Florida, MDL-2924. The Company and/or one or more of its U.S. subsidiaries have been named as a defendant in over 250 lawsuits pending in the MDL-2924. A census registry established in the MDL-2924 includes tens of thousands of claimants who have not filed complaints but are presenting claims for consideration in the MDL-2924 against the many pharmaceutical manufacturers, distributors and retailers which are defendants in the MDL-2924. The MDL-2924 also involves a proposed nationwide consumer class action and a proposed nationwide class action for medical monitoring. A third-party payor class action was dismissed without prejudice and has been appealed by plaintiffs to the U.S. Court of Appeals for the Eleventh Circuit. On December 31, 2020, the MDL-2924 Court ruled on multiple motions to dismiss in the MDL-2924 and granted the generic manufacturers' (the Company is a generic manufacturer) motion to dismiss based on federal preemption. The plaintiffs' failure-to-warn and design defect claims against the Company were dismissed with prejudice, but the Court permitted plaintiffs to attempt to replead several claims/theories. Plaintiffs have filed their amended complaints and the defendants, including the Company, filed motions to dismiss seeking dismissal of all claims against them on March 24, 2021. The briefings and arguments as to the latest round of motions to dismiss were completed and the parties continue to engage in discovery consistent with orders from the MDL-2924 Court. There are three ranitidine-related actions currently pending against the Company in state courts. The New Mexico State Attorney General filed suit against the Company's U.S. subsidiary, and multiple other manufacturers and retailers. The State of New Mexico asserted claims of statutory and common law public nuisance and negligence claims against the Company. The Company joined in an effort to transfer the case from the Santa Fe County Court to the MDL-2924, but the case was remanded by the MDL-2924 Court to the Santa Fe County Court. Plaintiff filed an amended complaint on April 16, 2021, and a briefing schedule has been entered pursuant to which the defendants will move to dismiss the case. In November 2020, the City of Baltimore filed a similar action against the Company's U.S. subsidiary, and multiple other manufacturers and retailers. The City of Baltimore asserts public nuisance and negligence claims against the Company. The City of Baltimore action also was transferred to the MDL-2924 and subsequently was remanded to the Circuit Court of Maryland by the MDL-2924 Court. The City of Baltimore intends to file an amended complaint and the defendants will then move to dismiss the case. In January 2021, the Company was served in a Proposition 65 case filed by the Center for Environmental Health in the Superior Court of Alameda County, California. The plaintiff purports to bring the case on behalf of the people of California and alleges that the Company violated Proposition 65, a California law requiring manufacturers to disclose the presence of carcinogens in consumer products. The Company and other defendants have filed demurrers (motions to dismiss) in the case, and on May 7, 2021 the Court granted all such demurrers without leave to amend the pleadings. The People of California have the right to appeal this decision. The Company believes that all of the aforesaid complaints and asserted claims are without merit and it denies any wrongdoing and intends to vigorously defend itself against the allegations. Any liability that may arise on account of these claims is unascertainable at this time. Accordingly, no provision was made in these consolidated financial statements of the Company. Dr. Reddy's Laboratories Limited operates as an integrated pharmaceutical company worldwide. It operates through three segments: Global Generics, Pharmaceutical Services and Active Ingredients (PSAI), and Proprietary Products. Dr. Reddy's Laboratories Limited was founded in 1984 and is headquartered in Hyderabad, India. DR. REDDY'S: Unit Continues to Defend Price Fixing Related Suits ---------------------------------------------------------------- Dr. Reddy's Laboratories Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 30, 2021, for the fiscal year ended March 31, 2020, that the company's U.S. subsidiary continues to defend class action suits initiated by Kroger Co., Albertsons Companies, LLC, and H.E. Butt Grocery Company, L.P. On January 22, 2018, each of the Kroger Co., Albertsons Companies, LLC, and H.E. Butt Grocery Company, L.P., filed a complaint against the Company's U.S. subsidiary and thirty-one other companies alleging that they had engaged in a conspiracy to fix prices and to allocate bids and customers in the United States in the sale of the thirty named generic drugs. The Company's U.S. subsidiary is specifically named as a defendant with respect to three generic drugs (divalproex ER, meprobamate and zoledronic acid), and is named as an alleged co-conspirator on an alleged "overarching conspiracy" claim with respect to the other generic drugs named. This action alleges violations of Section 1 of the Sherman Act, 15 U.S.C. Section 1, and seeks injunctive relief and recovery of treble damages, punitive damages, plus attorney's fees and costs, against all named defendants on a joint and several basis. The Company denies any wrongdoing and intends to vigorously defend against these class action claims. Dr. Reddy's Laboratories Limited operates as an integrated pharmaceutical company worldwide. It operates through three segments: Global Generics, Pharmaceutical Services and Active Ingredients (PSAI), and Proprietary Products. Dr. Reddy's Laboratories Limited was founded in 1984 and is headquartered in Hyderabad, India. E*TRADE SECURITIES: Whitesides' 2nd Amended Complaint Dismissed --------------------------------------------------------------- Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California grants the Defendants' motion to dismiss the Plaintiffs' second amended class action complaint in the lawsuit titled BENJAMIN WHITESIDES, et al., Plaintiffs v. E*TRADE SECURITIES, LLC, et al., Defendants, Case No. 20-cv-05803-JSC (N.D. Cal.). Three users of E*TRADE's electronic trading service allege that E*TRADE breached its customer agreement when it failed to process their orders as the crude oil futures market collapsed on April 20, 2020. Defendants E*TRADE Securities, LLC and E*TRADE Futures, LLC (collectively "E*TRADE") move to dismiss the Plaintiffs' Second Amended Class Action Complaint ("SAC") for failure to state a claim for breach of contract. The Court grants the Defendants' motion to dismiss the Plaintiffs' SAC for failure to state a claim without leave to amend. Background E*TRADE is one of the largest online focused broker-dealers in the world. Customers of E*TRADE's platform trade securities through a web-based application or by calling E*TRADE's help center. E*TRADE's platform allows retail investors to trade oil futures contracts. A futures contract is effectively a promise to deliver a commodity at a certain time. The buyer of a futures contract takes on the obligation to buy and receive the underlying asset when the contract expires. The seller of a futures contract takes on the obligation to deliver the underlying asset at expiration. However, nearly all retail investors trade commodity futures contracts without any expectation of receiving or delivering the underlying asset. These investors close out their positions prior to the expiration of the contract. E*TRADE also allows customers to trade oil futures that are settled with cash instead of oil. These futures are known as "e-mini futures." Upon expiration, the value of "e-mini futures" converge with the value of regular oil futures. The benchmark for oil futures is the contract on West Texas Intermediate ("WTI") crude oil delivered to Cushing, Oklahoma. In early 2020, the global coronavirus pandemic caused a precipitous decline in demand for oil. In addition, on March 8, 2020, Russia and Saudi Arabia announced increases in oil production and Saudi Arabia announced price discounts. These announcements depressed crude oil prices. On April 20, 2020, the day before the May 2020 WTI futures contracts expired, the price of these futures dropped precipitously. By the end of the day, the futures closed at a negative price of -$37.63 as investors became concerned that the cost to store these barrels of oil would be more than the oil was worth. When the price of these futures dropped below zero, E*TRADE's platform suffered a system failure. As a result of the system failure, the platform failed to display accurate prices for crude oil futures and did not allow users to close out their positions. Prior to the system failure, it was known industrywide that oil futures could trade negative. The owner of the New York Mercantile Exchange sent a notice to its clearing-member firms on April 15, 2020, advising them how they could test their systems using negative prices. Furthermore, CME Group, Inc., warned on the day of the crash that the company's WTI futures had the potential to trade negative. The Plaintiffs, Benjamin Whitesides, Aziz Si Hadj Mohand, and Matthew Cheung, are customers of E*TRADE's trading platform, who held "e-mini" oil futures contracts when the price fell below zero. Each Plaintiff claims that he immediately attempted to sell off the contracts when the price fell below zero. However, each Plaintiff alleges that he was unable to do so because of the system failure afflicting E*TRADE's platform. Each Plaintiff alleges that he suffered substantial losses. E*TRADE's relationship with the Plaintiffs is governed by a customer agreement (the "Agreement.") On Aug. 18, 2020, the Plaintiffs filed a class action complaint against E*TRADE Securities, LLC and E*TRADE Futures, LLC, alleging causes of action for breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, and a claim under the California Unlawful Competition Law ("UCL"). The Defendants then moved to dismiss. However, the parties subsequently stipulated to withdraw the motion to dismiss and allow the Plaintiffs to file an amended complaint. The Plaintiffs filed the First Amended Complaint ("FAC") on Nov. 12, 2020, which eliminated the claims for breach of contract and breach of duty of good faith and fair dealing, but maintained the claims for negligence, gross negligence, and violation of UCL. The Defendants again moved to dismiss, or in the alternative, to strike certain portions of the pleading. The Court, thereafter, granted the Defendants' motion to dismiss without leave to amend for the ordinary negligence claim but with leave to amend as to the Plaintiffs' other claims. The Plaintiffs then filed the now operative SAC, which repleads the claims for breach of contract, breach of the duty of good faith and fair dealing, and violation under the UCL, but does not include any negligence claims. The Defendants again moved to dismiss, or in the alternative, to strike certain portions of the pleading. The Defendants' motion to dismiss is now fully briefed, and the Court heard oral argument on June 17, 2021. Discussion In the SAC, the Plaintiffs pivoted from negligence claims to breach of contract and breach of the covenant of good faith and fair dealing claims; however, in their motion to dismiss opposition, the Plaintiffs withdrew their breach of the covenant and fair dealing claim and their UCL claim. Thus, the sole claim before the Court is a breach of contract claim based on the Agreement. The Plaintiffs allege that E*TRADE breached the Agreement by not permitting them to trade their shares on April 20, 2020, when the price of crude oil went negative. The Defendants contend that the claim fails because the Plaintiffs do not identify any Agreement provision which E*TRADE breached. While the SAC attaches the Agreement, it does not identify any Agreement provision, which required the Defendants to offer trading services at all times such that its failure to do so on April 20, 2020, constitutes a breach of contract, Judge Corley opines. Instead, the only Agreement provisions the SAC identifies are first, that "E*TRADE offers a variety of ways to access the Account, including telephone, online, mobile application and interactive voice response services." Second, Judge Corley adds, "E*TRADE's website and mobile application may make available 'Market Data' which is defined as 'all data distributed by E*TRADE regarding bids, offers and market transactions and all information based on any such data." Neither the SAC nor the Plaintiffs' opposition explains how E*TRADE's trading system failure on April 20, 2020, was a breach of either provision. Neither provision supports an inference of the existence of a promise to offer trading services at all times, or at least offer trading services when the price of crude oil goes negative. In their opposition and at oral argument, the Plaintiffs identified the Agreement's definition of Service as the breached Agreement provision. The Agreement defines Service to "mean the securities brokerage, commodity futures brokerage, financial, and other services that E*TRADE may offer from time to time." Judge Corley holds that the plain language of that definition does not obligate E*TRADE to provide trading services at all times and the Plaintiffs do not otherwise explain how that definition gave rise to such an obligation. It is not plausible that it did. The Plaintiffs' failure to identify an Agreement provision that required E*TRADE to give the Plaintiffs the ability to execute trades at all times is unsurprising given that the Agreement specifically states: "The Account Holder understands and agrees that E*TRADE does not guarantee uninterrupted access to the Service or any feature of the Service," Judge Corley notes. The Agreement, thus, specifically warns that E *TRADE is not promising that its brokerage services will be available at particular times, in contrast to the Plaintiffs' unsupported theory that the Defendants promised that the brokerage services would be available at all times, or, at least on April 20, 2020. The Plaintiffs' attempt at oral argument to limit the reach of paragraph 11 to unavailability due to maintenance or repair of the System is unpersuasive, Judge Corley holds. The first sentence of the paragraph is unambiguous and unequivocal: "E*TRADE does not guarantee uninterrupted access to the Service or any feature of the Service." The Plaintiffs have, thus, failed to allege facts that support an inference that E*TRADE breached the Agreement by failing to offer uninterrupted access to the Service. Judge Corley also notes that in their written opposition the Plaintiffs argue for the first time that E*TRADE made false and misleading statements on its website regarding the services it provided. The Court declines to consider this argument, which is untethered to the SAC's allegations. In any event, the Plaintiffs do not identify any website statements, let alone plausibly false and misleading statements, Judge Corley opines. Hence, the breach of contract claim fails. The Court dismisses the Plaintiffs' contract claim without leave to amend as amendment would be futile. This is the Plaintiffs' third iteration of their complaint. They omitted the contract claim from the FAC and only reasserted it after deciding not to pursue their negligence theory. Despite attaching the Agreement to the SAC, neither the SAC nor their written opposition identifies any contract provision that E*TRADE plausibly breached. Further, the Plaintiffs' opposition ignored paragraph 11 of the Agreement even though it was prominently raised in the motion to dismiss. The Court, nonetheless, gave the Plaintiffs the opportunity to address the contract language at oral argument, but the Plaintiffs did not persuade the Court that paragraph 11 does not defeat their claim. And the opposition's vague reference to a website representation is insufficient given that in three different versions of the complaint, two written oppositions, and two oral arguments they have failed to identify any website statements that obligated E*TRADE to provide the Plaintiffs with uninterrupted access to the Trading Service. Accordingly, the motion is granted, and leave is denied. Conclusion For the reasons stated, the Defendants' motion to dismiss is granted without leave to amend. The Defendants' request for judicial notice is denied as moot. A separate judgment will issue. A full-text copy of the Court's Order dated June 24, 2021, is available at https://tinyurl.com/3udxmrfy from Leagle.com. FCA US: Michigan Court Consolidates Pistorio and Gerritsen Suits ---------------------------------------------------------------- The U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Defendant's motion to consolidate two lawsuits: Edward Pistorio, et al., Plaintiffs v. FCA US LLC, Defendant; and Corey Gerritsen, et al., Plaintiffs v. FCA US LLC, Defendant, Case Nos. 20-cv-11838, 2:21-cv-10278 (E.D. Mich.). Before the Court is the Defendant's motion to consolidate two cases: Pistorio, et al. v. FCA US LLC (Case No. 2:20-cv-11838) and Gerritsen, et al. v. FCA US LLC (Case No. 2:21-cv-10278). The motion is concurrently filed in both cases. The Plaintiffs do not oppose the consolidation but request that the Court waits until the Court rules on a currently pending motion to dismiss in Pistorio. On Sept. 24, 2019, the Plaintiffs filed Gerritsen v. FCA US LLC in the U.S. District Court for the Central District of California. It is a putative class action of California vehicle purchasers based on alleged defects in the Uconnect infotainment systems of vehicles manufactured by FCA US LLC. On July 7, 2020, the Plaintiffs filed Pistorio v. FCA US LLC in this District. It is also a putative class action of nationwide purchasers based on the same alleged defects in the Uconnect infotainment systems of vehicles manufactured by FCA US LLC. The Plaintiffs in both cases are represented by the same counsel. On Sept. 8, 2020, the Central District of California in Gerritsen issued an opinion and order denying in part and granting in part the Defendant's motion to dismiss the second amended complaint. The California court largely rejected the Defendant's arguments and only granted the motion to dismiss as to one Defendant. On Feb. 2, 2021, the California court issued an opinion and order granting the Defendant's motion to transfer Gerritsen's venue from the Central District of California to this District pursuant to 28 U.S.C. Section 1404(a). The California court emphasized the importance of judicial economy in its reasoning. The parties agree that the cases should be consolidated. The only issue in dispute is when that should occur. The Plaintiffs only oppose the Defendant's motion "because FCA seeks to file a new motion to dismiss, including moving to dismiss the California claims which have already been ruled on." The Plaintiffs argue that (1) allowing the Plaintiffs to file a consolidated complaint now and allowing the Defendants to file a renewed motion to dismiss would result in months-long delay; and (2) the Defendants should not get a second chance to dismiss the Plaintiffs' California claims. The Court is unsympathetic to the Plaintiff's first argument regarding a few months delay. As the California court noted, the Plaintiffs could have avoided this issue by filing all their claims in a single action in this District--the only venue where all claims could plainly proceed. As the California court noted, "[a]s the master of the complaint, Plaintiffs and their counsel were best positioned to avoid this situation." The Court finds the Plaintiff's second argument unpersuasive because it is inapplicable and misplaced. The Plaintiffs argue that the Defendant should not get another chance to move to dismiss the Plaintiff's California claims under the "law of the case" doctrine. The law of the case doctrine provides that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Scott v. Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004). This doctrine also applies when a court is presented with an issue ruled on by a transferor court. District Judge Sean F. Cox notes that the Plaintiffs appear to be concerned that this Court will overturn the California court's opinion and order largely denying the Defendant's motion to dismiss. However, this is inapplicable to the issue of whether these two cases should be consolidated under Rule 42(a) of the Federal Rules of Civil Procedure. The Plaintiffs' law of the case argument is misplaced because the doctrine does not apply to an order denying a motion to dismiss, which is an interlocutory order, Judge Cox opines. An order denying a motion to dismiss is an interlocutory order because it is not a "final decision" appealable under 28 U.S.C. Section 1291. Therefore, the law of the case doctrine would not apply to the California court's order denying in part granting in part the Defendant's motion to dismiss the second amended complaint in Gerritsen because it is an interlocutory order, Judge Cox explains. Conclusion For the reasons explained, the Court grants the Defendant's motion to consolidate Gerritsen (Case No. 2:21-cv-10278) and Pistorio (Case No. 2:20-cv-11838). A full-text copy of the Court's Order dated June 24, 2021, is available at https://tinyurl.com/3teyhbph from Leagle.com. HERFF JONES: Odagiu Files Suit Over Data Breach ----------------------------------------------- Niculina Odagiu, on behalf of himself and all others similarly situated, Plaintiff, v. Herff Jones, LLC, Defendant, Case No. 21-cv-03380 (N.D. Ill., June 23, 2021), seeks all monetary and non-monetary relief allowed by law, including restitution of all profits stemming from unfair, unlawful and fraudulent business practices, declaratory and injunctive relief, reasonable attorneys' fees and costs under the New York Deceptive Practices Act of the New York General Business Law and the Wisconsin Deceptive Trade Practices Act. Herff Jones manufactures and sells educational recognition and achievement products and motivational materials with production facilities across the United States and Canada. It experienced a data breach somewhere between March or April 2021. Odagiu used her credit card to make a purchase with Herff Jones. Following her purchase with Herff Jones, she incurred fraudulent charges between May 30, 2021 and approximately June 2, 2021 on her card. [BN] Plaintiff is represented by: Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Matthew C. De Re, Esq. Jeffrey D. Blake, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Tel: (312) 440-0020 Fax: (312) 440-4180 Email: tom@attorneyzim.com sharon@attorneyzim.com matt@attorneyzim.com jeff@attorneyzim.com HOME POINT: Howard G. Smith Reminds of August 20 Deadline --------------------------------------------------------- Law Offices of Howard G. Smith reminds investors of the upcoming August 20, 2021 deadline to file a lead plaintiff motion in the case filed on behalf of investors who purchased Home Point Capital Inc. ("Home Point" or the "Company") (NASDAQ: HMPT) common stock pursuant and/or traceable to the Company's January 2021 initial public offering ("IPO"). Investors suffering losses on their Home Point 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 January 2021, Home Point conducted its IPO, selling 7.25 million shares of common stock for $13.00 per share. On May 6, 2021, Home Point announced financial results for the first quarter of 2021, reporting revenue of $324.2 million, which missed consensus estimates by $41.72 million. On this news, Home Point's stock price fell $1.66, or 17.7%, to close at $7.72 per share on May 6, 2021, significantly below the IPO price. The complaint filed alleges that 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) Home Point's aggressive expansion of its broker partners would increase the Company's expenses dramatically; (2) as a result of rising interest rates in 2021, the mortgage industry was anticipating decreased gain-on-sale margins industry-wide, and Home Point would be subject to the same competitive pressures; (3) accordingly, Home Point had overstated its business and financial prospects; and (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Home Point common stock pursuant and/or traceable to the IPO, you may move the Court no later than August 20, 2021 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com www.howardsmithlaw.com [GN] HOME POINT: Wolf Haldenstein Reminds of August 20 Deadline ---------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on June 28 disclosed that a federal securities class action lawsuit has been filed in the United States District Court for the Eastern District of Michigan on behalf of purchasers of Home Point Capital Inc. (NASDAQ: HMPT) (the "Company") common stock pursuant and/or traceable to Home Point Capital's January 29, 2021 initial public offering ("IPO"). All investors who purchased shares of Home Point Capital Inc. and incurred losses are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action or join the case on our website, www.whafh.com. If you have incurred losses in your investment in shares of Home Point Capital Inc. you may, no later than August 20, 2021, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in the shares of Home Point Capital Inc. Home Point Capital operates as a residential mortgage originator and service provider On January 29, 2021, Home Point Capital launched its IPO, issuing 7.25 million shares of Home Point Capital's common stock to the public at the offering price of $13.00 per share. Net proceeds of the offering were approximately $88 million. According to the filed Complaint, the Company made false and misleading statements to the market. Home Point's plan to aggressively expand its broker partners would in turn dramatically increase its expenses. The mortgage industry anticipated shrinking gain-on-sale margins due to rising interest rates, resulting in increased competitive pressures on the Company. The Company overstated its business and growth prospects. Based on these facts, it is alleged that the Company's public statements and offering documents were false and materially misleading throughout the period. On May 6, 2021, Home Point Capital issued a press release announcing Home Point Capital's financial results for the first quarter of 2021. Among other results, Home Point Capital reported revenue of $324.2 million, missing consensus estimates by $41.72 million. On this news, Home Point Capital's stock price fell nearly 18%, closing at $7.70 per share. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. Contact: Wolf Haldenstein Adler Freeman & Herz LLP Patrick Donovan, Esq. Gregory Stone, Director of Case and Financial Analysis Email: gstone@whafh.com, donovan@whafh.com or classmember@whafh.com Tel: (800) 575-0735 or (212) 545-4774 [GN] JSR MICRO: Sanchez Suit Seeks Unpaid Wages ------------------------------------------ Anthony Sanchez, individually and on behalf of all others similarly situated, Plaintiff, v. JSR Micro, Inc., JSR North America Holdings, Inc., JSR Life Sciences, LLC and Does 1 through 20, inclusive, Defendants, Case No. 21CV383516 (Cal. Super., June 23, 2021), seeks unpaid wages and interest for Defendants' failure to pay for all hours worked and minimum wage rate; failure to authorize or permit required meal periods; and failure to authorize or permit required rest periods. The lawsuit also seeks statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, unfair competition, injunctive relief and other equitable relief, and reasonable attorney's fees, costs and interest pursuant to California Labor Code and applicable Industrial Welfare Commission Wage Orders. Defendants are in the business of developing and manufacturing semiconductor materials where Sanchez worked as a non-exempt employee. [BN] Plaintiff is represented by: Jessica L. Campbell, Esq. Kashif Haque, Esq. Samuel A. Wong, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 2618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Email: jcampbell@aegislawfirm.com swong@aegislawfirm.com khaque@aegislawfirm.com MDL 2179: Court Tosses Valdivieso's Oil Spill Claims Against BP --------------------------------------------------------------- The U.S. District Court for the Eastern District of Louisiana issued an Order & Reasons granting BP's Motion for Judgment on the Pleadings in the multidistrict litigation entitled In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. La.). District Judge Carl Barbier's Order & Reasons applies to the lawsuit Valdivieso v. Southern Cat, Inc., et al., Case No. 12-2004). Before the Court is BP plc, et al.'s Rule 12(c) Motion for Judgment on the Pleadings against the claims of Sergio Valdivieso. As filed, BP's motion is based on Valdivieso's original complaint. Valdivieso's briefs similarly reference his original complaint. After this matter was submitted for decision, BP discovered that Valdivieso filed an amended complaint. The main difference between the two is that Valdivieso changed some of the Defendants. The allegations against BP, however, are unchanged. Because BP never answered the amended complaint, it requests that the Court simply treat its Rule 12(c) motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim, which applies the same standard as Rule 12(c). The Court does so. Mr. Valdivieso filed suit against several BP entities ("BP"), Southern Cat, Inc., Emergency Response Group, Inc. ("ERG"), SWS Environmental Services f/k/a Eagle-SWS, Inc. a/k/a Progressive Environmental Services, Inc. ("SWS"), and Disaster Response Services, LLC for injuries he allegedly sustained in 2010 while working to clean up the oil spill from the DEEPWATER HORIZON/Macondo Well casualty. His amended complaint asserts two types of injuries. First, Valdivieso claims he injured his neck, shoulder, arm, back, and other parts of his body while attempting to lift oil-absorbing boom. Second, he claims he was exposed to and injured by chemicals in the oil and dispersants used during cleanup operations. He alleges both injuries occurred while he was working on a 24-foot vessel. He brings claims under the Jones Act (negligence) and general maritime law (unseaworthiness, maintenance and cure, and negligence). As to the second alleged injury, Valdivieso now admits that he is not pursuing any claims for chemical (either hydrocarbon or dispersant) exposure in this case. He further concedes that any exposure-related claims would be released by the Deepwater Horizon Medical Benefits Class Action Settlement. Accordingly, the Court will dismiss Valdivieso's chemical exposure claims. This leaves Valdivieso's claim for injuries to his shoulder, neck, etc., from lifting boom. BP argues that Valdivieso's amended complaint alleges no facts that would allow a court to reasonably infer that it is liable for any of the asserted misconduct or defective conditions. The Court agrees. When the amended complaint alleges negligence (aside from the allegations regarding chemical exposure claims), it targets the conduct of the Defendants other than BP. Similarly, Valdivieso alleges that the non-BP Defendants are his employers and, thus, are liable to him under the Jones Act and for maintenance and cure. Thus, Judge Barbier holds, the amended complaint fails to plausibly allege negligence (whether under the Jones Act or general maritime law) or a claim for maintenance and cure against BP. The amended complaint also alleges that the vessel was unseaworthy in several respects. However, the law of the Fifth Circuit is that only vessel owners and bareboat or demise charterers owe a duty of providing a seaworthy vessel, Judge Barbier holds, citing Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213, 1215 (5th Cir. 1993), et al. Mr. Valdivieso does not allege that BP owned, bareboat, or demise chartered the vessel. Instead, he vaguely alleges that the vessel was "operated or under the control of Defendant BP." Tellingly, he alleges that the other Defendants "chartered" the vessel. Consequently, he fails to plausibly allege an unseaworthiness claim against BP, Judge Barbier holds. Mr. Valdivieso's primary response to all of this is that he should be permitted to engage in discovery concerning who his Jones Act employer(s) is/are and which entity(ies) is/are responsible for providing training, supervision, and equipment. Then, once the discovery can be completed, the Plaintiff intends to amend his Complaint to detail which defendant(s) and company/employer(s) is responsible for what. First, this argument seemingly amounts to a concession that Valdivieso's amended complaint does not plausibly state a claim against BP, Judge Barbier holds. Moreover, it puts the cart before the horse. Accordingly, the Court denies the request for discovery. The request to amend is denied, as well. Mr. Valdivieso requested and received leave to file a sur-reply. Attached to Valdivieso's sur-reply are various documents that BP produced pursuant to Pretrial Order 68 and the Court's Minute Order of April 8, 2021. He argues that these documents demonstrate that BP exercised more than enough direction over his salary, payment, direction, supervision, and employment for BP to qualify as a Jones Act employer. The Court has reviewed the documents attached to Valdivieso's sur-reply and concludes that they do not make his claims against BP plausible, much less raise a genuine dispute as to material fact (Rule 56's standard). Notably, all of these documents indicate that Valdivieso's employer--whether for purposes of the Jones Act or otherwise--is ERG or SWS (both of whom are already named as defendants) or perhaps MSRC (not a named defendant), not BP. Because these documents provide no help to Valdivieso, the Court excludes them for purposes of deciding this motion. Accordingly, the Court need not convert BP's Rule 12(b)(6) motion to a Rule 56 motion. For the reasons stated, BP's motion is granted. Sergio Valdivieso's claims against BP plc, BP Products North America, Inc., and BP America, Inc., are dismissed. Mr. Valdivieso's claims based on exposure to chemicals, whether asserted against BP or any other defendant, are dismissed. Valdivieso's non-chemical exposure claims against the remaining Defendants are not dismissed. The Court intends to issue a "Suggestion of Remand" recommending that the Judicial Panel on Multidistrict Litigation remand this case to the Southern District of Texas for further proceedings. A full-text copy of the Court's Order & Reasons dated June 24, 2021, is available at https://tinyurl.com/yvfuywkf from Leagle.com. MDL 2994: Five Data Breach ActionsTransferred to S.D. Fla. ---------------------------------------------------------- In the data breach litigation, "In Re: Mednax Services, Inc., Customer Data Security Breach Litigation," MDL No. 2994, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers two actions from the U.S. District Court for the Southern District of Florida and one each from the Southern District of California, Western District of Missouri and District of South Carolina, to the Southern District of Florida and, with the consent of that court, assigned to Judge Rodolfo A. Ruiz II for coordinated or consolidated pretrial proceedings. The actions involve common factual issues relating to a June 2020 incident in which Mednax's e-mail system was breached, potentially compromising the personally identifiable and health-related information of nearly two million individuals. All plaintiffs assert similar claims for violation of state privacy and consumer protection laws, negligence, and/or breach of contract, and all plaintiffs allege similar injuries. The panel concluded that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on class certification and other issues and conserve the resources of the parties, their counsel, and the judiciary. The panel also determined that the Southern District of Florida is an appropriate transferee forum for this litigation since two actions are pending in this district and that Mednax headquarters and principle places of business are located in there and thus relevant evidence and witnesses likely will be located there. A full-text copy of the Court's June 4, 2021 Transfer Order is available at https://bit.ly/3qInzPW. MDL 2995: Allianz Fund Mismanagement Suit Transfer Requests Denied ------------------------------------------------------------------ In the case "In Re: Allianz Structured Alpha Funds Litigation," MDL No. 2995, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, denied the proposed transfer of fifteen actions pending in the Southern District of New York and one action pending in the Southern District of California, to the Northern District of California. Common defendant Allianz Global Investors U.S. LLC opposed centralization, in favor of transfer of the California action to the Southern District of New York. All actions undisputedly present common factual questions arising from allegations that Allianz GI mismanaged a family of investment funds known as the Structured Alpha Funds by abandoning risk control measures promised to investors and engaging in transactions to further its self-interest, causing substantial losses to the funds in early 2020. The panel concluded that since the parties have not yet seriously pursued informal coordination, centralization should be the last solution after considered review of all other options. A full-text copy of the Court's June 7, 2021 order is available at https://bit.ly/2Umhlt1 MDL 2996: 17 Prescription Opioids Product Suits Moved to N.D. Cal. ------------------------------------------------------------------ In the product liability litigation over prescription opioids, "In Re: McKinsey & Company, Inc., National Prescription Opiate Consultant Litigation," MDL No. 2996, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers six actions from the U.S. District Court for the Northern District of Ohio, three from the Western District of Oklahoma, two each from the Western District of Washington and the Southern District of Illinois, and one each from the Southern District of Florida, Western District of Kentucky, Eastern District of New York and the Southern District of West Virginia, to the Northern District of California and, with the consent of that court, assigned to Judge Charles R. Breyer for coordinated or consolidated pretrial proceedings. The actions involve common factual issues arising from nearly identical questions about McKinsey's role in providing advice to certain opioid manufacturers, most notably Purdue, in the form of sales and marketing strategies aimed at increasing sales of prescription opioid drugs, bringing claims against McKinsey entities for public nuisance, negligence, negligent misrepresentation, fraud, unjust enrichment and violation of consumer protection statutes. The panel concluded that since said actions are in their relative infancy, centralization will eliminate duplicative discovery, avoid inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary. A full-text copy of the Court's June 7, 2021 Transfer Order is available at https://bit.ly/3jHtl2L MDL 2997: Baby Food Product Liability Suit Transfer Requests Denied ------------------------------------------------------------------- In the product liability case "In Re: Baby Food Marketing, Sales Practices and Products Liability Litigation," MDL No. 2997, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, denied the proposed transfer of nine cases from the U.S. District Courts for the Northern District of New York, 13 cases from the Eastern District of New York, five cases from the Southern District of New York, three cases from the District of New Jersey, two cases from the Eastern District of Virginia, two cases from the Northern District of California and one case each from the Central District of California, Northern District of Illinois, District of Kansas and the Western District of Missouri, to the Northern District of California. These actions allege that Defendants, manufacturers of baby food, knowingly sold baby food products containing heavy metals, yet marketed these products as healthy and as not containing harmful ingredients. Movants seeks centralization on an industry-wide basis, with the proposed MDL incorporating actions against all major baby food manufacturers while Defendants Beech-Nut, Plum, Gerber, Hain, Nurture and Sprout Foods, Inc., oppose any centralization, whether on an industry-wide or defendant-specific basis. The panel concluded the claims against each defendant are likely to rise or fall on facts specific to that defendant, such as the amount of heavy metals in its products, the results of its internal testing, if any, and its marketing strategies, thus centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation. A full-text copy of the Court's June 7, 2021 order is available at https://bit.ly/3xjeNu2 MDL 2998: Two Pork Supply Antitrust Disputes Transferred to Minn. ----------------------------------------------------------------- In case docketed "In Re: Pork Direct and Indirect Purchaser Antitrust Litigation," MDL No. 2998, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers one case each from the U.S. District Court Southern District of Florida and the Southern District of Texas, to the District of Minnesota and with the consent of that court, assigned it to Judge John R. Tunheim for coordinated or consolidated pretrial proceedings. The two actions on the motion are individual direct purchaser actions alleging a price fixing conspiracy among leading American pork producers, sharing factual questions arising from an alleged conspiracy, starting in or around 2009, among leading American pork producers to fix, raise, maintain and stabilize the price of pork in the United States. Plaintiffs in these actions allege that defendant Agri Stats, Inc. exchanged detailed, competitively sensitive, and non-public information about prices, capacity, sales volume, and demand through its specialized information-sharing service that provided benchmarking reports to defendants, which allegedly allowed them to monitor each other's production and thereby control pork supply and price. Movants seek an MDL consisting of only individual direct purchaser actions. The panel concluded that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary. A full-text copy of the Court's June 9, 2021 Transfer Order is available at https://bit.ly/2Uq0Snj MERIDIAN SENIOR: S.D. Illinois Partly Grants Bid to Stay Hall Suit ------------------------------------------------------------------ In the case, ROXANN HALL, on behalf of herself and all other persons similarly situated known and unknown, Plaintiff v. MERIDIAN SENIOR LIVING, LLC Defendant, Case No. 21-cv-55-SMY (S.D. Ill.), Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois granted in part and denied in part Meridian's Motion to Stay. Plaintiff Hall brings the putative class action against her former employer Meridian for violations of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. ("BIPA"). Hall worked at a Meridian senior living facility from 2019 to 2020 and clocked in and out from work each day utilizing Meridian's finger-sensor and retina-scan timekeeping systems. She alleges that Meridian violated BIPA by collecting and storing her biometric information without issuing proper notices, obtaining written consent, or disclosing its retention and destruction policies. The matter is now before the Court for consideration of Meridian's Motion to Stay, which the Plaintiff opposes. Discussion A. Brandenburg Meridian moves to stay the case pending the outcome in Brandenburg v. Meridian Senior Living, LLC, No. 20-cv-3198-SEM-TSH filed in June 2020 and currently pending in the U.S. District Court for the Central District of Illinois. In Brandenburg, the plaintiff seeks to represent a class of Meridian employees who scanned their fingerprints in Meridian's biometric time clock system in Illinois between June 2015 and the present. Meridian asserts that a stay will not prejudice the Plaintiff because her interest in pursuing her BIPA claim is identical to the plaintiff's in Brandenburg. However, unlike Brandenburg, the Plaintiff's proposed class extends beyond finger scans to retinol scans. Further, unlike the cases cited in support of a stay, both the case and Brandenberg are in their infancies -- motions to dismiss are pending and discovery is ongoing. Given these facts, Judge Yandle finds that the interests of justice would not be served by staying the case pending resolution of Brandenberg. B. Illinois Workers Compensation Act In McDonald v. Symphony Bronzeville Park, the Illinois Appellate Court held that the Illinois Workers Compensation Act ("IWCA"), 820 ILCS 305/1, does not preempt BIPA claims. That decision is currently on appeal to the Illinois Supreme Court. Meridian asserts that the Court should await the McDonald decision because it could be dispositive of Meridian's preemption defense. Where the Illinois Supreme Court has not ruled on an issue, decisions of the Illinois Appellate Courts control, unless there are persuasive indications that the Illinois Supreme Court would decide the issue differently. Judge Yandle holds that both Illinois courts and federal district courts have noted that it is unlikely that the Illinois Supreme Court will rule that IWCA preempts BIPA. Given this persuasive authority, she finds that a stay based on McDonald is not likely to simplify the issues, streamline trial, or reduce the burden of litigation on the parties. C. Statute of Limitations BIPA does not contain a limitations period. Meridian argues that the Plaintiff's claims are time-barred by a one-year statute of limitations, while he argues that the five-year catchall statute of limitations applies. Unlike the IWCA preemption issue, no Illinois Appellate Court has decided the appropriate statute of limitations for BIPA claims. Meridian contends that the Court should stay the case pending decisions from the Illinois Appellate Court in Tims v. Black Horse Carriers, Inc., No. 1-20-0562, and Marion v. Ring Container Techs., LLC, No. 3-20-0184. Judge Yandle holds that both cases will address the currently unsettled question of which statute of limitations period applies to BIPA claims. A decision from the Illinois Appellate Court may be binding because the Illinois Supreme Court has not yet decided the applicable statute of limitations for BIPA claims. Thus, the Judge finds it appropriate to stay this case pending the Tims and Marion decisions -- which are both fully briefed. Accordingly, Meridian's Motion to Stay pending the decisions in Tims and Marion is granted. D. Accrual Meridian also seeks a stay based on an interlocutory appeal pending before the Seventh Circuit that raises the question of when a BIPA claim accrues, citing See Cothron v. White Castle System, Inc., No. 20-3202 (7th Cir.). Specifically, the Seventh Circuit will determine whether a private entity only violates BIPA when it first collects an individual's biometric information or whether a private entity violates BIPA each time it collects or discloses biometric data in violation of 740 ILCS 15(b) or 15(d), citing Cothron v. White Castle Sys., Inc., No. 19-cv-00382, Doc. 141 (N.D. Ill. Oct. 1, 2020). The district court in White Castle stayed the case because the Seventh's Circuit decision will affect whether the plaintiff has some or no timely claims, and the Seventh Circuit agreed that the stay was warranted. Judge Yandle holds that the White Castle decision will be binding on the Court and could significantly affect the Plaintiff's claims. If the Seventh Circuit holds that a violation occurs only when the entity first collects or first discloses an individual's biometric data, the Plaintiff may have no timely BIPA claims depending on how the Illinois Appellate Court rules in Tims and Marion. And, even if the Plaintiff's claims survive, the White Castle decision will affect the scope of the putative class, discovery, and potential remedies. Conclusion For the foregoing reasons, Judge Yandle granted in part and denied in part Meridian's Motion to Stay. She stayed all proceedings and deadlines in the case pending resolution of Tims, Marion, and White Castle System, Inc., No. 20-3202. The parties are ordered to file a status report within 14 days of each ruling. Meridian's Motion to Dismiss is denied without prejudice with leave to refile once the stay is lifted. A full-text copy of the Court's June 29, 2021 Memorandum & Order is available at https://tinyurl.com/4sej3taf from Leagle.com. MONEYGRAM INT'L: Denial of Arbitration Bid in Fisher Suit Affirmed ------------------------------------------------------------------ In the case, JONATHAN FISHER, Plaintiff and Respondent v. MONEYGRAM INTERNATIONAL, INC., Defendant and Appellant, Case No. A158168 (Cal. App.), the Court of Appeals of California for the First District, Division Four, issued an Opinion: (i) affirming the superior court's order of Aug. 16, 2019, denying MoneyGram's petition to compel arbitration; (ii) granting as unopposed Fisher's request for judicial notice; (iii) denying Fisher's motion for new evidence; and (iv) awarding Fisher costs on appeal. Background MoneyGram is a global financial company that enables customers to transfer money to various locations in the United States and around the world. Consumers can make MoneyGram transactions online, through a mobile platform or kiosk, or at an agent location in retail stores such as Walmart. On Feb. 17 and 18, 2016, Fisher, a 63-year-old Vietnam War-era Veteran with poor eyesight, initiated money transfers at two different Walmart stores in California, the first for $2,000 to a recipient in Rockmart, Georgia, and the second for $1,530 to a recipient in Baton Rouge, Louisiana. In order to proceed with the transactions, Fisher was required to complete a MoneyGram Money Transfer Form (Send Form), which requests information regarding the sender, amount to be sent, receiver, destination and receiving options. MoneyGram processed Fisher's money transfer requests, and the funds were delivered to the intended recipients. On neither of these occasions did Fisher turn over the Send Form and try to read the Terms and Conditions on the reverse, which included an arbitration requirement (Arbitration Provision). But even if he had tried to read the tiny print, he would not have been able to do so -- even wearing his trifocal glasses -- at least not without a magnifying glass. Mr. Fisher sued MoneyGram in March 2019, claiming that the two money transfers he completed in February 2016 were induced by a "scammer," and that MoneyGram knew its system was used by scammers but failed to warn or protect Fisher from "the scheme he had fallen victim to." The scheme was for the scammer to promise the victim a large sum of money (lottery winnings, inheritances, grants, loans or other financial benefits) if only the victim would send a comparatively small sum to the scammer, said to represent taxes, import fees, or some other concocted story. Mr. Fisher alleged that MoneyGram's funds transfer service was used frequently in fraudulent transactions because under its policies the money would be immediately available upon transfer to the scammer at a Walmart store or other MoneyGram outlet. Other money transfer services, such as bank transfers, place a temporary hold on the funds to discourage or prevent fraudulent transactions. In fact, Fisher alleged, MoneyGram was so remiss in protecting its customers from fraud that it had been the subject of a Federal Trade Commission (FTC) permanent injunction since Oct. 21, 2009, requiring it to establish, implement, and maintain a comprehensive anti-fraud program to protect its consumers, citing Federal Trade Commission v. MoneyGram International, Inc. (N.D.Ill., Oct. 21, 2009, No. 09-cv-6576). But Fisher claims MoneyGram failed to abide by the injunction. The complaint alleges that MoneyGram (1) failed to disclose "fraud occurring via its services" as well as information necessary to detect and avoid such fraud; (2) knew that its system was being used to defraud consumers and failed to take steps to protect such consumers; and (3) failed to comply with the FTC order enjoining such steps be taken. Based on these allegations, Fisher purports to represent a class of "all other similarly situated persons who transferred money while in California using MoneyGram's money transfer service pursuant to a fraudulent scheme since Oct. 20, 2009." The complaint asserts one cause of action under the unfair competition law (UCL) (Bus. & Prof. Code, Section 17200, et seq.). It seeks restitution, injunctive and declaratory or other equitable relief, as well as attorney fees and costs under Code of Civil Procedure section 1021.5. In May 2019, MoneyGram petitioned to compel arbitration, and Fisher opposed the petition, arguing the agreement to arbitrate was invalid for two reasons. First, Fisher argued that no agreement to arbitrate was formed because MoneyGram did not obtain Fisher's informed consent to its terms. Second, Fisher argued that the Arbitration Provision was unenforceable because it was both procedurally and substantively unconscionable. In reply, MoneyGram contended that a valid agreement to arbitrate existed with no procedural or substantive unconscionability. MoneyGram also requested that the court sever any provisions deemed unenforceable. On Aug. 16, 2019, Judge Winifred Y. Smith of Alameda County Superior Court held a hearing and issued a written order denying MoneyGram's petition to compel arbitration. The court ruled the Arbitration Provision was unenforceable as both procedurally and substantively unconscionable, and it declined to sever any provision. It ruled, first, that the Arbitration Provision's "6 point font," placement "on the back side of the Send Form," and "take it or leave it nature" were "indications" of procedural unconscionability. Second, the court ruled that the Arbitration Provision's "one year statute of limitations," "requirement that any plaintiff pay the American Arbitration Association (AAA) commercial arbitration costs and fees," and the "waiver of attorneys' fees" were substantively unconscionable "in the aggregate," and that it "could not sever these three provisions because to do so would make material changes in the agreement as a whole." Given its ruling on the unconscionability issue, the court did not address Fisher's additional argument that no valid contract had been formed. MoneyGram appealed. Discussion In the case, the Court of Appeals assesses the validity of an arbitration provision in a consumer adhesion contract that reduces the length of the statute of limitations, invokes the application of the arbitrators' higher commercial fees, and requires consumers to bear their own costs and fees for experts and attorneys. A. Unconscionability Doctrine The unconscionability defense has been recognized by the United States Supreme Court as a general contract defense in California, and therefore a defense to an agreement to arbitrate. Applying the unconscionability defense to an arbitration agreement in California is not preempted by the Federal Arbitration Act (FAA). Because unconscionability is a defense to enforcement of a contract, the party challenging the contract has the burden of proof. The ultimate determination of unconscionability, however, is an issue of law, not fact. But factual issues may bear on that determination. Thus, to the extent the trial court's determination that the arbitration agreement was unconscionable turned on the resolution of conflicts in the evidence or on factual inferences to be drawn from the evidence, the Court of Appeals considers the evidence in the light most favorable to the trial court's ruling and review the trial court's factual determinations under the substantial evidence standard. B. Procedural Unconscionability To determine whether an arbitration provision satisfies the "procedural element of unconscionability,'" courts focus on two factors: oppression and surprise. Oppression arises from an inequality of bargaining power which results in no real negotiation and "`an absence of meaningful choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms. A showing of either oppression or surprise may render a contract procedurally unconscionable. Among other things, MoneyGram points to the fact that there were references on the front of the Send Form to "attached terms and conditions," which should have alerted Fisher to the Arbitration Provision on the back side of the form. But even if Fisher had looked on the back side, the Court of Appeals opines that there was little about the Arbitration Provision to make it stand out from the rest of the densely packed text of the Terms and Conditions. The word "Arbitration" is printed in bold type, but the rest of the Arbitration Provision is not. The entire Arbitration Provision is printed in all capital letters, but due to the small font, narrow characters, and faint typeface, it does not stand out distinctively from the surrounding text. The court's findings that the print size was 6 points and that it was inconspicuous were factual, supported by substantial evidence. The Court of Appeals agrees with its legal conclusion that the Arbitration Provision is procedurally unconscionable as a result. C. Substantive Unconscionability Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create overly harsh or one-sided results. Judge Smith found MoneyGram's Arbitration Provision substantively unconscionable based on three factors viewed in the aggregate. First, a shortened period of limitations, reduced from four years to one year; second, the provision that arbitration would be governed by the AAA's Commercial Rules, which would make the process more expensive for consumers than the otherwise applicable AAA Consumer Rules; and finally, the provision requiring each party to "bear its own costs and fees for experts and attorneys" effectively prevented Fisher's potential recovery of attorney fees under Code of Civil Procedure section 1021.5 (Section 1021.5) in the context of Fisher's UCL claim. The Court of Appeals agrees with Judge Smith's assessment. Suffice it to say, it thinks there is enough substantive unconscionability in each of these three clauses for them to weigh significantly in the balance against enforceability. Standing alone, the degree of substantive unconscionability flowing from each of these three issues is modest. But collectively, their impact is substantial. Accordingly, the Court of Appeals concludes that the AAA Commercial Rules provision in MoneyGram's Arbitration Provision produces an unacceptable deterrent effect on the exercise of Fisher's right to pursue a statutory remedy. D. Using a Sliding Scale, the Entire Arbitration Provision Is Unconscionable as a Matter of Law As noted, unconscionability works on a sliding scale: the greater the procedural unconscionability, the less substantive unconscionability is required to make the contract unenforceable, and vice versa. The Court of Appeals concludes that the procedural unconscionability was extremely high in the case and the substantive provisions also contributed significantly to the unconscionability, thereby making the entire Arbitration Provision unenforceable. E. Refusal to Sever the Unconscionable Provisions Was Not an Abuse of Discretion Finally, MoneyGram asks us to sever any unconscionable provisions of the Arbitration Provision but to enforce the balance. This form of remedy is expressly provided in Civil Code section 1670.5. On the issue of severance, the Court of Appeals reviews the superior court's decision only for abuse of discretion. Judge Smith explained her refusal to sever: "The court could not sever these three provisions because to do so would make material changes in the agreement as a whole." It is generally considered grounds for denying severance if the Arbitration Provision is "permeated" with unconscionability. The Court of Appeals finds no abuse of discretion in the superior court's decision to deny severance and to declare the entire Arbitration Provision unenforceable. The Arbitration Provision contains three clauses contributing to its substantive unconscionability. There is no single provision we could strike to eliminate its unconscionable taint. To the extent MoneyGram suffers "detriment" by the remedy we provide Fisher, it is not "undeserved." MoneyGram's Arbitration Provision shows every sign of having been designed to take unfair advantage of its customers. MoneyGram is now willing to have the Arbitration Provision enforced as significantly modified to avoid substantive unconscionability. The Court of Appeals would not presume to impose such a thoroughly different bargain on the parties based on the fallacious notion that the superior court had abused its discretion or that refusing to enforce the Arbitration Provision would somehow be unfair to MoneyGram. Disposition The Court of Appeals concludes that the arbitration provision is unconscionable largely because it was hidden on the back side of a money transfer order form, in tiny 6-point print that we deem virtually illegible. Because the arbitration provision operated largely to benefit MoneyGram at Fisher's expense, the Court of Appeals affirms the superior court's order denying MoneyGram's petition to compel arbitration. Fisher's request for judicial notice is granted as unopposed. His motion for new evidence is denied. Fisher is awarded costs on appeal. A full-text copy of the Court's June 29, 2021 Opinion is available at https://tinyurl.com/5bmaawrw from Leagle.com. MOSAIC BAYBROOK: Tex. App. Affirms Injunction Order in Cessor Suit ------------------------------------------------------------------ MOSAIC BAYBROOK: Tex. App. Affirms Injunction Order in Cessor Suit In the case, MOSAIC BAYBROOK ONE LP; MOSAIC BAYBROOK TWO, LP; MOSAIC BAYBROOK ONE GP LLC; MOSAIC BAYBROOK TWO GP LLC; MOSAIC RESIDENTIAL, INC.; ROBERT M. WEBER; VELISSA PARMER; ABID BHIMANI; MOSAIC GP FUND III LLC; EASTHAM CAPITAL FUND III (QP) LP; EASTHAM CAPITAL FUND IV, LP; AUSPAY-BAYBROOK, LLC; AUSPAY-MOSAIC GP, LLC; WILLIAMSBURG ENTERPRISES, LLLP; PHILIP SALEM; WIDAD SALEM; BAYBROOK LL, LLC; THE MATTHEW ROSENTHAL IRREVOCABLE TRUST 2007, AND TREE OPPORTUNITIES SERIES, LLC, Appellants v. TAMMY CESSOR AND PAUL SIMIEN, Appellees, Case Nos. 14-19-00514-CV, 14-19-00695-CV (Tex. App.), the Court of Appeals of Texas for the Fourteenth District, Houston, issued a Memorandum Opinion affirming the trial court's: -- temporary injunction order in favor of Tenant Appellees Tammy Cessor and Paul Simien; and -- denial of Baybrook Appellants' motion to dismiss pursuant to the Texas Citizens Participation Act ("TCPA"). Background The Tenant Appellees are plaintiffs in separate class-action lawsuits against Baybrook Appellants that were filed in two Harris County district courts. They were tenants at Baybrook Village Apartments. The Tenant Appellees alleged that the LP Defendants violated various landlord/tenant statutes. More specifically, Cessor asserted a statutory cause of action based on Baybrook Appellants' alleged violation of Section 92.019 of the Texas Property Code, which regulates the late fees that landlords may assess against tenants who fail to pay their rent on time. Simien asserted a statutory cause of action based on Baybrook Appellants' alleged violation of section 13.505 of the Texas Water Code. He alleged Baybrook Appellants charged tenants for "water and sewage charges" in excess of the amount of water and sewage charges for the complex actually paid by the Baybrook Appellants. The pertinent events leading up to the current lawsuit are: a. Sept. 10, 2018: In Simien's lawsuit, partial summary judgment was granted on liability in favor of Tenant Appellees. b. Oct. 24, 2018: The Simien lawsuit was certified as a class action. c. Oct. 31, 2018: The LP Defendants sold the apartment complex to Baybrook for $60.25 million. d. Nov. 12, 2018: The trial court held a class certification hearing on the Cessor lawsuit. A representative of the LP Defendants testified that the LP Defendants still owned the apartments. e. Nov. 21, 2018: The Cessor lawsuit was certified as a class action. f. Feb. 8, 2019: The Tenant Appellees filed a fraudulent transfer action, which is the underlying action in the present appeal, against Baybrook Appellants pursuant to TUFTA. They alleged that the sale of the apartment complex and the subsequent transfer of the sale money to various entities was intended to improperly remove assets from the reach of the Tenant Appellees and the Classes they represent. g. April 18, 2019: Baybrook Appellants filed a motion to dismiss pursuant to the TCPA. h. May 24, 2019: The Tenant Appellees filed a motion for temporary injunction. i. June 14, 2019: The trial court granted the Tenant Appellees' motion for temporary injunction. j. June 27, 2019: Baybrook Appellants filed a timely notice of appeal concerning the interlocutory order granting the temporary injunction. k. Aug. 12, 2019: The trial court denied Baybrook Appellants' motion to dismiss. l. Sept. 3, 2019: Baybrook Appellants filed a timely notice of appeal concerning the denial of their motion to dismiss. On appeal, the action was consolidated with Baybrook Appellants' appeal from the trial court's interlocutory order granting the temporary injunction. Discussion A. Temporary Injunction In what the Court of Appeals construes as their first and second issues, the Baybrook Appellants argue that the trial court erred by granting the Tenant Appellees' motion for temporary injunction. More specifically, in their first issue, Baybrook Appellants argue that the Tenant Appellees failed to present sufficient evidence that their claims were likely to succeed on the merits. And in their second issue, Baybrook Appellants assert that the temporary injunction order is void because it: (1) does not provide reasonable detail as to which accounts must be frozen; and (2) fails to identify what irreparable harm the Tenant Appellees would suffer. 1. Probable Right to Recovery Baybrook Appellants argue that the Tenant Appellees failed to present any evidence that they are likely to succeed on their underlying class-action claims arising from the Texas Property and Water Codes. However, they have not offered any authority for the proposition that to obtain injunctive relief grounded on a TUFTA claim, an applicant must prove a "case within a case" regarding the underlying transaction, such as in legal malpractice lawsuits. Because the Tenant Appellees presented evidence to demonstrate that Baybrook Appellants did not receive reasonably equivalent value in exchange for their transfer of the money to the Insiders and the transfer to the Insiders left the LP Defendants insolvent, the Court of Appeals concludes that the trial court did not abuse its discretion in determining that the Tenant Appellees had a probable right to recover on its fraudulent-transfer claims. 2. Irreparable Harm Baybrook Appellants next argue that the temporary injunction order fails to explain what irreparable injury the Tenant Appellees would sustain if the injunction were not issued. More specifically, they claim there was no testimony elicited showing that the remaining funds were at risk of being lost or depleted. Also, according to Baybrook Appellants, the trial court's injunction order fails to provide a specific amount for the potential value of the contingent damages that rely on the underlying claims. The Court of Appeals concludes that the trial court's order was sufficiently specific in defining the irreparable harm that the Tenant Appellees would suffer absent a temporary injunction. It finds that the testimony indicated that the LP Defendants only had about $470,000 in net assets. However, testimony from Baybrook Appellants' representatives indicated that the LP Defendants are in the process of ending their business. Additionally, based on that testimony, the trial court concluded that "the LP Defendants are in the winding down phase, will not receive any further assets or conduct further business, and absent injunctive relief, the remaining assets are likely to be dissipated before the claims of Plaintiffs and the classes in the two class action lawsuits are concluded." This adequately explains that, if the assets were not frozen, there is a likelihood that there would not be enough money available to cover any potential damage awards arising from the underlying actions. 3. Specificity Regarding Frozen Assets Baybrook Appellants next allege that the temporary injunction order is void on its face by failing to specifically "identify the accounts by the name of the bank or financial institution or any account number as to any of the Mosaic entities in which funds are to be frozen, as well as failing to specify what amount must be maintained in the unidentified "accounts" for LP Defendants." They rely on In re Meyer, No. 14-14-00833-CV, 2014 WL 5465621, at *3 (Tex. App.-Houston [14th Dist.] Oct. 24, 2014, no pet.) (mem. op.) (per curiam), for the proposition that an injunction order can be void for lack of specificity by failing to specifically identify the bank account numbers to be frozen. However, the Court of Appeals finds Meyer to be distinguishable from the present case. It concludes that (1) the Tenant Appellees presented sufficient evidence that their TUFTA claims were likely to succeed on the merits; (2) the temporary injunction order is not void because it identifies the irreparable harm Tenant Appellees would suffer; and (3) the temporary injunction order is not void for failing to identify the bank account numbers to be frozen. The Court of Appeals overrules Baybrook Appellants' first and second issues. B. Application In what the Court of Appeals construes as Baybrook Appellants' third issue, Baybrook Appellants argue that the Tenant Appellees' claims should have been dismissed pursuant to the TCPA. In several sub-issues, Baybrook Appellants (1) challenge the amount of monetary relief that the Tenant Appellees may obtain on their TUFTA claims and (2) assert that the trial court should have granted the motion to dismiss because (a) the Tenant Appellees lack standing by failing to obtain class-action certification; (b) conspiracy to commit fraud under TUFTA is not a viable claim for general creditors; (c) the Tenant Appellees are not creditors; and (d) the Tenant Appellees failed to present clear and specific evidence of fraudulent transfer and conspiracy to commit a fraudulent transfer. In their fourth issue, Baybrook Appellants assert that the trial court erred in granting attorneys' fees on the ground that their TCPA motion to dismiss was frivolous. As a preliminary note, the Tenant Appellees do not challenge the application of the TCPA; instead, they focus on demonstrating that they established by clear and specific evidence a prima facie case for each essential element of their fraudulent transfer and civil conspiracy to commit fraud claims. 1. Amount of Monetary Relief Available Regarding Baybrook Appellants' arguments challenging the amount of relief Tenant Appellees may seek, those arguments are irrelevant, the Court of Appeals opines. On appeal from the denial of a TCPA motion to dismiss, it says an appellant may challenge the underlying legal action seeking to be dismissed, not the "requested remedy." Thus, the Court of Appeals' focus is on the trial court's finding that the Tenant Appellees have provided "clear and specific prima-facie evidence supporting each element of their causes of action," not whether Tenant Appellees have pled the appropriate amount of damages. 2. Alleged Jurisdictional Issues Next, Baybrook Appellants argue for the first time on appeal that their motion to dismiss should have been granted on a number of jurisdictional grounds. They first aver that Tenant Appellees failed to seek class-action certification of the new TUFTA claims. Thus, Baybrook Appellants argue, the Tenant Appellees lack standing to bring their TUFTA claims "on behalf of non-existent class members." The Court of Appeals holds that the Tenant Appellees have standing because they have been personally aggrieved. More specifically, it says the Tenant Appellees have been injured by the allegedly fraudulent transfers, that injury is fairly traceable to the Baybrook Appellants' transfer, and the Tenant Appellees' injury is redressable by the remedies provided by TUFTA. Therefore, Baybrook Appellants' arguments are not properly addressed as the Tenant Appellees' standing, but instead, whether they have capacity to bring the TUFTA claims and obtain injunctive relief on behalf of others in the class in the underlying suits without first seeking new class-action certification for the TUFTA claims. But, because Baybrook Appellants did not file a verified denial challenging the Tenant Appellees' capacity or raise this issue in the trial court, this issue has been waived. 3. Prima-Facie Evidence Supporting Each Element of Fraudulent Transfer and Conspiracy to Commit Fraudulent Transfer Baybrook Appellants argue that the Tenant Appellees failed to present clear and specific prima-facie evidence supporting each element of their causes of action. The Tenant Appellees respond that they provided sufficient evidence to avoid dismissal. The Court of Appeals agrees with the Tenant Appellees. It concludes that the trial court did not err in denying Baybrook Appellants' TCPA motion to dismiss. Because Baybrook Appellants do not challenge the validity of the trial court's ruling on the independent ground of section 24.006, the Court of Appeals must affirm the trial court's order denying their motion to dismiss . Furthermore, the Baybrook Appellants only challenge the damages element, asserting that the Tenant Appellees' "purported 'damages' asserted under the TUFTA claims are not really damages at all." However, TUFTA authorizes monetary relief for parties affected by an alleged fraudulent transfer. And the Court of Appeals has previously affirmed a finding of civil conspiracy to commit a fraudulent transfer even when the creditor's claim has not yet been reduced to a judgment against the debtor. For these reasons, the Court of Appeals overrules Baybrook Appellants' third issue. 4. Attorney's Fees In their fourth and final issue, Baybrook Appellants argue that the trial court erred by granting attorney's fees. Given the unique nature and procedural history in the case and the deferential standard of review, the Court of Appeals concludes that it was within the trial court's discretion to find that Baybrook Appellants' TCPA motion to dismiss was frivolous. It overrules Baybrook Appellants' fourth issue. Conclusion The Court of Appeals affirms the trial court's temporary injunction order in favor of Tenant Appellees Cessor and Simien and the trial court's denial of Baybrook Appellants' motion to dismiss pursuant to TCPA. A full-text copy of the Court's June 29, 2021 Memorandum Opinion is available at https://tinyurl.com/55skuymy from Leagle.com. OCUGEN INC: Bronstein Gewirtz Reminds of August 17 Deadline ----------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Ocugen, Inc. ("Ocugen" or "the Company") (NASDAQ: OCGN) and certain of its directors on behalf of shareholders who purchased or otherwise acquired Ocugen securities between February 2, 2021 and June 2, 2021 (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/ocgn. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements and/or failed to disclose that: (1) the information submitted to the FDA was insufficient to support an EUA, (2) Ocugen would not file an Emergency Use Authorization with the FDA, (3) as a result of the foregoing, the Company's financial statements, as well as Defendants' statements about Ocugen's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/ocgn or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Ocugen you have until August 17, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. Contacts: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Hurwitz 212-697-6484 | info@bgandg.com [GN] OHIO LIVING: Shortchanges Workers' Pay, Kordie Says ---------------------------------------------------- Nicole Kordie, on behalf of herself and all others similarly situated, Plaintiff, v. Ohio Living and Ohio Living Communities, Defendants, Case No. 21-cv-03791, (S.D. Ohio, June 23, 2021), seeks unpaid overtime compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. Ohio Living is a non-profit, multi-site aging services organization, operating twelve life plan communities throughout the State of Ohio. Kordie worked for Ohio Living as a healthcare worker from December of 2020 until May of 2021. She alleges that Ohio Living failed to include nondiscretionary bonuses for working extra hours or shifts for which the employee was not scheduled to work, as well as nondiscretionary safety bonuses and nondiscretionary "appreciation pay" bonuses for overtime compensation. [BN] Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N. Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd., Suite #126 Columbus, OH 43207 Phone: (614) 949-1181 Fax: (614) 386-9964 Email: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com PACIFIC BELL: Stephens Sues Over Illegally Charged Late Fees ------------------------------------------------------------ Ladena Stephens, on behalf of herself and all others similarly situated against Pacific Bell Telephone Co., Defendant, Case No. CGC-21-592475 (Cal. Super., June 23, 2021), seeks damages resulting from the collection of alleged unlawful penalties, unjust enrichment, breach of implied warranty of fitness and for violation of California's Consumers Legal Remedies Act, and California's Unfair Competition Law. Pacific Bell is an internet service provider in California. Stephens is a Pacific Bell subscriber who claims that she was assessed $9.99 for the late payment of her internet bills. [BN] Plaintiff is represented by: Brittany Scott, Esq. L. Timothy Fisher, Esq. Thomas A. Reyda, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com bscott@bursor.com PARKING REIT: July 16 Settlement Fairness Hearing Set in Class Suit ------------------------------------------------------------------- Girard Sharp LLP and Blau & Malmfeldt issued the following statement regarding The Parking REIT Securities Litigation: ARTHUR MAGOWSKI, as custodian of his IRA, on behalf of himself and all others similarly situated, Plaintiff, v. THE PARKING REIT, INC., et al., Defendants. IN THE CIRCUIT COURT FOR BALTIMORE CITY Case No. 24-C-19-003125 LEAD CASE SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS AND DERIVATIVE ACTION TO: ALL COMMON STOCKHOLDERS OF THE PARKING REIT, INC. ("TPR" OR "COMPANY") WHO HAVE HELD CLASS SHARES AT ANY TIME SINCE MARCH 29, 2019 (THE "SETTLEMENT CLASS"). YOU ARE HEREBY NOTIFIED that the Parties to the above-captioned consolidated action ("Action") have reached a Settlement, and that the Court has preliminarily approved the Settlement and conditionally certified a settlement class comprised of TPR stockholders holding TPR common shares that were issued and outstanding as of March 29, 2019 ("Class Shares") at any time from and including March 29, 2019 until and including the date of Final Court Approval of the Settlement ("Settlement Class"). The Settlement, the complete terms and conditions of which are set forth in the Stipulation and Agreement of Compromise, Settlement and Release ("Stipulation"), fully and completely releases the claims of the Settlement Class and the derivative claims on behalf of TPR asserted in the Action. The Settlement also encompasses the claims asserted in a related action pending in the United States District Court for the District of Nevada and captioned SIPDA Revocable Trust, by Trenton J. Warner, Director, on behalf of itself and all others similarly situated v. The Parking REIT, Inc., et al., Case No. 2:19-cv-00428. The Settlement provides for a cash payment of $2,500,000 or, if after payment of all covered amounts and reserving for projected covered amounts, including attorneys' fees, expenses and costs, the remaining amount of coverage under certain TPR Insurance Policies as of the Payment Date, whichever amount is greater, to a trust account ("Settlement Trust Account"), and contribution of 175,000 shares of TPR common stock to the Settlement Trust Account which shares shall be purchased by a third-party investor ("Bombe Affiliate CU") for a total purchase amount of $2,056,250.00 which shall become part of the settlement funds ("Settlement Funds"). The Settlement Funds shall be reduced by costs, fees, and expenses for administration of the Settlement, the cost of providing notice to Settlement Class Members, any award of attorneys' fees and expenses to Plaintiffs' Counsel, and contribution awards to Plaintiffs ("Net Settlement Funds"). In addition, the Settlement provides for cancellation of 400,000 shares of TPR common stock scheduled to be issued to TPR's former Advisor and contemplates a tender offer by Bombe Affiliate CU for the purchase of up to 900,506 shares, approximately 15% of TPR common shares outstanding after the consummation of certain transactions involving TPR and Bombe Affiliate CU, the consummation of which is a condition precedent for implementation of the Settlement. YOU ARE HEREBY FURTHER NOTIFIED THAT a hearing will be held on July 16, 2021 at 2:00 p.m. Eastern Time before the Circuit Court for Baltimore City, Maryland to consider whether the Settlement Class should be finally certified, and whether the Settlement and Plaintiffs' application for attorneys' fees, expense reimbursement, and contribution awards should be finally approved as fair, reasonable, and adequate and in the best interests of the Settlement Class and of TPR with regard to the derivative claims asserted on its behalf. The hearing will be conducted by remote electronic means using Zoom; there will be no in-person hearing in the courthouse. The details and link for joining this hearing by Zoom will be posted two weeks before the hearing date of July 16, 2021 on the Settlement Administrator's website (www.theparkingreitsettlement.com) and on the corporate website of TPR under the Investor Relations section (www.theparkingreit.com/investor-relations/). IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED. If the Settlement becomes Final, members of the Settlement Class ("Settlement Class Members") will have released claims as against the Defendants; Settlement Class Members do not have the right to opt out or exclude themselves from the Settlement. Any objections to the proposed Settlement and/or Plaintiffs' application for attorneys' fees, reimbursement of expenses and contribution awards MUST be filed with the Court no later than July 2, 2021 in accordance with the instructions provided in the Long-Form Notice. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUNDS. The plan of allocation provides for prorated, per share distributions of the Net Settlement Funds to Settlement Class Members holding TPR common shares as of the Effective Date of the Settlement. No distribution will be made unless and until the Settlement is approved by the Court and becomes Final. There is no claims process in connection with the Settlement. Eligible Settlement Class Members need not take any action in order to receive distributions pursuant to the plan of allocation. THIS NOTICE IS ONLY A SUMMARY. IT DOES NOT DESCRIBE ALL THE DETAILS OF THE STIPULATION AND THE PROPOSED SETTLEMENT. The Long-Form Notice and the Stipulation are available on the Settlement Administrator's website (www.theparkingreitsettlement.com), the Investor Relations section of the Company's website (www.theparkingreit.com/investor-relatons/), the Securities and Exchange Commission's website through the EDGAR database where TPR filed a Form 8-K on April 26, 2021 attaching the Long-Form Notice as an exhibit, or by contacting Interim Settlement Class Counsel: Paul D. Malmfeldt, Blau & Malmfeldt, 566 West Adams Street, Suite 600, Chicago, IL 60661, Phone: (312) 443-1600, Email: pmalmfeldt@blau-malmfeldt.com; or Adam Polk, Girard Sharp LLP, 601 California Street, Suite 1400, San Francisco, CA 94108, Phone: (415) 981-4800, Email: apolk@girardsharp.com. PLEASE DO NOT CALL THE COURT OR COURT CLERK FOR INFORMATION. PORTERMATT ELECTRIC: Denial of Rubio's Involvement in Finley Upheld ------------------------------------------------------------------- The Court of Appeals of California, Fourth District, Division Three, affirms the trial court's denial of Frank Rubio's motion to intervene in the case, CHARLES FINLEY, et al., Plaintiffs and Respondents v. PORTERMATT ELECTRIC, INC., et al., Defendants and Respondents; FRANK RUBIO, Movant and Appellant, Case No. G059006 (Cal. App.). Mr. Rubio filed a putative class action lawsuit against employer PorterMatt for alleged wage and hour violations. Plaintiffs Finley and Mills later filed a similar class action lawsuit against PorterMatt, John F. Porter III, and Tim Matthews. In July 2018, Rubio filed a complaint in San Bernardino County asserting eight labor-related causes of action against PorterMatt. Rubio generally alleged PorterMatt failed to pay its employees for all hours worked, as well as for missed meal and rest breaks. Rubio filed the action on his own behalf and on behalf of a putative class (current and former PorterMatt employees). In December 2018, the Plaintiffs filed a complaint in Orange County asserting four labor related causes of action against PorterMatt. They generally alleged PorterMatt failed to provide itemized pay stubs and did not fully compensate for wages and hours. They filed the action on their own behalf and on behalf of a putative class (current and former PorterMatt employees). They also sought civil penalties on behalf of the Labor Workforce Development Agency (LWDA), under the Private Attorneys General Act (PAGA). In April 2019, Rubio and PorterMatt participated in a mediation hearing and were unable to settle the San Bernardino County case. In August 2019, the Plaintiffs and PorterMatt participated in a mediation hearing and agreed to a proposed a class-wide settlement. The proposed settlement agreement stated it had res judicata effect on Rubio's claims, "except to the extent that Rubio may opt out of this Settlement." In his San Bernardino County case, Rubio filed a first amended complaint to add a claim for PAGA penalties. In October 2019, the Plaintiffs filed a motion for preliminary approval of the class action settlement with PorterMatt; the court later continued the motion. In January 2020, Rubio filed a motion to intervene in the Plaintiffs' Orange County lawsuit against PorterMatt. In February 2020, following a hearing on the matter, the trial court denied Rubio's motion to intervene (the ruling will be covered more thoroughly in the discussion section of this opinion). It also continued the the Plaintiffs' motion for preliminary approval of the class action settlement. In March 2020, Rubio filed a notice of appeal from the trial court's order denying his motion for intervention. Discussion On appeal, Rubio argues he was entitled to mandatory intervention and the trial court abused its discretion by denying permissive intervention. The Court of Appeals disagrees. First, the Court of Appeals opines that Rubio was not entitled to mandatory intervention. It explains that in order to establish mandatory intervention, a proposed intervener must show (1) "an interest relating to the property or transaction which is the subject of the action"; (2) the party is "so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest"; and (3) the party is not adequately represented by existing parties." In the case, at the time of Rubio's motion to intervene, the Plaintiffs' proposed class action settlement agreement had not been approved by the trial court. Therefore, Rubio's ability to protect his own interests was not impaired or impeded because he could have objected to the proposed class action settlement, or he could have opted out and continued to pursue his own claims against PorterMatt. Thus, the Court of Appeals agrees with the trial court's legal analysis and the court's conclusion that: "Mandatory intervention is improper." Further, it would find no abuse of discretion were it to apply that standard of review. Moreover, while it is true that Rubio could not have opted out of the Plaintiffs' PAGA claims, that would be true even if the trial court had granted Rubio's motion to intervene. Therefore, because the Plaintiffs were merely acting as a proxy for the LWDA (as to the PAGA claims), Rubio was not entitled to mandatory intervention due to the Plaintiffs' PAGA claims. Second, the Court of Appeals opines that the trial court did not abuse its discretion in denying permissive intervention. The trial court considered the proper legal authorities and applied those authorities to the relevant facts. Based on its five stated reasons, the court found Rubio had not established the need for permissive intervention under the fourth prong of the legal test for permissive intervention. After reviewing the appellate record, the Court of Appeals finds substantial evidence to support the court's ruling (e.g., there is no evidence of deception in the proposed settlement between the Plaintiffs and PorterMatt). Thus, it finds the court did not abuse its discretion when it denied Rubio's motion for permissive intervention. Primarily relying on the reasons asserted for mandatory intervention, Rubio argues "the trial court failed to properly consider the significant and cognizable impairment to his interests, and therefore failed to properly weigh his reasons for intervention against the opposition." The Court of Appeals disagrees. It appears the trial court did, in fact, "properly consider" Rubio's alleged impairments to his interests, but the court determined his arguments were not "persuasive in the context of intervention." Perhaps Rubio may have persuaded a different trial court to grant him permissive intervention, but there is certainly nothing in the record to suggest the lower court's discretionary decision to deny him permissive intervention was "arbitrary, capricious or without rational basis." Disposition Based on the foregoing, the Court of Appeals affirms the trial court's denial of Rubio's motion to intervene. The Respondents are entitled to recover their costs on appeal. A full-text copy of the Court's June 29, 2021 Opinion is available at https://tinyurl.com/xfruwamh from Leagle.com. Justice Law Corporation, Douglas Han -- dhan@justicelawcorp.com -- Shunt Tatavos-Gharajeh -- statavos@justicelawcorp.com -- Daniel J. Park -- dpark@bglawyers.com; Yoon Law, Kenneth H. Yoon, Stephanie E. Yasuda and Brian G. Lee for Movant and Appellant. Wilshire Law Firm, Bobby Saadian, Justin F. Marquez -- justin@wilshirelawfirm.com -- Nicol E. Hajjar -- Nicol@wilshirelawfirm.com -- and Robert J. Dart -- bobby@wilshirelawfirm.com -- for Plaintiffs and Respondents. Hirschfeld Kraemer, Gregory S. Glazer -- gglazer@HKemploymentlaw.com -- and Benjamin J. Treger -- btreger@hkemploymentlaw.com -- for Defendants and Respondents. PROVENTION BIO: Levi & Korsinsky Reminds of July 20 Deadline ------------------------------------------------------------ The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Provention Bio, Inc. ("Provention Bio") (NASDAQ: PRVB) between November 2, 2020 and April 8, 2021. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the District of New Jersey. To get more information go to: https://www.zlk.com/pslra-1/provention-bio-inc-loss-submission-form?prid=17268&wire=5 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is no cost or obligation to you. Provention Bio, Inc. NEWS - PRVB NEWS CASE DETAILS: According to the filed complaint: (i) the teplizumab Biologics License Application ("BLA") was deficient in its submitted form and would require additional data to secure U.S. Food and Drug Administration 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. WHAT THIS MEANS TO SHAREHOLDERS: If you suffered a loss in Provention Bio, you have until July 20, 2021 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. NO COST TO YOU: If you purchased Provention Bio securities between November 2, 2020 and April 8, 2021, you may be entitled to compensation without payment of any out-of-pocket costs or fees. PROTECT YOUR FINANCIAL INTERESTS: Complete this brief submission form https://www.zlk.com/pslra-1/provention-bio-inc-loss-submission-form?prid=17268&wire=5 or call 212-363-7500 to discuss the case with Joseph E. Levi, Esq. WHY LEVI & KORSINSKY: Levi & Korsinsky have a proven track record of winning cases worth hundreds of millions of dollars for shareholders over a 20-year period. We represent and fight for shareholders who have been wronged by corporations. Levi & Korsinsky is a nationally recognized firm with offices in New York, California, Connecticut, and Washington, D.C. The Firm's Founding Partners, Joseph Levi and Eduard Korsinsky, have been representing shareholders and institutional clients for almost 20 years and have achieved remarkable results for clients in the U.S. and internationally. The firm, with more than 80 employees, is committed to fostering, cultivating and preserving a culture of diversity, equity and inclusion for employees and those that we represent. Our attorneys have extensive expertise representing investors in securities litigation with a track record of recovering hundreds of millions of dollars in cases. Levi & Korsinsky was ranked in Institutional Shareholder Services' ("ISS") SCAS Top 50 Report for 7 years in a row as a top securities litigation firm in the United States. The SCAS Top 50 Report identifies the top plaintiffs' securities law firms in the country, and year after year, ISS has recognized Levi & Korsinsky as a leading firm in the area of securities class action litigation. CONTACT: Levi & Korsinsky, LLP Joseph E. Levi, Esq. Ed Korsinsky, Esq. 55 Broadway, 10th Floor New York, NY 10006 jlevi@levikorsinsky.com Tel: (212) 363-7500 Fax: (212) 363-7171 www.zlk.com [GN] REKOR SYSTEMS: Pomerantz Law Firm Reminds of August 30 Deadline --------------------------------------------------------------- Pomerantz LLP on June 29 disclosed that a class action lawsuit has been filed against Rekor Systems, Inc. f/k/a Novume Solutions, Inc. ("Rekor" or the "Company") (NASDAQ: REKR; NVMM) and certain of its officers. The class action, filed in the United States District Court for the District of Maryland, Northern Division, and docketed under 21-cv-01604, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Rekor securities between April 12, 2019 and May 25, 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 Rekor securities during the Class Period, you have until August 30, 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. Rekor, through its subsidiaries, provides vehicle identification and management systems based on artificial intelligence in the United States, Canada, and internationally. One of the main drivers of Rekor's business is its automatic license plate recognition ("ALPR") technology, which the Company has pitched to investors as a major market opportunity since at least 2018. For example, Rekor has consistently touted the purportedly lucrative prospects of its uninsured vehicle enforcement diversion ("UVED") partnership with the State of Oklahoma ("Oklahoma"), under which the Company receives compensation and commission fees in exchange for using its technology to scan vehicle license plates and compare them against a database to identify vehicles without auto-insurance. Fueled by management commentary, Rekor's stock price has ballooned under the market perception that the Oklahoma UVED partnership is not only lucrative but the first stepping-stone to capturing similar deals with other municipalities. 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) Rekor's ALPR technology and UVED-related business is outclassed by global competitors with an established, dominant market share; (ii) it was unlikely that states would pass legislation authorizing deals similar to Rekor's Oklahoma UVED partnership because of, inter alia, state and local privacy laws and related public concerns; (iii) Rekor's UVED partnership was not as profitable as Defendants had led investors to believe because of known impediments to enrollment rates and costs associated with the partnership; (iv) accordingly, Rekor had overstated its potential revenues, profitability, and overall ALPR- and UVED-related business prospects; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. On May 10, 2021, a bill authorizing the establishment of a state UVED program was excluded from the Texas Legislature's Daily House Calendar and left pending in a state committee. Because May 10, 2021 was the deadline for the Texas UVED bill to move from the committee, news sources reported significant market speculation that the bill was dead. Further, on a post-market earnings call that same day to discuss Rekor's first quarter 2021 financial results, Defendant Berman also indicated that Rekor may not secure a UVED agreement with Texas. On news of the Texas UVED bill's exclusion from the Texas Legislature's Daily House Calendar, Rekor's stock price fell $5.20 per share, or 27.5%, to close at $13.71 per share on May 10, 2021. Then, following Defendants' post-market conference call with investors the same day, Rekor's stock price fell an additional $2.45 per share, or 17.87%, to close at $11.26 per share on May 11, 2021—representing a two-day total decline of $7.65 per share, or 40.45%. Then, on May 26, 2021, private investor Western Edge published a report addressing Rekor, entitled "Rekor Systems: Lackluster Growth Runway And Exaggerated Insurance Scheme Raise Substantial Downside Risk." The Western Edge report alleged, among other things, that global competition was "miles ahead" of Rekor in ALPR development and market establishment; that the Company's "realized results suggest management's potential revenue guidance could be overstated by up to 80%"; and that investors were at risk of facing a "massive downside if [the Company's] growth doesn't show up." The Western Edge report also noted that Rekor's predecessor in the Oklahoma UVED partnership had exited it because "the program is not economically feasible" given costs associated with the program and because "there was typically no consequences for individuals that simply ignored the fines/insurance requirements after they were identified." Also on May 26, 2021, Mariner Research Group ("Mariner") published a report addressing Rekor, entitled "REKR – Government documents do not support investor expectations." The Mariner report "highlight[ed] government documentation which shows that REKR's revenue opportunities are likely a fraction of what investors expect[.]" Among other things, Mariner alleged that "Oklahoma government budgets imply that REKR's much-vaunted UVED program is a sub $2MM revenue opportunity—almost 96% less than the >$40MM in revenue intimated by Rekor's CEO." The Mariner report likewise echoed the issues disclosed in the Western Edge report, including, inter alia, those that had caused Rekor's predecessor in the Oklahoma UVED partnership to exit the program. Following the publication of the Western Edge and Mariner reports, Rekor's stock price fell $0.44 per share, or 3.93%, to close at $10.77 per share on May 26, 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] ROCKET COMPANIES: Robbins Geller Files Securities Class Action -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on June 29 disclosed that it filed a class action seeking to represent purchasers of Rocket Companies, Inc. (NYSE:RKT) Class A common stock during the period between February 25, 2021 and May 5, 2021, both dates inclusive (the "Class Period"). The Rocket Companies class action lawsuit was filed in the Eastern District of Michigan and is captioned Qaiyum v. Rocket Companies, Inc., No. 21-cv-11528. The Rocket Companies class action lawsuit charges Rocket Companies and certain of its executives with violations of the Securities Exchange Act of 1934. If you suffered substantial losses and wish to serve as lead plaintiff of the Rocket Companies class action lawsuit or have questions concerning your rights regarding the Rocket Companies class action lawsuit, please visit our website by clicking here or contact Brian Cochran of Robbins Geller, at 800/449-4900 or 619/231-1058 or via e-mail at bcochran@rgrdlaw.com. You can view a copy of the complaint as filed at https://www.rgrdlaw.com/cases-rocket-companies-inc-class-action-lawsuit.html. CASE ALLEGATIONS: The Rocket Companies class action lawsuit alleges that, throughout the Class Period, defendants made false and misleading statements and failed to disclose that: (i) Rocket Companies' gain on sale margins were contracting at the highest rate in two years as a result of increased competition among mortgage lenders, an unfavorable shift toward the lower margin Partner Network operating segment and compression in the price spread between the primary and secondary mortgage markets; (ii) Rocket Companies was engaged in a price war and battle for market share with its primary competitors in the wholesale market, which was further compressing margins in Rocket Companies' Partner Network operating segment; (iii) the adverse trends identified above were accelerating and, as a result, Rocket Companies' gain on sale margins were on track to plummet at least 140 basis points in the first six months of 2021; (iv) as a result, the favorable market conditions that had preceded the Class Period and allowed Rocket Companies to achieve historically high gain on sale margins had vanished as Rocket Companies' gain on sale margins had returned to levels not seen since the first quarter of 2019; (v) rather than remaining elevated due to surging demand, Rocket Companies' company-wide gain-on-sale margins had fallen materially below pre-pandemic averages; and (vi) consequently, defendants' positive statements about Rocket Companies' business operations and prospects were materially misleading and/or lacked a reasonable basis. On May 5, 2021, Rocket Companies reported that it was on track to achieve closed loan volume within a range of only $82.5 billion and $87.5 billion and gain on sale margins within a range of only 2.65% to 2.95% for the second quarter of 2021. At the mid-point, this gain on sale margin estimate equated to a 239 basis point decline year-over-year and a 94 basis point decline sequentially, which represented Rocket Companies' lowest quarterly gain on sale margin in two years. The stunning collapse in Rocket Companies' gain on sale margin reflected the fact that the favorable market conditions purportedly being experienced by Rocket Companies during the Class Period had in fact reversed. During a conference call to explain the results, Rocket Companies' Chief Financial Officer and Treasurer, defendant Julie R. Booth, revealed that the sharp decline in quarterly gain on sale margin was being caused by three factors: (i) pressure on loan pricing; (ii) a product mix shift to Rocket Companies' lower margin Partner Network segment; and (iii) a compression in price spreads between the primary and secondary mortgage markets. Defendant Booth also admitted that certain of these trends began "at the end of Q1." On this news, the price of Rocket Companies Class A common stock fell by nearly 17% to close at $19.01 per share. As the market continued to digest the news in the days that followed, the price of Rocket Companies Class A common stock continued to decline, falling to a low of just $16.48 per share by May 11, 2021. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Rocket Companies common stock during the Class Period to seek appointment as lead plaintiff in the Rocket Companies class action lawsuit. A lead plaintiff is generally the movant with the greatest financial interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing the Rocket Companies class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Rocket Companies class action lawsuit. An investor's ability to share in any potential future recovery of the Rocket Companies class action lawsuit is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff in the Rocket Companies class action lawsuit, you must move the Court no later than 60 days from June 29, 2021. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. ABOUT ROBBINS GELLER RUDMAN & DOWD LLP: With 200 lawyers in 9 offices nationwide, Robbins Geller Rudman & Dowd LLP is the largest U.S. law firm representing investors in securities class actions. Robbins Geller attorneys have obtained many of the largest shareholder recoveries in history, including the largest securities class action recovery ever - $7.2 billion - in In re Enron Corp. Sec. Litig. The 2020 ISS Securities Class Action Services Top 50 Report ranked Robbins Geller first for recovering $1.6 billion for investors last year, more than double the amount recovered by any other securities plaintiffs' firm. Please visit http://www.rgrdlaw.comfor more information. Attorney advertising. Past results do not guarantee future outcomes. Services may be performed by attorneys in any of our offices. Contacts: Robbins Geller Rudman & Dowd LLP 655 W. Broadway, San Diego, CA 92101 • 619-231-1058 Brian E. Cochran, 800-449-4900 bcochran@rgrdlaw.com [GN] SIX FLAGS: Cal. App. Affirms Dismissal of Villegas Class Suit ------------------------------------------------------------- In the case, ANDREW VILLEGAS et al., Plaintiffs and Appellants v. SIX FLAGS ENTERTAINMENT CORPORATION, Defendant and Respondent, Case No. B295352 (Cal. App.), the Court of Appeals of California for the Second District, Division Four, affirms the judgment dismissing the Plaintiffs' putative class action for failure to bring it to trial within five years. Background The Plaintiffs and Appellants, Andrew Villegas, Jennifer Gilmore, Dustin Liggett, and Hans Gundelfinger, worked for Defendant and Respondent Magic Mountain, LLC, erroneously sued as Six Flags Entertainment Corp. (Magic Mountain). On April 9, 2013, the Plaintiffs filed their complaint, as individuals and on behalf of all others similarly situated, against Magic Mountain asserting claims for: (1) failure to provide meal periods; (2) failure to provide rest periods; (3) failure to pay overtime wages; (4) failure to pay minimum wage; (5) waiting time penalties; (6) record-keeping violations; (7) wage statement penalties; (8) suitable seating; (9) unfair business practices; and (10) penalties under the Private Attorneys General Act (PAGA). On June 11, 2013, the court issued its Initial Status Conference Order. The order required the parties to meet and confer to discuss the central legal and factual issues in the case, negotiate a case management plan, and submit a joint initial status conference class action response statement before the initial status conference. The order stayed the proceedings in their entirety, and precluded Magic Mountain defendants from filing responsive pleadings until the initial status conference, scheduled for Aug. 23, 2013. The parties were permitted, however, to informally exchange documents to facilitate their initial evaluation of the case. The parties attended the initial status conference on Aug. 23, 2013. On Oct. 2, 2013, the Plaintiffs propounded initial written discovery, initiating a lengthy and extensive discovery process, including motion practice. They deposed six "persons most knowledgeable" between 2014 and 2016. Belaire-West notices were sent to maintenance department employees on or about Jan. 21, 2015, and to a 20 percent sampling of seasonal employees on or about April 25, 2016. Also, in 2016, Magic Mountain produced a sampling of time card records and payroll data. On Nov. 1, 2016, the Plaintiffs filed their motion for class certification on behalf of a proposed class of over 21,000 current and former seasonal employees and over 167 current and former maintenance employees. The court set a briefing schedule for the opposition and reply, with a hearing date of April 25, 2017. On Dec. 29, 2016, the Plaintiffs moved for leave to amend their class certification motion. The court denied the Plaintiffs' motion to amend their certification motion because it violated the parties' earlier stipulation. It did, however, extend the briefing schedule for the class certification motion. Based on the court-ordered schedule, Magic Mountain filed its opposition to the class certification motion on March 28, 2017. After Magic Mountain filed its opposition, the Plaintiffs sought additional time to take depositions and obtained an extension of their deadline to file their reply from May 27, 2017 to Aug. 31, 2017. When the Plaintiffs sought an additional extension at an August 4, 2017 hearing, the court again warned the Plaintiffs about the five-year rule. It granted them the extension they sought and the discovery of additional electronic records, but denied their request for paper records because producing those records would have caused further delay. On Oct. 4, 2017, the court heard the class certification motion. It denied certification on the majority of the Plaintiffs' claims. It gave the Plaintiffs the opportunity, however, to submit a trial plan demonstrating manageability as to three of the proposed subclasses. On Jan. 24, 2018, the court considered the Plaintiffs' proposed trial plan. On Jan. 25, 2018, the court ultimately denied the Plaintiffs' motion for class certification in its entirety. On March 23, 2018, the Plaintiffs filed a notice of appeal from the order denying class certification, purporting to appeal under the "death knell" doctrine. On May 17, 2018, 55 days after the Plaintiffs filed the appeal, a different panel of the Court of Appeals dismissed the appeal on the ground the appeal was taken from a non-appealable order (because the death knell doctrine does not apply where PAGA claims remain in the trial court), and denied plaintiffs' request to treat their appeal as a writ petition. On Aug. 6, 2018, the trial court issued an order requesting supplemental briefing on the parties' PAGA discovery dispute. It continued the Aug. 13, 2018 status conference to Sept. 26, 2018 so it could consider the supplemental briefing. On Sept. 4, 2018, Magic Mountain moved to strike the Plaintiffs' PAGA claims. On Oct. 2, 2018, Judge Cole set a hearing on the Plaintiffs' PAGA discovery motions and Magic Mountain's motion to strike for Nov. 9, 2018. A t the November 9, 2018 hearing, the parties again discussed the five-year issue. On Nov. 13, 2018, the Plaintiffs filed an ex parte application for an order determining the date by which the case must be brought to trial. The same day, Magic Mountain filed a motion in limine to dismiss the case for failure to bring it to trial within five years. On Nov. 14, 2018, the court granted the Plaintiffs' ex parte application. It held that, with the exception of the initial stay from April 9, 2013 until Aug. 23, 2013, no other time periods were excludable from the five-year calculation. It reasoned that the action was not stayed during the pendency of the Plaintiffs' appeal because an appeal from a non-appealable order does not automatically stay the trial court proceedings, and there were no other time periods when it was impossible or impracticable to bring the action to trial. The court therefore concluded the five-year clock expired on Aug. 23, 2018. Because the case was not brought to trial before that date, "nor did the Plaintiffs request that a trial be set before that date," the court entered judgment in favor of Magic Mountain on Nov. 16, 2018. The Plaintiffs timely appealed. Discussion The matter is an appeal from a judgment dismissing the Plaintiffs' putative class action for failure to bring it to trial within five years, as required by Code of Civil Procedure section 583.310. The Plaintiffs contend the trial court erred by failing to exclude certain time periods from the five-year calculation during which, according to them, the case was either stayed and/or it was impossible or impracticable to bring the case to trial. The Plaintiffs also contend the court erred by denying their motion for class certification. I. The Dismissal Under Section 583.310 The Plaintiffs contend the trial court erred by dismissing their action for failure to bring it to trial within five years. They argue the trial court should have excluded from the five-year period: (i) the 118 days during which their appeal was pending because the appeal effected an automatic stay and, alternatively, prosecution of the case was impossible or impracticable during that period; and/or (ii) the 176 days from May 17, 2018 to Nov. 9, 2018 when Judge Jones was sitting pro tem at the Court of Appeal, various stays were purportedly in place, and it was impossible or impracticable to bring the action to trial. F The Court of Appeals disagrees. It reviews the legal question of whether the Plaintiffs' appeal automatically stayed proceedings in the trial court de novo. The trial court's determination not to exclude periods during which the Plaintiffs contend it was impossible, impracticable or futile to bring the action to trial within the meaning of section 583.340, subdivision (c), however, is reviewed for an abuse of discretion. As noted, on March 23, 2018, the Plaintiffs filed a notice of appeal of the trial court's order denying class certification, purportedly relying on the "death knell" doctrine. A different panel of the Court of Appeals dismissed the Plaintiffs' appeal on May 17, 2018 (55 days later), concluding the death knell doctrine did not apply where, as in the case, the Plaintiffs' representative PAGA claims remained in the trial court. The Court of Appeals court issued a remittitur on July 19, 2018 (118 days after the Plaintiffs' notice of appeal). The Plaintiffs contend during that 118-day period, all trial court proceedings were stayed as a matter of law. The Court of Appeals disagrees. It concludes that the Plaintiffs' cherry picked statements from the November 9 hearing regarding impossibility and impracticability do not constitute irreversible "findings," as they suggest. The trial court properly requested briefing on the subject, and issued a ten-page written ruling after reviewing both parties' arguments. Moreover, the trial court did not abuse its discretion by concluding the Plaintiffs were not reasonably diligent. In their reply brief, the Plaintiffs detail the "substantial record" of this "heavily litigated" case, including the names and dates of the depositions of 137 witnesses. The trial court acknowledged that the "discovery in the case has been extensive and thorough." That fact alone, however, is insufficient to demonstrate reasonable diligence. II. The Denial of Plaintiffs' Class Certification Motion In addition to their attack on the five-year dismissal, the Plaintiffs appeal from Judge Jones's order denying their motion for class certification. To obtain reversal, however, an appellant has the burden to show not only that the trial court erred but also that the error was prejudicial. In the case, even if the Court of Appeals were to agree the motion for class certification was erroneously denied, it says the Plaintiffs' action would have been properly dismissed under section 583.310 for the reasons discussed above. Accordingly, it need not address the merits of this aspect of the Plaintiffs' appeal. Disposition In light of the foregoing, the judgment is affirmed. Magic Mountain is awarded its costs on appeal. A full-text copy of the Court's June 29, 2021 Order is available at https://tinyurl.com/29ysmd4v from Leagle.com. Matern Law Group, Matthew J. Matern, Scott A. Brooks, Tagore O. Subramaniam; Altshuler Berzon, Michael Rubin -- mrubin@altber.com -- and James M. Finberg -- jfinberg@altshulerberzon.com -- for Plaintiffs and Appellants. Sheppard, Mullin, Richter & Hampton, Jason W. Kearnaghan -- jkearnaghan@sheppardmullin.com -- Robert E. Mussig -- rmussig@sheppardmullin.com -- and Matthew G. Halgren -- mhalgren@sheppardmullin.com -- for Defendant and Respondent. TABLEAU SOFTWARE: Sept. 14 Settlement Hearing Set in Class Suit --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP issued a statement regarding the Tableau Software Securities Settlement: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Civil Action No. 1:17-cv-05753-JGK CARRIE SCHEUFELE, JEFFREY SCHEUFELE and NICHOLAS ORAM, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. TABLEAU SOFTWARE, INC., CHRISTIAN CHABOT, THOMAS WALKER, PATRICK HANRAHAN and CHRISTOPHER STOLTE, Defendants. Civil Action No. 1:17-cv-05753-JGK CLASS ACTION SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED TABLEAU SOFTWARE, INC. ("TABLEAU") CLASS A COMMON STOCK DURING THE PERIOD BETWEEN FEBRUARY 5, 2015 AND FEBRUARY 4, 2016, INCLUSIVE ("CLASS" OR "CLASS MEMBERS") THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED that a hearing will be held on September 14, 2021, at 2:30 p.m., before the Honorable John G. Koeltl at the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007 to determine whether: (1) the proposed settlement (the "Settlement") of the above-captioned Litigation as set forth in the Stipulation of Settlement dated April 16, 2021 ("Stipulation")1 for $95,000,000 in cash should be approved by the Court as fair, reasonable and adequate; (2) the Judgment as provided under the Stipulation should be entered dismissing the Litigation with prejudice; (3) to award Lead Plaintiff's Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), which is discussed below) and, if so, in what amount; and (4) the Plan of Allocation should be approved by the Court as fair, reasonable and adequate. The Coronavirus (COVID-19) is a fluid situation that creates the possibility that the Court may decide to conduct the Settlement Hearing by video or telephonic conference, or otherwise allow Class Members to appear at the hearing by phone or video conference, without further written notice to the Class. In order to determine whether the date and time of the Settlement Hearing have changed, or whether Class Members must or may participate by phone or video conference, it is important that you monitor the Court's docket and the Settlement website, www.TableauSecuritiesLitigation.com, before making any plans to attend the Settlement Hearing. Any updates regarding the Settlement Hearing, including any changes to the date or time of the hearing or updates regarding in-person, telephonic or video conference appearances at the hearing, will also be posted to the Settlement website, www.TableauSecuritiesLitigation.com. Also, if the Court requires or allows Class Members to participate in the Settlement Hearing by telephone or video conference, the phone number for accessing the telephonic conference or the website for accessing the video conference will be posted to the Settlement website, www.TableauSecuritiesLitigation.com. IF YOU PURCHASED OR ACQUIRED TABLEAU CLASS A COMMON STOCK FROM FEBRUARY 5, 2015 THROUGH FEBRUARY 4, 2016, INCLUSIVE, YOUR RIGHTS ARE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. To share in the distribution of the Settlement Fund, you must establish your rights by submitting a Proof of Claim and Release form by mail (postmarked no later than August 24, 2021) or electronically (no later than August 24, 2021). Your failure to submit your Proof of Claim and Release by August 24, 2021 will subject your claim to rejection and preclude you from receiving any recovery in connection with the Settlement of this Litigation. If you purchased or acquired Tableau Class A common stock from February 5, 2015 through February 4, 2016, inclusive, and did not previously request exclusion from the Class in response to the Notice of Pendency of Class Action provided in June 2020, you will be bound by the Settlement and any judgment and release entered in the Litigation, including, but not limited to, the Judgment, whether or not you submit a Proof of Claim and Release. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), and a Proof of Claim and Release, you may obtain these documents, as well as a copy of the Stipulation (which, among other things, contains definitions for the defined terms used in this Summary Notice) and other Settlement documents, online at www.TableauSecuritiesLitigation.com, or by writing to: Tableau Securities Litigation Claims Administrator c/o Gilardi & Co. LLC P.O. Box 43398 Providence, RI 02940-3398 1-888-788-4733 Inquiries should NOT be directed to Tableau, the other Defendants, Defendants' Counsel, the Court, or the Clerk of the Court. Inquiries, other than requests for the Notice or for a Proof of Claim and Release, may be made to Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP Ellen Gusikoff Stewart 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 1-800-449-4900 IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY LEAD PLAINTIFF'S COUNSEL FOR AN AWARD OF ATTORNEYS' FEES NOT TO EXCEED 28% OF THE $95,000,000 SETTLEMENT AMOUNT AND EXPENSES NOT TO EXCEED $1,500,000, PLUS INTEREST EARNED ON BOTH AMOUNTS AT THE SAME RATE AS EARNED BY THE SETTLEMENT FUND. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND RECEIVED BY LEAD COUNSEL AND DEFENDANTS' COUNSEL BY AUGUST 24, 2021 IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: May 7, 2021 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 1 The Stipulation can be viewed and/or obtained at www.TableauSecuritiesLitigation.com. TARENA INTERNATIONAL: Frank R. Cruz Reminds of Aug. 23 Deadline --------------------------------------------------------------- The Law Offices of Frank R. Cruz on June 28 disclosed that a class action lawsuit has been filed on behalf of persons and entities that purchased or otherwise acquired Tarena International, Inc. ("Tarena" or the "Company") (NASDAQ: TEDU) securities or American Depositary Shares ("ADSs") between August 16, 2016 and November 1, 2019, inclusive (the "Class Period"). Tarena investors have until August 23, 2021, to file a lead plaintiff motion. On April 30, 2019, Tarena revealed that it could not timely file its fiscal 2018 annual report due to an ongoing "review of certain issues identified during the course of the audit of the registrant's financial statements for the year ended December 31, 2018, including issues related to the registrant's revenue recognition." On this news, Tarena's ADSs price fell 1.2%, to close at $5.02 per ADS on May 1, 2019, thereby damaging investors. On May 17, 2019, the Company disclosed that it was notified Tarena was not in compliance with NASDAQ listing rules due to the failure to timely file its 2018 annual report. On this news, Tarena's ADSs fell 4.8%, to close at $3.73 per ADS on May 20, 2019, thereby damaging investors. On July 24, 2019, Tarena disclosed that it expected that fiscal 2017 and prior periods "may need to be restated and should not be relied upon, pending the completion of the Independent Audit Committee Review." On this news, Tarena's ADSs fell 4.7%, to close at $1.63 per ADS on July 25, 2019, thereby damaging investors. Finally, on November 1, 2019, Tarena announced the results of its investigation, including a list of revenue inaccuracies for fiscal years 2014 through 2018, expense inaccuracies and irregularities, and undisclosed related party transactions. Tarena further disclosed that it "anticipates that the total amount of revenue misstatement between fiscal years 2014 through 2018 to be less than RMB900 million, representing approximately 11.5% of the total revenue previously reported by the Company for such period." On this news, Tarena's ADSs dropped 9.4%, to open on November 4, 2019, the next trading day, at $0.76, thereby damaging investors further. 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 that: (1) certain employees were interfering with external audits of Tarena's financial statements for certain periods; (2) Tarena suffered from revenue and expense inaccuracies; (3) Tarena engaged in business transactions with organizations owned, invested in or controlled by Tarena employees or their family members, which in some instances were not properly disclosed by Tarena; (4) as a result of the foregoing, Tarena's financial statements from 2014 through the end of Class Period were not accurate; and (5) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Tarena securities during the Class Period, you may move the Court no later than August 23, 2021 to ask the Court to appoint you as lead plaintiff. To be a member of the Class 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. If you purchased Tarena securities, 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 Frank R. Cruz, of The Law Offices of Frank R. Cruz, 1999 Avenue of the Stars, Suite 1100, Los Angeles, California 90067 at 310-914-5007, by email to info@frankcruzlaw.com, or visit our website at www.frankcruzlaw.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. Contacts: The Law Offices of Frank R. Cruz, Los Angeles Frank R. Cruz, 310-914-5007 fcruz@frankcruzlaw.com www.frankcruzlaw.com [GN] TARENA INTERNATIONAL: Rosen Law Firm Reminds of Aug. 23 Deadline ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on June 29 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Tarena International, Inc. (NASDAQ: TEDU) between August 16, 2016 and November 1, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Tarena investors under the federal securities laws. To join the Tarena class action, go http://www.rosenlegal.com/cases-register-2094.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) certain employees were interfering with external audits of Tarena's financial statements for certain periods; (2) Tarena suffered from revenue and expense inaccuracies; (3) Tarena engaged in business transactions with organizations owned, invested in or controlled by Tarena employees or their family members, which in some instances were not properly disclosed by Tarena; (4) as a result of the foregoing, Tarena's financial statements from 2014 through the end of Class Period were not accurate; and (5) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than August 23, 2021. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-2094.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] TD AMERITRADE: Dismissal of Knowles' 2nd Amended Complaint Upheld ----------------------------------------------------------------- The United States Court of Appeals for the Eighth Circuit affirms the dismissal with prejudice of the second amended complaint in the lawsuit entitled Russell D. Knowles, individually and as attorney in fact and personal representative of the estate of Bernard A. Knowles, on behalf of themselves and all others similarly situated; Plaintiffs-Appellants v. TD Ameritrade Holding Corporation; TD Ameritrade; TD Ameritrade Clearing, Inc.; TD Ameritrade Investment Management, L.L.C., Defendants-Appellees, Case No. 19-3684 (8th Cir.). Plaintiff Russell Knowles appeals the district court's order dismissing with prejudice his second amended complaint against TD Ameritrade, Inc. and related entities (collectively, "TD Ameritrade"). Mr. Knowles held a joint taxable brokerage account with TD Ameritrade. The relationship between Knowles and TD Ameritrade was governed by various agreements, including a "TD Ameritrade Investment Management, LLC Service Agreement" (the "Agreement"). TD Ameritrade offered its customers an optional tax-loss harvesting feature for the investment accounts. Tax-loss harvesting is a strategy designed to lower taxes on stock-trading profits by selling securities at a loss to offset potential capital gains. Certain TD Ameritrade customers had the ability to opt-in to the computerized tax-loss harvesting tool (the "TLH Tool"). The TLH Tool operates by reviewing a customer's account daily to determine if the securities in the customer's account have unrealized losses exceeding a 5% threshold. If the threshold is met, the TLH Tool automatically sells the securities at a loss. In most cases, the TLH Tool quickly replaces the sold securities by reinvesting in new securities. Knowles alleges the first two times the TLH Tool sold his securities, it promptly replaced the securities by reinvesting in new ones. On Dec. 24, 2018, certain securities in Knowles's trading account met the 5% threshold, and the TLH Tool was triggered. But, after selling off a sizable portion of Knowles's securities, the TLH Tool failed to reinvest Knowles's funds in new securities. He alleges the TLH Tool's failure to reinvest left approximately 35% of his account value idle and uninvested for 18 days. He alleges this failure to reinvest caused him damages exceeding $16,000 during the 18-day delay. Upon investigation, Knowles learned the TLH Tool's failure to reinvest was the result of a systemic glitch that impacted many other customers. The TLH Tool failed to reinvest Knowles's funds in an effort to avoid violating the "Wash Sale Rule," an IRS regulation which prohibits an investor from claiming a tax loss if the investor repurchases the same security either 30 days before or after selling the same security for a loss (26 U.S.C. Section 1091). He alleges that TD Ameritrade negligently set up the TLH Tool to toggle sales between only two groups of securities; so, if both groups of securities experienced a 5% loss within 30 days, the TLH Tool did not have another pool of securities from which to purchase after selling both sets of devalued securities at losses. Mr. Knowles filed this class-action lawsuit against TD Ameritrade, alleging claims for breach of contract and negligence. He alleges TD Ameritrade failed to (1) reasonably prepare for the TLH Tool to trigger the Wash Sale Rule, and (2) create and administer the TLH Tool in a way that would most benefit TD Ameritrade's customers. TD Ameritrade filed a motion to dismiss Knowles's Second Amended Complaint (the "SAC"), and the district court granted the motion, dismissing the case with prejudice. The district court reasoned that the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") preempted Knowles's putative state-law class action claim. The district court further found that even if SLUSA did not apply, Knowles failed to state a plausible claim for breach of contract or negligence. Knowles appeals. Preemption Circuit Judge Leonard Steven Grasz, writing for the Panel, notes that there is no dispute that Knowles' allegations: (1) assert a covered class action under SLUSA, (2) are based in state law, and (3) involve conduct in connection with the purchase and sale of a covered security. The fight is over the third prong of SLUSA's preemptive test--whether Knowles has alleged a misrepresentation or omission by TD Ameritrade or a manipulative or deceptive device employed by TD Ameritrade. Mr. Knowles argues that the district court erred in holding that his claims are preempted by SLUSA because his claims are not rooted in misrepresentation, but in TD Ameritrade's failure to operate the TLH Tool in the manner promised under the Agreement. The Appeals Court disagrees. Judge Grasz notes that SLUSA does not preclude "genuine contract actions," citing Zola v. TD Ameritrade, Inc., 889 F.3d at 924 (8th Cir. 2018). To avoid SLUSA preemption, the allegations must be rooted in interpretation of contract terms and not allegations of misrepresentations or omissions. After reviewing the SAC, the Appeals Court agrees with the district court's assessment that "nondisclosure is the linchpin of the investors' case." The crux of all of Knowles's claims is that TD Ameritrade failed to disclose: (1) how the TLH Tool would operate in the event it triggered the Wash Sale Rule, and (2) the side effects of the TLH Tool's operation when "market conditions soured." Judge Grasz opines that Knowles has failed to demonstrate how his claims are connected to the Agreement. Judge Grasz adds that while Knowles generally cites to a provision in the Agreement that describes the operation of the TLH Tool, the cited provision does not establish any deadlines for how quickly TD Ameritrade was required to reinvest a client's funds or how the TLH Tool would operate in the event it triggered the Wash Sale Rule. The Appeals Court, therefore, holds that SLUSA preempts Knowles's class action claims because he failed to demonstrate these claims are rooted in a violation of any specific contract provision. While, on its face, the operative complaint focuses on TD Ameritrade's alleged improper administration of the TLH Tool, the allegations are insufficient to demonstrate TD Ameritrade breached any contract terms. Therefore, Knowles's class action claims are rooted in TD Ameritrade's omissions in disclosing information about the operation of the TLH Tool, which triggers SLUSA preemption. The district court did not err in dismissing Knowles's class action claims with prejudice on the basis of SLUSA preemption, Judge Grasz holds. Dismissal of Individual Breach of Contract and Negligence Claims Next, the Appeals Court addresses whether the district court erroneously dismissed Knowles's individual claims for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mr. Knowles argues the district court erred in dismissing his breach of contract claim because the district court: (1) required him to "clearly establish" his claim rather than plausibly allege it, and (2) incorrectly interpreted certain Agreement provisions as a disclaimer from responsibility for the performance of the TLH Tool. The Appeals Court concludes that these arguments lack merit. The Agreement provision at issue states TD Ameritrade "does not represent or guarantee that the objectives of the TLH [Tool] will be met. The performance of the replacement security may be better or worse than the performance of the security that is sold for TLH [Tool] purposes." The district court dismissed Knowles's claims, holding that he failed to allege TD Ameritrade breached any contract terms or promises in the administration of the TLH Tool. Despite referencing several contract excerpts throughout the SAC, Knowles never explicitly identified the contractual provision purportedly violated by TD Ameritrade, Judge Grasz finds. Accordingly, the allegations failed to provide TD Ameritrade with reasonable notice of the breach of contract claim as required by Rule 8 of the Federal Rules of Civil Procedure. While Knowles generally alleged various duties owed by TD Ameritrade to perform the contract with care, skill, reasonable expediency, and faithfulness, these vague and conclusory allegations were insufficient to survive a motion to dismiss under Rule 12(b)(6), Judge Grasz holds. The Appeals Court next considers the dismissal of Knowles's negligence claims. Under Nebraska law, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages. The Appeals Court concludes that the duty Knowles alleges in his negligence claim arose out of the contract between the parties and, thus, activated the economic loss rule, which precludes a negligence cause of action. Knowles argues his mention of the implied duty of good faith and fair dealing under his breach of contract claim saves his tort claim from application of the economic loss rule. But the allegations in the negligence claim clearly focus on TD Ameritrade's perceived duties to properly create, establish, and manage the TLH Tool, Judge Grasz opines. These duties are not grounded in tort law. Knowles has failed to set forth any persuasive argument as to how TD Ameritrade owed these purported duties independent of a contractual agreement. The Panel, therefore, affirms the district court's dismissal of Knowles's negligence claim. Futility Last, the Appeals Court considers Knowles's alternative argument that if dismissal was proper, the district court should have given him leave to amend instead of dismissing the case with prejudice. The Panel reviews the district court's dismissal of the SAC with prejudice for abuse of discretion. Judge Grasz notes that the district court allowed Knowles to amend his complaint multiple times, and Knowles was still unable to plead adequate claims. Accordingly, the Appeals Court concludes the district court did not abuse its discretion in dismissing the SAC with prejudice. The judgment of the district court is affirmed. A full-text copy of the Court's Opinion dated June 24, 2021, is available at https://tinyurl.com/3jn9mnrj from Leagle.com. TOTAL LIFE: Bid to Dismiss Williams' 1st Amended Class Suit Denied ------------------------------------------------------------------ The U.S. District Court for the District of Minnesota denies the Defendant's Motion to Dismiss the First Amended Class Action Complaint in the lawsuit captioned MARILYN WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. TOTAL LIFE CHANGES, LLC, Defendant, Case No. 20-2463 (MJD/HB) (D. Minn.). Plaintiff Marilyn Williams is an Alabama resident, who resided in Minnesota from June 2019 to September 2020. In June 2019, Williams moved to Minnesota to pursue an employment opportunity. Defendant Total Life Changes, LLC ("TLC") is a Michigan-based company that develops and sells consumer health and wellness products. In June 2020, Williams discovered TLC's Iaso Raspberry Lemonade Tea Instant ("Tea"), which TLC advertised as hemp tea that aids in weight loss. She knew that she was subject to random drug testing at work, so she wanted to purchase a product that would not cause her to fail a drug test. In June 2020, Williams "began corresponding with Emily Roberts, a Regional Director for TLC" about her interest in purchasing TLC products. She told "Roberts that her job conducted random drug tests and, accordingly, she wanted a product that would not cause her to fail a drug test. Roberts recommended that the Plaintiff purchase the Tea since there is no tetrahydrocannabino ("THC") in raspberry. Williams then purchased one bag of the Tea and one box containing Resolution Drops and Life Drops. She received the products in the mail. The package of Tea that Williams received in the mail stated on the front: "0.0% THC." On the back, it stated: "This proprietary formula is powered by 100 mg of organic Broad-Spectrum Hemp Extract with 0% laboratory certified THC content." TLC sells its Tea on its website, which has a badge stating: "100% Authentic Guaranteed." The website also states: "This proprietary formula is powered by 100mg of organic Broad Spectrum Hemp Extract with 0% laboratory certified THC content." Ms. Williams states that she relied on TLC's representations that the Tea contained 0.0% THC and began consuming the Tea daily, beginning on July 12, 2020. On July 15, 2020, Williams' employer subjected her to a random drug test. Her employer told her that she failed the drug test because it came back positive for THC. On July 20, 2020, Williams' employer terminated her for failing her drug test. She lost her income and was forced to move back to Alabama in September 2020. Ms. Williams purchased an at-home marijuana drug test kit and tested a serving of the Tea, which came back positive for THC. On Aug. 9, 2020, she purchased a sample pack of the Tea from TLC and tested a serving of the tea from that package with the at-home marijuana drug test kit. That Tea sample also tested positive for THC. On Nov. 6, 2020, Williams commenced an action against TLC in Minnesota state court. On Dec. 3, 2020, TLC removed Williams' Complaint to this Court based on diversity jurisdiction and under the Class Action Fairness Act of 2005 ("CAFA"). On Feb. 24, 2021, Williams filed a First Amended Class Action Complaint ("FAC") against TLC alleging: Count 1: Minnesota Consumer Fraud Act ("MCFA"); Count 2: Minnesota Unlawful Trade Practices Act ("MUTPA"); Count 3: MUTPA, Minn. Stat. Section 325D.09, et seq.; Count 4: Minnesota False Statements in Advertising Act ("MFSAA"); Count 5: Fraud by Omission; and Count 6: Unjust Enrichment. Counts 1, 2, and 4 are brought under the Minnesota Private Attorney General statute. The Plaintiff seeks to represent the following class: All persons who within the last six years of the filing of this complaint: (1) purchased Raspberry Lemonade Flavored Iaso Tea Instant from Defendant or Defendant's Life Changers; (2) while residing in Minnesota; (3) for personal use and not for resale. The Plaintiff seeks compensatory damages, restitution, penalties, a permanent injunction enjoining the Defendant from continuing the unlawful, unjust, unfair, and deceptive acts and practices, and such other further relief that the Court deems just and equitable. The Defendant now moves to dismiss the FAC in its entirety. Discussion The Court holds that the Plaintiff has standing to assert the statutory claims brought under Minnesota's Private Attorney General Act, although she is not currently a Minnesota resident. Based on the FAC, Williams was a Minnesota resident at the time her claims arose, she received the alleged misrepresentations in Minnesota, and she was injured in Minnesota. The Plaintiff has stated a claim for violation of the underlying Minnesota consumer statutes for injuries she incurred in Minnesota while she was a Minnesota resident. Therefore, she has standing to assert those claims through the Private Attorney General Statute whether or not she is currently a Minnesota resident, District Judge Michael J. Davis states. The Private Attorney General Act provides for private remedies and applies only to those claimants, who demonstrate that their cause of action benefits the public. In evaluating public benefit, courts consider: (1) the degree to which the defendant's alleged misrepresentations affected the public; (2) the form of the alleged representation; (3) the type of relief sought; and (4) whether the alleged misrepresentations are ongoing (Knotts v. Nissan N. Am., Inc., 346 F.Supp.3d 1310, 1328 (D. Minn. 2018)). The Court holds that, here, the Plaintiff's claims benefit the public. Count 3: MUTPA, survives because the MUTPA provides a private cause of action, so a plaintiff may pursue relief directly under the statute, Judge Davis holds, citing Johnson v. Bobcat Co., 175 F.Supp.3d 1130, 1140 (D. Minn. 2016) (citing Minn. Stat. Section 325D.15). Judge Davis opines that the direct MUTPA claim brought in Count 3 states a claim upon which relief may be granted, because the Plaintiff alleges that TLC knowingly misrepresented the ingredients in the Tea to her while she was a Minnesota resident, causing damage to her while she was a Minnesota resident. The Court rejects TLC's assertion that the Plaintiff's Minnesota statutory claims for injunctive relief fail because she is not currently a Minnesota resident. Generally, Minnesota consumer statutes do not apply extraterritorially, which means that they may be applied only to conduct that occurred in Minnesota. Here, the Plaintiff received TLC's alleged misrepresentations while she was in Minnesota, purchased the Tea in Minnesota, consumed the Tea in Minnesota, and was injured in Minnesota, all while she was a Minnesota resident, Judge Davis notes. All of Plaintiff's claims are based on conduct that occurred in Minnesota while she was a Minnesota resident. TLC's misrepresentations allegedly caused her to lose her job and, thus, forced her to move away from Minnesota. Although the Plaintiff is currently an Alabama resident, Alabama has no connection to the events in this lawsuit, Judge Davis also notes. There would be no basis to apply Alabama consumer protection law. At this early stage of litigation, the Court concludes that Williams has pled a plausible claim for injunctive relief under the Minnesota statutes because Williams has pled past violations of the Minnesota statutes, she was forced to leave Minnesota due to TLC's actions and it is not clear that she does not wish to return to Minnesota where she could be harmed again, and she alleges that other Minnesotans will be harmed in the future if injunctive relief does not issue. The Court holds that Williams has adequately pled a claim for fraud by omission by alleging that TLC had special knowledge regarding the THC levels in its Tea based on its laboratory analysis of the Tea, that she did not have access to that knowledge, and that TLC failed to share that knowledge with the Plaintiff and other consumers. Hence, the motion to dismiss the fraud by omission claim is denied. The Court also denies the Defendant's motion to dismiss the unjust enrichment claim because, as permitted by the Federal Rule of Civil Procedure 8, the Court routinely allows plaintiffs to plead unjust enrichment in the alterative at this stage of the litigation. Accordingly, based upon the files, records, and proceedings herein, the Court is ordered that the Defendant's Motion to Dismiss the First Amended Class Action Complaint is denied. A full-text copy of the Court's Memorandum of Law & Order dated June 24, 2021, is available at https://tinyurl.com/nn23km82 from Leagle.com. Chloe A. Raimey -- craimey@nka.com -- Matthew H. Morgan -- morgan@nka.com -- Anna P. Prakash -- aprakash@nka.com -- Nichols Kaster PLLP; Aaron W. Rapier -- arapier@rapierlawfirm.com -- Rapier Law Firm; and David Fish, The Fish Law Firm, P.C.; Counsel for Plaintiff. Lauri Anne Mazzuchetti -- lmazzuchetti@kelleydrye.com -- and Glenn Timothy Graham -- ggraham@kelleydrye.com -- Kelley Drye & Warren, LLP; and Kristina Kaluza -- kkaluza@dykema.com -- Dykema Gossett PLLC, Counsel for Defendant. TRANSUNION LLC: Robinson+Cole Attorney Discusses Court Ruling ------------------------------------------------------------- Wystan Ackerman, Esq., of Robinson+Cole Class Actions Insider, in an article for JDSupra, reports that on June 25, the U.S. Supreme Court issued a new decision on the requirement that plaintiffs have "standing" to sue in federal court. More specifically, the Court addressed what is required for a plaintiff to demonstrate "concrete harm." Following this decision, defendants in class actions will have significant strategic decisions to make about whether and when to challenge the standing to sue of class members. In TransUnion LLC v. Ramirez, Sergio Ramirez learned that TransUnion, one of the major credit reporting agencies, identified him as a "potential match" to someone on the Office of Foreign Assets Control (OFAC) list of terrorists, drug traffickers and other criminals with whom it is unlawful to do business. Although by all accounts Ramirez was a law-abiding citizen, a car dealership refused to sell a car to him because TransUnion identified him as a potential match to the OFAC list simply because he shared the same first and last names with someone on the list (without checking any other information). Ramirez brought a class action suit under the Fair Credit Reporting Act, alleging that TransUnion failed to "follow reasonable procedures to assure maximum possible accuracy" in credit reports, as required by that statute. He also alleged that disclosures made to him by TransUnion after he requested his credit report were inaccurate. Ultimately a class was certified, the case was tried to a jury, and the jury awarded over $60 million, later reduced by the Ninth Circuit to about $40 million. The Supreme Court addressed whether all or only some of the class members were entitled to recover. Out of a total of 8,185 class members, TransUnion issued credit reports to third parties on 1,853 of them during the relevant time period. The remaining 6,332 did not have credit reports issued to any third party, but complained about inaccurate disclosures made to themselves. The Supreme Court concluded that only the 1,853 had suffered "concrete harm" and thus had standing to sue. Doing some quick math, it appears the Court reduced TransUnion's liability by about 80%. Justice Kavanaugh wrote the majority opinion. He explained that, even where Congress has created a right to sue under a statute, Article III of the Constitution, which provides for courts to decide "cases" or "controversies," requires courts to "assess whether the alleged injury to the plaintiff has a ‘close relationship' to a harm ‘traditionally' recognized as providing a basis for a lawsuit in American courts." (Opinion, at 9.) This is straightforward when there is physical or monetary harm, and can also include "reputational harms, disclosure of private information and intrusion upon seclusion," but overall is less clear when the harm is intangible. (Id.) Applying this test, the Court concluded that the class members whose credit reports were provided to third parties had standing to sue because their harm was similar to the longstanding tort of defamation. (Id. at 17.) But the bulk of the class, whose credit reports were inaccurate but never disseminated during the class period, did not have standing on the "reasonable procedures" claim because publication of the false information is a traditional requirement for defamation (although they might have had standing to sue for injunctive relief). (Id. at 19-20.) The risk of future harm, the Court wrote, was too speculative and unproven because there was no evidence that many of this group of class members were even aware that TransUnion had identified them as a potential match to the OFAC list. "[M]any of them would first learn that they were ‘injured' when they received a check compensating them for their supposed ‘injury.'" (Id. at 23.) With respect to the claims about inaccuracies in disclosures made when credit reports were requested, the Court characterized these as "formatting violations" and mere "procedural" violations that failed to meet the test of "a harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts." (Id. at 25.) The Court sent the case back to the Ninth Circuit for reconsideration of the class certification decision and other issues. (Id. at 27.) Four justices dissented. In brief, Justice Thomas's view is that any violation of private, individual rights where Congress creates a private right and a cause of action is sufficient to confer standing. Stressing how the majority took the law in a new direction, he wrote that "never before has this Court declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal court if those rights deviate too far from their common-law roots." (Thomas, J., dissenting, at 12-13.) Justice Kagan (joined by Justices Breyer and Sotomayor) joined Justice Thomas's dissent with a qualification. They would not alter the Court's prior precedent under which "Article III requires a concrete injury even in the context of a statutory violation," but would find standing to sue on all of the claims in this case, and would give substantial deference to Congress. Justice Kagan wrote that "[o]verriding an authorization to sue is appropriate when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue." (Kagan, J., dissenting, at 3.) So what does all this mean for defending against class certification in putative class actions? What I found most significant was that the Court confirmed that "[e]very class member must have Article III standing in order to recover individual damages," a proposition that Chief Justice Roberts had previously endorsed in a concurring opinion, but which had not previously been stated by a majority of the Court. (Opinion, at 15.) In a footnote, however, the Court stated that "[w]e do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class," citing an Eleventh Circuit decision that requires district courts to consider whether individual issues of standing predominate over common issues when deciding class certification. (Id. at 15 n.4.) The Eleventh Circuit stated in that case that, in some circumstances, it might be appropriate for a district court to certify a class in which some class members would not have standing and deal with that issue later in the proceeding (while noting that such an approach may be inappropriate where many class members do not have standing). The courts of appeals are split on whether plaintiffs in class actions must establish standing of class members at the class certification stage, with some circuits saying that only the named plaintiffs need to have standing, and others requiring that all class members have standing. The Supreme Court may well take that issue up in a future case. Significantly, footnote 9 in Justice Thomas's opinion suggested that there may be circumstances in which, based on the Court's decision, state courts, some of which have less rigorous standing requirements, might have jurisdiction over claims (even under federal statutes) that cannot be brought in federal court. In some instances, federal courts finding a lack of standing have remanded cases to state court where a defendant would prefer to litigate in federal court. This presents significant strategic considerations for defendants. In some circuits, defendants may be able to defeat class certification because a substantial portion of the class does not have standing. But there also could be cases where a defendant might decide it is better off not challenging the issue of whether a portion of the class has standing until after class certification is decided, or not challenging the standing issue at all and instead challenging those claims on the merits. If a class is likely to be certified, a final judgment against a portion of the class on the merits could be more advantageous to a defendant than a finding of lack of standing in federal court that may leave open the possibility for state court litigation. [GN] TWO RIVERS: Dismissed Without Prejudice as Party From Paulson Suit ------------------------------------------------------------------ In the case, JOHN PAULSON, Individually and on Behalf of all Others Similarly Situated, Plaintiff v. TWO RIVERS WATER AND FARMING COMPANY, JOHN R. McKOWEN, WAYNE HARDING, and TIMOTHY BEALL, Defendants, Civil Action No. 19-cv-02639-PAB-NYW (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado grants the Plaintiff's Motion to Dismiss Two Rivers Water and Farming Company as a Party. The Plaintiff brings a securities class action against the Defendants. Their amended complaint alleges that McKowen, Harding, and Beall were officers of Defendant Two Rivers. The Plaintiff alleges that Two Rivers and McKowen formed GrowCo, Inc. to "capitalize on the burgeoning marijuana industry in Colorado." To support their operations, defendants offered securities to investors ("Offerings"). With the Offerings, the Defendants provided "sales presentations, memoranda of terms, exchange note purchase agreements, exchange agreements, investor questionnaires, and other documents which purported to make material disclosures to investors about GrowCo and the Securities Offerings." The Plaintiff alleges that the Offering documents omitted material information about McKowen, including a 1987 disciplinary action, fine, and suspension with the National Association of Securities Dealers, a 1995 bankruptcy, and a 1992 default judgment in connection with a complaint before the Indiana Securities division. The Defendants dispute these allegations and deny liability for the claims. McKowen moved to dismiss the complaint on the basis that the information underlying the allegations against him "concerned the distant past, was not required to be disclosed, and was not material to investors' decisions to purchase GrowCo securities." This motion was pending when the parties and the Defendants' insurance carrier, Starstone Specialty Casualty Insurance Co., agreed to engage in mediation before retired Denver District Court Judge William Meyer. The parties ultimately reached a settlement in August 2020, id., and on Oct. 9, 2020, the Plaintiff filed an unopposed motion for preliminary approval of the settlement, approval of the notice to the class, preliminary certification of the class for the purposes of settlement, appointment of class counsel, and the scheduling of a fairness hearing. On Jan. 25, 2021, the magistrate judge granted a motion to withdraw by counsel for Two Rivers and issued an order to show cause why she should not impose sanctions on Two Rivers for failure to defend in the absence of legal representation. On March 15, 2021, the Plaintiff filed a motion for a status conference regarding Two Rivers' failure to hire counsel and failure to respond to the order to show cause. The Plaintiff requested that the Court hold a status conference and, if the status conference could not be held before March 16, that the Court hold in abeyance a ruling on the motion for preliminary approval until the Court held a status conference. This motion is currently pending. On April 6, 2021, the Plaintiff filed a motion to dismiss Two Rivers as a party. The motion for preliminary approval seeks certification of a settlement class consisting of: "All persons or entities who currently hold claims based on Securities of GrowCo, and who purchased or otherwise acquired the securities through Offerings listed below, during the time period beginning October 2014 through December 2017 (the Class Period), and suffered Alleged Losses." In exchange for the release of all claims of the Settlement Class against all the Defendants, the Settlement Agreement provides that Starstone will pay $1.5 million for the benefit of the Class. The parties agree that this amount provides a "substantial and immediate benefit to the Class" and is appropriate given that GrowCo is in bankruptcy and Two Rivers's financial situation makes it unlikely that it will be able to satisfy a judgment. The parties arrived at this amount after reviewing the Defendants' insurance policy, which covers claims up to $2 million minus the cost of the defense. The $1.5 million figure "represents substantially all of the remaining insurance coverage net of defense costs to date." The Plaintiff also considered that, if he persisted with litigation, "the amount of insurance coverage available to satisfy a judgment would be substantially less than the Settlement because as defense costs increase, available funds for settlement decrease. Analysis The Plaintiff asks the Court to dismiss Two Rivers without prejudice from the lawsuit pursuant to Fed. R. Civ. P. 41(a)(2) in order to allow the settlement approval process to move forward. He argues that the dismissal of Two Rivers does not implicate Rule 23(e) because it would not constitute a dismissal of the class claims, issues, or defenses, and would not change the terms of the Settlement Agreement. Judge Brimmer finds that notice to the class proposed for the purposes of settlement is not required because the dismissal of Two Rivers is without prejudice. Where the dismissal of a defendant is without prejudice, the Court need not provide notice to the proposed class under Rule 23(e). Because dismissing Two Rivers without prejudice will not bind the prospective class members, notice to the proposed class is unnecessary. Accordingly, the Judge will grant the Plaintiff's motion to dismiss because there is no prejudice to Two River from its dismissal and notice to the class is not required under Rule 23(e). Conclusion For the foregoing reasons, Judge Brimmer grants Paulson's Motion to Dismiss Two Rivers Water and Farming Company as a Party. He dismisses Defendant Two Rivers without prejudice. The Judge denied as moot Paulson's Motion for Status Conference Regarding Defendant's Failure to Hire Counsel and Failure to Show Cause and the Plaintiff's Request for Judicial Notice in Support of its Motion to Dismiss. A full-text copy of the Court's June 29, 2021 Order is available at https://tinyurl.com/t74he9kc from Leagle.com. UBIQUITI INC: Lieff Cabraser Reminds of July 19 Deadline -------------------------------------------------------- The law firm of Lieff Cabraser Heimann & Bernstein, LLP on June 29 disclosed that class action litigation has been filed on behalf of investors who purchased or otherwise acquired the securities of Ubiquiti Inc. ("Ubiquiti" or the "Company") (NYSE:UI) between January 11, 2021 and March 30, 2021, inclusive (the "Class Period"). If you purchased or otherwise acquired Ubiquiti securities during the Class Period, you may move the Court for appointment as lead plaintiff by no later than July 19, 2021. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. Your share of any recovery in the actions will not be affected by your decision of whether to seek appointment as lead plaintiff. You may retain Lieff Cabraser, or other attorneys, as your counsel in the action. Ubiquiti investors who wish to learn more about the litigation and how to seek appointment as lead plaintiff should click here or contact Sharon M. Lee of Lieff Cabraser toll-free at 1-800-541-7358. Background on the Ubiquiti Securities Class Litigation Ubiquiti, headquartered in New York, New York, manufactures and sells wireless data communication and wired products for enterprises and homes. The action alleges that, throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company minimized the severity of its data breach in January 2021; (2) hackers had obtained full access to Ubiquiti's servers and also obtained access to, among other things, all databases, user database credentials, and secrets required to forge single sign-on (SSO) cookies; (3) as a result of the data breach, attackers could remotely access Ubiquiti's customers' devices; and (4) 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. On March 30, 2021, following the close of the market, cybersecurity news website Krebs on Security ("Krebs") reported that Ubiquiti had understated the scale of its data breach, which began in December 2020, and that the Company's statement on the breach "downplayed and [was] purposefully written to imply that a 3rd party cloud vendor was at risk and that Ubiquiti was merely a casualty of that, instead of the target of the attack." According to the Krebs report, a Ubiquiti security professional noted that the Company had been aware for months that attackers had "administrative access to all Ubiquiti AWS accounts, including . . . all user database credentials, and secrets required to forge single sign-on (SSO) cookies." On this news, the Company's stock price fell $50.70, or 14.5%, from its closing price of $349.00 on March 30, 2021, to close at $298.30 per share on March 31, 2021, on unusually heavy trading volume. On April 4, 2021, Krebs published another article, highlighting that Ubiquiti continued to "confirm[] and reinforce[] th[e] claims" from the March 30, 2021 article. About Lieff Cabraser Lieff Cabraser Heimann & Bernstein, LLP, with offices in San Francisco, New York, and Nashville, is a nationally recognized law firm committed to advancing the rights of investors and promoting corporate responsibility. The National Law Journal has recognized Lieff Cabraser as one of the nation's top plaintiffs' law firms for fourteen years. In compiling the list, the National Law Journal examines recent verdicts and settlements and looked for firms "representing the best qualities of the plaintiffs' bar and that demonstrated unusual dedication and creativity." Law360 has selected Lieff Cabraser as one of the Top 50 law firms nationwide for litigation, highlighting our firm's "laser focus" and noting that our firm routinely finds itself "facing off against some of the largest and strongest defense law firms in the world." Benchmark Litigation has named Lieff Cabraser one of the "Top 10 Plaintiffs' Firms in America." For more information about Lieff Cabraser and the firm's representation of investors, please visit https://www.lieffcabraser.com/. [GN] UNITED STATES: Court Denies Bid to Certify Class in Lohmann Suit ---------------------------------------------------------------- In the case, PAUL LOHMANN, et al., Plaintiffs v. THE UNITED STATES, Defendant, Case No. 19-cv-994C (Fed. Cl.), Judge Kathryn C. Davis of the U.S. Court of Federal Claims: (i) denies the Plaintiffs' Motion for Class Certification and Appointment of Class Counsel and Amended Motion for Class Certification and Appointment of Class Counsel; and (ii) denies as moot the Defendant's alternative request to stay the administration of any class until a dispositive ruling in the matter. Background The Named Plaintiffs are 10 reserve component ("RC") soldiers who were temporarily mobilized from the RC to active duty and assigned to Fort Hood, Texas, for multiple temporary tours of duty between fiscal years ("FYs") 2014 and 2017. The Plaintiffs allege that they were released from active duty and ordered to return to their homes of record ("HOR") at the conclusion of each temporary duty assignment. Each served on Temporary Change of Station ("TCS") orders that authorized per diem at a rate of 55% of the locality rate, pursuant to paragraph 4950 of the Joint Travel Regulations ("JTR") dated Oct. 1, 2014 and paragraph 4250(A)(1)(b) of subsequent JTRs dated Nov. 1, 2014 through April 1, 2017. Some of the Plaintiffs served on Permanent Change of Station ("PCS") orders at Fort Hood immediately before their TCS tour(s) began. The Plaintiffs claim that while at their TCS location, they were all required to live off of the installation due to the unavailability of government-provided housing, ultimately requiring them to maintain two households -- i.e., their primary/permanent residence at their HOR and their off-installation housing at Fort Hood. Despite devoting time and money to accommodating off-installation housing, with an authorization to receive a 55% per diem allowance, the Plaintiffs allege they were wrongly denied per diem payments for FYs 2015 through 2017. They further allege that the Army based these denials on an erroneous rule requiring a multi-day break in service between PCS and TCS duty assignments. This rule resulted from a 2015 U.S. Army Audit Agency report that investigated the circumstances surrounding the potentially unauthorized payment of TCS entitlements to 146 First Army soldiers. According to the Plaintiffs, the 2015 Audit Report rule contravened the applicable JTRs, which required a minimum break in service of only one day. The Plaintiffs allege that the injury caused by the Army's application of this erroneous rule extended beyond their individual claims. According to them, as of July 2016, there were 405 RC soldiers assigned to long-term temporary duty at Fort Hood and more than 1,000 additional RC soldiers assigned to long-term temporary duty at other locations throughout the Continental United States. They believe most of these Reservists were denied per diem for FYs 2015 through 2017 based on the 2015 Audit Report rule. Prior to initiating the suit, the Plaintiffs attempted for several years to press their claims for per diem both within and outside the Army. They assert that "these inquiries reached the Army's Deputy Chief of Staff for Manpower and Personnel Plans, Programs, and Policies (Army G-1) office at the Pentagon;" however, the Army never issued a final decision on the matter. On July 11, 2019, the Plaintiffs filed the instant action on behalf of themselves and a proposed class of similarly situated RC soldiers. Their Complaint seeks back pay for the per diem entitlements that the Army allegedly owes them and the proposed class under 37 U.S.C. Section 474(a)(4) (Travel and Transportation Allowances) and the JTRs. Additionally, they seek pre-judgment and post-judgment interest, costs, and attorneys' fees, as well as an incentive payment to compensate them for their efforts and participation in the proposed class action. On July 18, 2019, the Principal Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs ("PDASA") sent a letter to the Plaintiff s' counsel responding to the counsel's March 2018 letter. The PDASA determined, after reviewing the Plaintiffs' materials, that they are authorized to per diem entitlements for their active duty periods in FYs 2016 and 2017. The PDASA further determined that the Plaintiffs are not authorized per diem entitlements for their active duty period in FY 2015 because their TCS orders were retroactively amended several weeks after they were released from active duty under their PCS orders to create a two-day break in service between their then-current TCS orders and previous PCS orders. On March 9, 2020, the Defendant moved pursuant to Rule 52.2(a) of the Rules of the United States Court of Federal Claims ("RCFC") for an order remanding this matter to the Secretary of the Army with instructions to submit the Plaintiffs' claims to the Army Board for Correction of Military Records ("ABCMR") and staying further proceedings pending the remand decisions. In November 2020, the ABCMR issued decisions in the Plaintiffs' remand proceedings. In each case, the Board agreed with the PDASA's decision, finding the Plaintiffs are entitled to per diem payments for FYs 2016 and 2017 but are not entitled to per diem payments for FY 2015 due to the JTR's requirement that there be a break in service of at least one day. With respect to FY 2015, the ABCMR found that the retroactive amendment of the Plaintiffs' orders "to create a false break in service" was "extraordinary" and violated the JTR's prohibition on retroactive revocation and/or modification of orders. The Board recommended correcting each Plaintiff's military records to show eligibility for per diem entitlements for FYs 2016 and 2017 and paying the Plaintiffs per diem based on this correction, less payments the Plaintiffs already received, if any, as authorized by the PDASA's letter. The ABCMR recommended denial of any other relief. It appears, at least in the case of Plaintiff Lopez, that the Office of the Secretary of the Army has since acted on the ABCMR's recommendation and corrected the Plaintiffs' records. As a result, the Defense Finance and Accounting Agency ("DFAS") has provided instructions to initiate the process of calculating and issuing per diem payments for FYs 2016 and 2017. On March 11, 2020, shortly after the Defendant moved for a remand, the Plaintiffs filed their Motion for Class Certification and Appointment of Class Counsel. Their motion sought certification of three subclasses of similarly situated RC soldiers, including: a. Subclass A: Consisting of certain RC soldiers who served a PCS tour of duty during FYs 2013 and/or 2014 whose orders instructed the soldier to return to his or her HOR and be released from active duty upon arrival. Each of these soldiers was released from active duty and traveled to his or her HOR at the conclusion of FY 2014. Each was subsequently ordered to return to active duty at Fort Hood on TDY orders for FYs 2015 and/or 2016 and was authorized per diem at the 55% rate. Each soldier requested per diem for FYs 2015 and/or 2016 in accordance with the JTR, and it was denied by the Army; b. Subclass B: Consisting of RC soldiers who never served on PCS tours but instead served multiple TDY tours at the same duty location during FYs 2014 through 2017 and whose TDY orders authorized per diem at the 55% rate. Each of these soldiers was released from active duty and traveled to his or her HOR at the conclusion of each tour. Each soldier requested per diem for each tour in accordance with the JTR, and it was denied by the Army; and c. Subclass C: Consisting of certain RC soldiers similarly situated to the members of subclasses A or B who were paid per diem at the 55% rate and had their payments wrongly recouped by the Army. Further briefing on the Plaintiffs' motion was stayed, along with all other proceedings, during the remand period. On Dec. 30, 2020, following the ABCMR's remand decisions, the Plaintiffs filed an Amended Motion for Class Certification and Appointment of Class Counsel, renewing their request that the Court certifies the proposed subclasses. As in the original motion, the Plaintiffs argue that they satisfy the class certification standards set forth in RCFC 23(a) and (b). In its opposition, the Defendant argues that the scope of any class certified by the Court should be limited to what remains of the case after remand. In the Defendant's view, the ABCMR provided complete relief to the Plaintiffs on their claims related to FYs 2016 and 2017 ("FY 2016/2017 claims") and, as such, those claims are moot and cannot proceed on a class basis. It asserts that the remaining FY 2015 claim does not satisfy all the requirements of RCFC 23. Because of the alleged difficulties in managing a class, the Defendant moves, in the alternative, to stay class notice and administration pending resolution of the Plaintiffs' claims on the merits. Discussion To resolve the Plaintiffs' request for class certification, Judge Davis must address two distinct questions: (1) does mootness prevent the Plaintiffs from proceeding on behalf of a class with respect to their FY 2016/2017 claims, and (2) have the Plaintiffs satisfied the RCFC 23 requirements to certify a class with respect to their FY 2015 claim? The Judge answers both questions in the negative. A. Plaintiffs' FY 2016/2017 Claims are Moot and, Therefore, a Class Action with Respect to those Claims is Moot. The Defendant raises a threshold issue regarding certification of the Plaintiffs' FY 2016/2017 claims. It argues that such claims have been mooted by the ABCMR's decisions finding each Plaintiff eligible for per diem allowances for FYs 2016 and 2017. The Plaintiffs disagree, contending that the ABCMR has done nothing more than determined that they are owed per diem payments for those fiscal years -- payments they have yet to receive—and that additional relief can be afforded by the Court. First, Judge Davis finds that the Plaintiffs' FY 2016/2017 claims are moot. She opines that the alleged violation with respect to the Plaintiffs' FY 2016/2017 claims cannot recur. Nor do their present a meaningful argument that it could. Because the ABCMR resolved these claims in the Plaintiffs' favor, the parties no longer have adverse legal interests with respect to these claims and thus there is no longer a "live issue" that the Court could adjudicate. The ABCMR's decisions also entitle the Plaintiffs to payment of any amounts owed for their per diem allowances in FYs 2016 and 2017, thus completely extinguishing the effects of the Defendant's prior decision not to pay these claims. Second, the Judge holds that the Plaintiffs have not shown that an exception to the general mootness rule would allow them to proceed on their FY 2016/2017 claims on behalf of the proposed class. Although the PDASA issued a determination that the Plaintiffs are entitled to per diem payments for FYs 2016 and 2017 only one week after they filed their Complaint, neither the letter itself nor the surrounding circumstances demonstrate that he did so in response to the litigation or in an attempt to moot the Plaintiffs' claims. Additionally, the PDASA's decision is not the action that purportedly mooted the Plaintiffs' FY 2016/2017 claims. Nor did the Defendant subsequently make an offer of settlement or judgment, as in the cases on which the Plaintiffs rely. B. The Remaining FY 2015 Claim Does Not Meet the Requirements for Class Certification. Unlike the FY 2016/2017 claims, it is undisputed that the Plaintiffs' FY 2015 claim presents a live controversy, the resolution of which will affect their legally cognizable interests. Accordingly, Judge Davis must decide whether the Plaintiffs have met the requirements of RCFC 23 to bring their FY 2015 claim on behalf of the proposed class. She finds that the Plaintiffs fail to meet their burden on the numerosity, commonality, typicality, and superiority factors. First, the Plaintiffs have not met their burden of showing that the proposed class is so numerous that joinder is impracticable. Second, neither the similarities of the Plaintiffs' discrete group, nor the example discussed in the 2015 Audit Report, is sufficient to carry their burden of showing that the Army had a policy or practice generally applicable to the Army-wide class they seek to represent for the FY 2015 claim. Third, the Plaintiffs have not provided the Court with a basis to conclude that their claims are characteristic of the proposed class. Fourth, the cost/benefit analysis of the superiority factor tips in favor of denying certification. Conclusion For these reasons, Judge Davis denies the Plaintiffs' Motion for Class Certification and Appointment of Class Counsel and Amended Motion for Class Certification and Appointment of Class Counsel. She denies as moot the Defendant's alternative request to stay administration of any class until a dispositive ruling in the case. The parties will submit a joint status report by no later than 14 days from the date of this Order proposing a schedule for further proceedings in the matter, including deadlines for the filing of the administrative record and cross-motions for judgment on the administrative record. A full-text copy of the Court's June 29, 2021 Opinion & Order is available at https://tinyurl.com/wfjmrjm3 from Leagle.com. UNITED STATES: Elbert Wins Summary Judgment in Suit Against USDA ---------------------------------------------------------------- In the case, RICH ELBERT, JEFF A. KOSEK, REICHMANN LAND & CATTLE LLP, LUDOWESE A.E. INC., and MICHAEL STAMER, individually and on behalf of a class of similarly situated persons, Plaintiffs v. UNITED STATES DEPARTMENT OF AGRICULTURE, RISK MANAGEMENT AGENCY, and FEDERAL CROP INSURANCE CORPORATION, Defendants, Civil No. 18-1574 (JRT/TNL) (D. Minn.), Judge John R. Tunheim of the U.S. District Court for the District of Minnesota enters an order: a. granting the Plaintiffs' Motion to Reconsider; b. granting the Plaintiffs' Motion for Summary Judgment; and c. denying the Defendants' Motion to Dismiss and Motion for Summary Judgment. The Plaintiffs, dark red kidney bean farmers from Minnesota, purchased revenue coverage, the Dry Bean Revenue Endorsement, to protect against a decline in bean prices as measured by the difference between the spring projected price and the fall harvest price. In 2015, such a decline occurred. However, the Plaintiffs were told that, because there was not enough published pricing data to establish a harvest price, it would be set equal to the projected price per the terms of the Endorsement, which converted their revenue coverage into mere yield protection. As a result, they received no recompense. The Plaintiffs brought claims under the Administrative Procedure Act ("APA") against the Defendants -- the United States Department of Agriculture ("USDA"), the Risk Management Agency ("RMA"), and the Federal Crop Insurance Corp. ("FCIC") -- arguing that it was arbitrary and capricious for the Defendants to allow the Endorsement to convert their revenue coverage into yield protection. The case was brought initially as a putative class action in the Eastern District of Michigan. The Michigan court dismissed the Minnesota Plaintiffs for improper venue and transferred them in the Court. The Plaintiffs then filed a Third Amended Complaint. On Sept. 6, 2019, the Plaintiffs moved for summary judgment, arguing that the Defendants acted arbitrarily and capriciously in setting the harvest price equal to the projected price in 2015. The Defendants moved for dismissal or, in the alternative, summary judgment. Several months after oral argument, the parties submitted supplemental briefing to address whether the post-approval rewriting of section 3(c)(2) violated the APA. On Aug. 21, 2020, the Court granted summary judgment to the Defendants, concluding that the Plaintiffs failed to demonstrate that Defendants' actions were arbitrary and capricious. Additionally, it rejected the Plaintiffs' assertions that changes made to section 3(c)(2) after Board approval mandated a new submission and that the RMA had acted outside the scope of its delegated authority. On Sept. 3, 2020, the Plaintiffs requested permission to file a motion to reconsider. The Court granted them permission to address whether changes made to section 3(c)(2) were "significant" as defined by regulations in effect in 2012; and, if significant, whether the Board's delegation of authority to the RMA obviated any need to resubmit them to the Board. The Plaintiffs have therefore filed a Motion to Reconsider. Previously, the Court concluded that changes made to section 3(c)(2) after the Board approved Watts's 508(h) submission in March 2012 were non-significant because they "involved concepts that had been previously sent for expert review," and thus did not require resubmission. Additionally, it noted that the Board had delegated authority to the RMA to make changes to the policy, and that the Plaintiffs had not demonstrated that this delegation was improper. Working with a rushed set of facts and the wrong regulatory language, the Court erred in both respects. Upon reconsideration, the Court finds that (1) the policy language approved by the Board was not the same as that finalized in the Endorsement offered for sale; (2) post-approval changes made to the language were "significant" under the regulations then in effect and therefore required resubmission to the Board, which did not occur; and (3) the RMA did not have the authority to independently approve and help finalize these changes in the Endorsement. As such, the Defendants violated the APA. Having concluded that the Board did not approve the language of section 3(c)(2) as finalized in the Endorsement sold to the Plaintiffs, and that post-approval changes made to the section's language violated the APA, the Court will grant the Plaintiffs' Motion to Reconsider. Accordingly, it will reverse its earlier decision, and will grant the Plaintiffs' Motion for Summary Judgment and deny the Defendants' Motion for Summary Judgment. However, given the circuitous path traveled in reaching this point, one involving newly discovered facts presented months after oral argument and a reconsideration of these facts, the parties' earlier arguments regarding an appropriate remedy may no longer be entirely on point. Additionally, the Endorsement purchased by Plaintiffs clearly stated that the harvest price will equal the projected price when the former could not be calculated, which further complicates determining an appropriate remedy. Thus, the Court will order additional briefing to address what remedy it should now extend. Based on the foregoing, and all the files, records, and proceedings therein, the Court reverses its earlier decision and grants the Plaintiffs' Motion to Reconsider. Therefore, the Plaintiffs' Motion for Summary Judgment is granted and the Defendants' Motion to Dismiss and Motion for Summary Judgment is denied. The parties are directed to file briefs addressing what remedy is appropriate. Simultaneous briefs are to be filed 45 days after entry of the Order. A full-text copy of the Court's June 29, 2021 Memorandum Opinion & Order is available at https://tinyurl.com/52j9jb3k from Leagle.com. John D. Tallman, JOHN D. TALLMAN PLLC, at 4020 East Beltline Avenue Northeast, Suite 101, in Grand Rapids, Michigan 49525, for the Plaintiffs. David W. Fuller, UNITED STATES ATTORNEY'S OFFICE, at 300 South Fourth Street, Suite 600, in Minneapolis, Minnesota 55415, for the Defendants. VIRGIN GALACTIC: Howard G. Smith Reminds of July 27 Deadline ------------------------------------------------------------ Law Offices of Howard G. Smith reminds investors of the upcoming July 27, 2021 deadline to file a lead plaintiff motion in the case filed on behalf of investors who purchased Virgin Galactic Holdings, Inc. ("Virgin Galactic" or the "Company") (NYSE: SPCE) securities between October 26, 2019 and April 30, 2021, inclusive (the "Class Period"). Investors suffering losses on their Virgin Galactic 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. On October 25, 2019, post-market, Virgin Galactic was formed by a business combination between Social Capital Hedosophia Holdings Corp. ("SCH"), a special purpose acquisition company ("SPAC"), and the Company's then-private predecessor, after which SCH changed its name to "Virgin Galactic Holdings, Inc." and its ticker symbol to "SPCE" (the "Business Combination"). On April 12, 2021, the U.S. Securities and Exchange Commission ("SEC") issued guidance advising that SPAC warrants, which are instruments that allow investors to buy additional shares at a fixed price, may need to be classified as liabilities rather than equity for many SPAC transactions, which had previously been accounted for as equity in these deals. On April 30, 2021, post-market, Virgin Galactic announced in a press release "that it has rescheduled the reporting of its financial results for the first quarter 2021 to following the close of the U.S. markets on Monday, May 10, 2021. Virgin Galactic will now host a conference call to discuss the results and provide a business update that day at 2:00 p.m., Pacific Time (5:00 p.m., Eastern Time). The Company is rescheduling its reporting due to the recent statement issued by the [SEC] on April 12, 2021 relating to the accounting treatment of warrants issued by special purpose acquisition companies (the 'SEC Statement')." The company further advised that "following its review of the SEC Statement and consulting with its advisors, the Company will restate its consolidated financial statements included in its Annual Report on Form 10-K for the fiscal year ended December 31, 2020. The restatement is due solely to the accounting treatment for the warrants of Social Capital Hedosophia Holdings Corp. that were outstanding at the time of the Company's business combination on October 25, 2019. The Company expects to file the restated financials prior to the new conference call date and estimates that it will recognize incremental non-operating, non-cash expense for each of the fiscal years ended December 31, 2020 and December 31, 2019." On this news, Virgin Galactic's stock price fell $2.01 per share, or 9.07%, to close at $20.14 per share on May 3, 2021. 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 that: (1) for accounting purposes, SCH's warrants were required to be treated as liabilities rather than equities; (2) Virgin Galactic had deficient disclosure controls and procedures and internal control over financial reporting; (3) as a result, the Company improperly accounted for SCH warrants that were outstanding at the time of the Business Combination; and (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased or otherwise acquired Virgin Galactic securities during the Class Period, you may move the Court no later than July 27, 2021to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or visit our website at www.howardsmithlaw.com. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts Law Offices of Howard G. Smith Howard G. Smith, Esquire 215-638-4847 888-638-4847 howardsmith@howardsmithlaw.com www.howardsmithlaw.com [GN] WALMART INC: October 14 Settlement Approval Hearing Set ------------------------------------------------------- If you were a Walmart employee who took Short-Term Military Leave (30 days or less) in any calendar year between October 10, 2004 and December 31, 2020, you could get money from this class action settlement. You may be a class member if you were a Walmart employee who took Short-Term Military Leave (30 days or less) in any calendar year between October 10, 2004 and December 31, 2020, you could get money from this class action settlement. A Walmart employee, Nickolas Tsui (the "Plaintiff") has sued Walmart in a class action on behalf of himself and other similarly situated employees alleging that Walmart violated the Uniformed Services Employment & Reemployment Rights Act ("USERRA") by failing to provide its employees fully paid leave when they took short-term military leave since October 2004. Walmart denies the claims and the Court has not decided that Walmart did anything wrong. The Parties have agreed to settle the claims alleged in the Lawsuit. The Notice describes the proposed class action Settlement, which, if approved by the Court, would mean that you may be eligible to receive compensation for Short-Term Military Leave that you took when you worked at Walmart between October 10, 2004 and December 31, 2020. If you received the Notice in the mail, Walmart has identified you as a potential Settlement Class Member. You must submit a Claim Form to be eligible to receive compensation. For instructions on how to submit a claim please read the Notice and/or click here for more information. If you received this Notice in the mail, you may return the accompanying Claim Form by mail, or you may submit a Claim Form online here using the unique code and password provided in the Notice mailed to you. The Court has preliminarily approved the Settlement. For the Settlement to become final and any payments or benefits to be distributed, the Court will need to issue final approval after a final approval hearing, which is currently scheduled for October 14, 2021. This date is subject to change without further notice. Please check this website for the latest updates on the case, or access the court docket at www.pacer.gov for the most up-to-date court information. PLEASE DO NOT CONTACT THE COURT OR WALMART DIRECTLY. They may not be able to answer your questions. If you have Questions CALL the Claims Administrator at (866) 742-4955 OR email info@rg2claims.com SUMMARY OF YOUR LEGAL RIGHTS & OPTIONS OPTION #1: DO NOTHING DO NOTHING. If you do nothing, you will NOT receive money from this settlement and you will release your claims against Walmart. OPTION #2: SUBMIT A CLAIM FORM SUBMIT A CLAIM FORM BY SEPTEMBER 16, 2021 TO RECEIVE A SETTLEMENT PAYMENT. You must submit a Claim Form to be eligible to receive any money under the Settlement. You can submit the Claim Form online at here or submit a hard copy via regular mail to Walmart USERRA Settlement, c/o RG/2 Claims Administration LLC, P.O. Box 59479, Philadelphia, PA 19102-9479. In the Claim Form, you must identify (i) the years you were employed by Walmart and (ii) the years that you took Short-Term Military Leave (30 days or less) from your employment at Walmart. If you did NOT receive the Notice and accompanying Claim Form in the mail, when you submit your claim you will also need to provide evidence of the years that you were in the military for every year that you claim you took Short-Term Military Leave from Walmart. You can provide that evidence by submitting a DD-214 or any other document from the military or federal government that shows the year(s) you served in the military. If you DID receive the Notice and accompanying Claim Form in the mail, you do not have to submit evidence of your military service unless the Claims Administrator asks you to do so. OPTION #3: OBJECT OR COMMENT OBJECT/COMMENT. You may write to the Court and explain why you do not like one or more aspects of the proposed Settlement. You must do so by no later than September 16, 2021. You may also appear at the final approval hearing. If you object/comment, you may still submit a Claim Form and be eligible to receive a payment. OPTION #4: EXCLUDE YOURSELF EXCLUDE YOURSELF. You may exclude yourself or opt out of the Settlement by writing to the Court by September 16, 2021. If you exclude yourself or opt out of the Settlement, you may not submit a Claim Form or receive a payment under the Settlement. Related Links www.WalmartUSERRASettlement.com/ [GN] ZUFFA LLC: Johnson Sues Over Anticompetitive Practices ------------------------------------------------------ Kajan Johnson and Clarence Dollaway, on behalf of themselves and all others similarly situated, Plaintiffs, v. Zuffa, LLC and Endeavor Group Holdings, Inc., Defendants, Case No. 21-cv-01189 (D. Nev., June 23, 2021), seeks treble damages and injunctive relief for violations of Section 2 of the Sherman Act. Zuffa operates under the trademark Ultimate Fighting Championship or UFC. Defendants are accused of maintaining and enhancing UFC's monopoly power in the market for promotion of live Professional Mixed Martial Arts (MMA) Fighter bouts and monopsony power in the market for professional MMA Fighter services. UFC has allegedly engaged in an illegal scheme to eliminate competition from would-be rival MMA Promoters by systematically preventing them from gaining access to resources critical to successful MMA Promotions, including by imposing extreme restrictions on UFC Fighters' ability to fight for would-be rivals during and after their tenure with the UFC. As a result of this scheme, UFC Fighters are paid a fraction of what they would earn in a competitive marketplace. Kajan Johnson and Clarence Dollaway are both Professional MMA Fighters who fought in multiple bouts promoted by the UFC from July 1, 2017 to the present. [BN] Plaintiff is represented by: Don Springmeyer, Esq. KEMP JONES, LLP 3800 Howard Hughes Parkway, 17th Floor Las Vegas, NV 89169 Tel: (702) 385-6000 Fax: (702) 385-6001 - and - Eric L. Cramer, Esq. Michael Dell'Angelo, Esq. Patrick Madden, Esq. Mark R. Suter, Esq. BERGER MONTAGUE PC 1818 Market St., Suite 3600 Philadelphia, PA 19103 Tel: (215) 875-3009, 875-3080, 875-3021 Fax: (702) 995-4658 Email: ecramer@bm.net mdellangelo@bm.net msuter@bm.net - and - Joseph R. Saveri, Esq. Joshua P. Davis, Esq. Kevin E. Rayhill, Esq. JOSEPH SAVERI LAW FIRM, INC. 601 California St., Suite 1000 San Francisco, CA 94108 Tel: (415) 500-6800 Fax: (415) 395-9940 Email: contact@saverilawfirm.com - and - Richard A. Koffman, Esq. Benjamin D. Brown, Esq. Daniel Silverman, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave., N.W., Suite 500, East Tower Washington, DC 20005 Tel: (202) 408-4600 Fax: (202) 408-4699 Email: rkoffman@cohenmilstein.com bbrown@cohenmilstein.com - and - Robert C. Maysey, Esq. Jerome K. Elwell, Esq. 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