/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/210802.mbx C L A S S A C T I O N R E P O R T E R Monday, August 2, 2021, Vol. 23, No. 147 Headlines ADECCO INC: N.D. California Issues Discovery Order in Risher Suit AIR LINE PILOTS: 7th Cir. Affirms Summary Judgment in Bishop Suit AKEBIA THERAPEUTICS: Faces Loper Suit Over Drop in Share Price ALLEGHENY COUNTY, PA: Settlement in Graham Suit Held in Abeyance AM COMMUNICATIONS: Grant Seeks Permit to Send Collective Notice AMAZON RETAIL: Cuozzo Suit Removed to C.D. California AMAZON RETAIL: Fails to Pay Overtime & Minimum Wage, Schneider Says AMAZON.COM: Judge Endorses to Partly Certify Class in Swearingen AMERICAN AIRLINES: 5th Cir. Affirms in Part Judgment in Ortiz Suit AMERICAN AIRLINES: Settlement on Passenger Capacity Suit Appealed AMERICAN GENERAL: Buck Appeals Class Cert. Bid Denial to 3rd Cir. AMERICAN NATIONAL: Wins Summary Judgment Bid vs MSP Recovery ANHEUSER-BUSCH: Response to Jackson Class Cert Bid Due August 2 APPLE INC: Settles FaceTime iOS 7 Class Action for $18 Million AREA STUDIO: Tatum-Rios Files ADA Suit in S.D. New York ARMOUR RESIDENTIAL: Bid to Nix Javelin Shareholder Suit Pending AUSTRALIA: Judge Orders Youth Detainees' Settlement Be Made Public AZUNA LLC: Nisbett Files ADA Suit in S.D. New York B.L. DOWNEY: N.D. Illinois Tosses Singleton Suit Over BIPA Breach BA SPORTS: Class Certification Deadlines in Silver Suit Vacated BDO CANADA: Averts Class Action Over Negligence in Audit Reports BECKER & POLIAKOFF: Faces Slowinski FDCPA Suit Over Debt Collection BERKELEY COUNTY: Mazzell Suit Seeks to Certify Deputy Coroner Class BGIS GLOBAL: Court Enters Case Management Order in Diaz Suit BIG PICTURE: 6 Classes and Sub-Classes Certified in Williams Suit BIODESIX INC: Deadline Extension in Case Management Order OK'd BIOGEN INC: Bid to Dismiss Aduhelm Securities Suit Pending BLACKBAUD INC: Court Enters Scheduling Order in Data Breach Suit BLUE CROSS: Class Cert. Bid Filing Extended to Sept. 28 BOSTON SCIENTIFIC: Shine Lawyers to Proceed Suit on Mesh Implants BOTTLING GROUP: Faces Pujanes Employment Suit in Calif. State Ct. BOZZUTO MANAGEMENT: Carmean Appeals BIPA Suit Dismissal CALI BAMBOO: Klaehn Appeals Product Liability Suit Dismissal CALIBER HOME: $5-Mil. Class Settlement in Phillips Wins Initial OK CANADA GOOSE: Wins Bid to Dismiss Cheng's First Amended Complaint CANTON, OH: Bid to Certify Inmates Class in Kelley v. Farmer Denied CARNIVAL CORPORATION: Class Cert. Related Bids Due Oct. 21 CARRIZO OIL: Seeks August 6 Response Extension to Class Cert Notice CENTERSTATE BANK: Bid to Modify Class Cert Related Deadlines OK'd CENTERSTATE BANK: Court Modifies Class Cert. Related Deadlines CENTRAL PAYMENT: Files Writ of Certiorari in Custom Hair Suit CENTURYLINK: Class Action Settlement Gets Final Nod CHEROKEE COUNTY: Burgess Conditional Class Certification Bid Nixed CHW GROUP: Scheduling Order & Discovery Plan Entered in Adam Suit CITIBANK NA: Head "Robocalls" Suit Seeks to Certify Class CLARK COUNTY, NV: Allison's Signed Complaint v. CCDC Due Sept. 14 CLARK COUNTY, NV: Compliant Suit in Allison v. CCDC Due Sept. 14 COLOPLAST A/S: South African Women Files Pelvic Mesh Class Action COMPUTER HAUS: Class Cert. Hearing Rescheduled to August 5 CONSUMER FINANCIAL: Seeks Extension of Rebuttal Reports Completion CORRECTIONS CORP: $56MM Class Settlement to be Heard on Nov. 8 COSTCO WHOLESALE: Karlinski Slams Choco Substitutes in Ice Cream CRUNCH FITNESS: Faces Pacheco TCPA Suit for Unsolicited Phone Calls CSI ELECTRICAL: Huerta Appeals Labor Suit Ruling to 9th Cir. CUSTOMER CONNEXX: Loses Bid to Decertify Class in Cadena Suit DAGON MOON: Court Tosses Eaves Bid for TRO DAVITA INC: Peace Officers' Counsel Wins $41MM in Fees & Expenses DCF WELLPATH: Boatman Class Suit Dismissed w/o Prejudice DISTRICT OF COLUMBIA: Plaintiffs Seek to Certify Class DLA PIPER: Gleinn Securities Suit Seeks to Certify Classes DNATA US: Moore Suit Remanded to San Francisco Superior Court EDEN ISLE: Skender Appeals Ruling in Labor Suit to 8th Circuit ENBRIDGE US: Onshore Appeals Bid to Intervene Denial in Robertson ENERGY SERVICES: Court Grants in Part Lindenbaum's Bid to Strike ENVISION HEALTHCARE: Court Narrows Claims in Linde Suit EQUIFAX INC: Consumer Class Suits in Georgia State Court Stayed EQUIFAX INC: Putative Class Suits in Canada Underway EQUIFAX INC: Settlement in Data Breach Suit Under Appeal ERIC BRADLEY: Hunt Petition for Writ of Habeas Corpus Junked FEDCAP REHABILITATION: King Seeks Conditional Collective Status FEDERATION INTERNATIONALE: Shields Class Cert Reply Due Sept. 1 FEDEX GROUND: Cuadra Suit Seeks to Certify Class Action FILTERS FAST: Loses Bids to Dismiss McCreary Suit Over Data Breach FIRST CREDIT: Simmons Must File Class Cert. Bid by November 1 FIRST TRANSIT: C.D. California Refuses to Remand Azimihashemi Suit FIRSTENERGY CORP: Discovery in Emmons Putative Class Suit Ongoing FIRSTENERGY CORP: DIscovery Ongoing in Ohio Consolidated Class Suit FORD MOTOR: Beaty Appeals Ruling in Defective Sunroof Case FOREST CITY: Rule 23 and FLSA Classes Certified in Rapp Suit GEM RECOVERY: Court Allows Rodriguez to File 3rd Amended Complaint GENERAL MOTORS: Casey Granted Leave to File 2nd Amended Complaint GENERAL MOTORS: Dismissal of Some Claims in Robinson Suit Endorsed GOLDEN STATE: Scott Suit Stayed Pending Resolution of Trevino Suit GOOGLE LLC: Court Enters Scheduling Order in Cabrera Class Suit GOVERNMENT EMPLOYEES INSURANCE: Lewis Suit Seeks to Certify Class GREYSTAR REAL: Wallace Suit Seeks to Certify Two Classes HARBOR FREIGHT: Faces Andrews Class Suit Over Defective Jackstands HEARTLAND EXPRESS: Bid for Conditional Certification Stricken HERC HOLDINGS: Court Dismisses Ramirez Class Suit HG OHIO: Nurses Seek Pay for Missed Breaks, Overtime HILTON MANAGEMENT: N.D. California Refuses to Remand Collins Suit HL WELDING: Yanez Class Action Gets Initial Approval HOME DEPOT: Class Cert. Bid Filing Continued to August 27 HOMETOWN AMERICA: CLCA Suit Remanded to Pasco County State Court HOMEWORKS ENERGY: Class Cert. Bid Must be Filed by Feb. 21, 2022 HOWARD L. NATIONS: Gaudet Appeals Denial of Class Cert. Bid HUDSON BAY: Judge Balks at Data Breach Class Settlement Deal HY-VEE INC: Minnesota Court Dismisses GreenState Data Breach Suit ICON CLINICAL: Nesbeth Must File Class Cert Bid by Sept. 27 IMPAC MORTGAGE: Appeals Court Upholds Summary Judgment in Timm Suit INSTANT CHECKMATE: Wins Bid to Compel Arbitration in Fischer Suit INTERNATIONAL PAPER: Court Grants Slocum's Bid to Strike Experts ITG INC: Mauthe Seeks Initial Approval of Settlement Deal J.B. HUNT: Final OK of Class Settlement Deal Sought in Wilson JAGUAR LAND: Block Seeks to Certify Class Action JET AUTOMOTIVE: Conditional Cert. of Rivera Class Action Nixed JOHN MULVANEY: Deadline for Class Cert Bid Filing Set for Nov. 8 JOHNSON & JOHNSON: McLaughlin Balks at Misbranded Sun Care Products KANSAS: Kanatzar, et al. File Writ of Habeas Corpus KEYSTONE RV: Wins Summary Judgment Bid vs Cole KNIGHT TRANSPORTATION: Opposition to Class Cert. Bid Due Sept. 7 KRAFT HEINZ CO: Tarantino Sues Over Toxic Substance in Products LAS VEGAS SANDS: Briefings on Bid to Nix Trust Suit Due August 5 LEVY PREMIUM: Peskett Seeks Approval of Class Certification Bid LIBERTY MUTUAL: Filing of Class Status Bid Due Dec. 8 LIFE LINE: Laird FLSA Suit Seeks to Certify Collective Action LILLY-JO LLC: Roberts Sues to Recover Withheld Tips LOEWS HOLLYWOOD: California Sup. Ct. Flips Judgment in Ferra Suit LOWE'S HOME: Wins Bid to Dismiss and Arbitrate Finch's Claims LYFT INC: Islam Appeals Ruling in Breach of Contract Suit LYONS DOUGHTY: Saroza Appeals Summary Judgment Ruling in FDCPA Suit MADERA COUNTY: Court Tosses Cuellar Bid for Injunctive Relief MAJOR LEAGUE: Faces Minor League Baseball Players' Class Action MDL 2179: Bid to Dismiss DeSilva's Claim in Oil Spill Suit Denied METLIFE GROUP: Plan Members' ERISA Suit Allege Fund Mismanagement MIDLAND, TX: Nichols Bid for Leave to File Amended Complaint OK'd MINNESOTA: Gamble Appeals Ruling in Civil Rights Suit to 8th Cir. MIYABI INC: Minnesota Court Approves Settlement; Seow Suit Tossed MOLSON COORS: Wagner Slams Seltzer Drink's Deceptive Labels MONTGOMERY, AL: Carter Appeals Class Cert. Bid Denial to 11th Cir. MT. HAWLEY INSURANCE: N.D. Illinois Dismisses Byberry Class Suit NAGOYA INC: Jiang Seeks Conditional Certification of Collective NATIONAL CREDIT: Portnoy Bid to Amend Complaint Nixed w/o Prejudice NATURAL THOUGHTS: Agrees Not to Seek Indemnification From Admiral NCAA: Weed Seeks Damages Over Football-linked Health Issues NETWORK TRANSPORT: Messer Labor Suit Seeks Unpaid Overtime Pay NEW PENN: Mattson Appeals Class Cert. Bid Denial to 9th Cir. NEW YORK CITY: Seeks Aug. 9 Extension to Oppose Class Cert. Bid NEW YORK: Knight Appeals Dismissal of Suit v. MTA-NY to 2nd Cir. NEWMONT CORP: Shareholder Class Suit in Ontario Underway NIELSEN HOLDINGS: Must Oppose Class Cert. Bid by October 12 NORTHSTAR LOCATION: Keevan FCRA Suit Removed to N.D. Illinois ODA INC: Discriminates Blind People, Fischler ADA Suit Says PARETEUM CORP: Loskot Putative Class Suit Ongoing PARETEUM CORP: Putative Securities Class Suit in New York Underway PENNSYLVANIA: Court Refuses to Dismiss Jennings v. Wolf and DHS PERRIGO COMPANY: Loses Bid for Summary Judgment in Securities Suit PHILIPS NORTH: Mitrovich Sues Over Defective Ventilators PORTLAND, OR: Filing of Class Certification Bid Extended Oct. 1 PROGRESSIVE DIRECT: Class of Insureds Certified in Stedman Suit QUEST DIAGNOSTICS: Bid to Dismiss AMCA Data Security Suit Pending QUEST DIAGNOSTICS: Bid to Nix Consolidated ERISA Suit Denied RADIOLOGY BOARD: Siva Appeals Anticompetitive Suit Dismissal RAYMOND JAMES: Nguyen Seeks to Certify Class of Account Holders REATA PHARMACEUTICALS: Francis Named Lead Plaintiff in Patel Suit RENTGROW INC: Court Tosses McIntyre Bid for Class Certification RETAIL EQUATION: GAP Appeals Ruling in Hayden FCRA Suit to 9th Cir. RETIREMENT PLANS: Class Settlement in Jander Gets Final Approval RICOH IMAGING: Mitchell Sues Over Camera Defect RITE AID: Seeks to Decertify Class in Nucci "Dress Code" Suit RITE AID: Wins Bid to Toss Ostermeier-McLucas' Amended Complaint ROBERTS WESLEYAN: Stevez Sues Over Blind-Inaccessible Website S-L DISTRIBUTION: Extension of Class Certification Deadline Sought SAFECO INSURANCE: Signor Bid to Alter Class Cert. Order Tossed SALLIE MAE: 2nd Cir. Affirms Denial of Bid to Dismiss Homaidan Suit SAMSUNG TELECOMMUNICATIONS: Class Action Settlement Gets Final OK SAN FRANCISCO, CA: Final OK of Class Settlement in Zayas Sought SCRIPPS HEALTH: Rosen Files Suit in S.D. California SHENANDOAH VALLEY: Files Writ of Certiorari in Doe 4 Class Suit SHRI YAMUNA: Giles Suit Seeks to Certify Class of Delivery Drivers SPA DINER: Moilan Hits Unpaid Overtime Wages, Missing Paystubs SPECIALIZED LOAN: Shea Seeks Extension to File Class Cert. Bid STATE FARM: Appeals Class Cert. Ruling in Jama Suit to 9th Cir. SYNCHRONY FINANCIAL: Stichting Depositary Suit Underway TEAMVIEWER US: Gershfeld Appeals Consumer Privacy Suit Dismissal TENNESSEE: Murphy Suit Asserts 4th and 5th Amendment Violations TEREX CORP: Kyes Suit Seeks to Recover Unpaid Overtime Wages TESLA INC: Malek Balks at Solar Roof System Price Hike THINX INC: Deadline for Class Cert. Filing Due April 22, 2022 TRADER JOE'S: Ninth Circuit Affirms Dismissal of Moore Class Suit TWIN CITY: Wins Bid for Judgment on Pleadings in Sweetberry Suit TWO RIVERS: Paulson Seeks Initial OK of Class Settlement UNION PACIFIC: DeFries' Failure to Accommodate Claim Dismissed UNISEA INC: Appeals Arbitration Bid Denial in Ohring FLSA Suit UNITED AMERICAN: Court Partly Approves Settlement in Jones Suit UNITED SERVICES: Extension of Class Cert. Bid Filing Sought UNITED STATES: Court Junks Anunciato Class Action UNITED STATES: Schulz Appeals Denial of Summary Judgment Bid UNIVERSITY OF NORTH CAROLINA: Extension to File Class Cert Sought UNIVERSITY OF NOTRE DAME: Suit Seeks COVID-19 Tuition Fee Refunds VALENTINE & KEBARTAS: Cardenas Class Cert. Bid Tossed as Moot VELOCITY INVESTMENTS: Plaintiffs Lose Bids for Class Certification VIKING SERVICES: Order Issued in Denicolo Over Certified Classes VOLVO CARS: Neale Loses Bid to Certify Class in Sunroof Defect Suit WAKE COUNTY, NC: Gorrell FLSA Suit Seeks Conditional Class Cert. WALMART INC: Yonan Files Mislabeling Suit re Coffee Creamer Product WARTBURG COLLEGE: Court Enters Scheduling Order in Warner Suit WEINGARTEN REALTY: Morgan Files Suit Over Kimco Merger Deal WELLS FARGO: Class Settlement in Path Suit Gets Final Approval WESTWARD 360: Gross FCRA Suit Removed to N.D. Illinois WHIRLPOOL: Top-Load Washing Machine Model Suits Ongoing WILLIAM BARR: Riley Bid for Class Certification Tossed WISCONSIN: Howard v. Hartman May Proceed W/o Prepaying Filing fee WYNDHAM VACATION: Judge Tosses Timeshare Buyers' Class Action XCEL ENERGY: Plaintiff's Legal Team to Get Half of Settlement ZIMMER BIOMET: Class Settlement in Karl Suit Wins Initial Approval ********* ADECCO INC: N.D. California Issues Discovery Order in Risher Suit ----------------------------------------------------------------- Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, issued a discovery order in the lawsuit captioned CLARENCE RISHER, individually and on behalf of all others similarly situated, Plaintiff v. ADECCO INC., et al., Defendants, Case No. 19-cv-05602-RS (LB) (N.D. Cal.). The lawsuit is a putative class action. The Named Plaintiff, Clarence Risher, alleges that the Defendants violated the Telephone Consumer Protection Act (TCPA) by sending text messages to his cell phone soliciting him for employment with Adecco. The parties filed a discovery letter disputing the following: (1) the relevance of the plaintiff's discovery requests to the motion for class certification and whether the scope of the plaintiff's discovery is outside the complaint; (2) the status of the defendants' objections to the discovery production on the basis of undue burden and whether the defendant's proposed data sample is sufficient; (3) whether the defendants have waived their remaining objections; and (4) the format of certain ESI production. The Court held a hearing on July 15, 2021, and now orders the following. Regarding issues one through three, the Court denies the Plaintiff's requests. Essentially, the Defendants argue that the Plaintiff is seeking discovery outside the scope of his complaint. The Plaintiff's Third Amended Complaint alleges that the Defendants violated the TCPA by sending text messages using an Automatic Telephone Dialing System (ATDS) to persons who last interacted with Adecco before Aug. 10, 2017, and by sending text messages to a subclass of such persons whose numbers appear on the Do Not Call Registry. The Plaintiff seeks discovery on an undefined number of text recipients and text messages. For the reasons stated on the record, the Court adopts the Defendants' proposal for a responsive production, summarized as follows: * The Defendants will produce an initial data sample specific to the text message campaign through which the Plaintiff received a text message; * The Plaintiff will have 14 days to review and provide feedback on the form of the Defendants' production; and * The parties must then confer on the scope of a larger data production as applicable, in the format agreed to by the parties, seeking input from the undersigned as needed to resolve disagreements regarding the scope of the data production and any objections from the Defendants based on burden. The contemplated production will be in Excel and will be produced in seven to ten days. Given the agreement to produce the sample in native format (with a larger production to follow, presumably also in native format), the Court defers consideration of any challenges to the form of production until there is a concrete dispute. The Plaintiff filed a motion for leave to file a Fourth Amended Complaint early this morning, Judge Beeler states. If that complaint changes the scope of discovery, the parties can revisit the dispute. A full-text copy of the Court's Discovery Order dated July 15, 2021, is available at https://tinyurl.com/yvxddf2t from Leagle.com. AIR LINE PILOTS: 7th Cir. Affirms Summary Judgment in Bishop Suit ----------------------------------------------------------------- The United States Court of Appeals for the Seventh Circuit affirms the issuance of summary judgment in favor of the Defendant in the lawsuit titled DAVID BISHOP and ERIC LISH, Plaintiffs-Appellants v. AIR LINE PILOTS ASSOCIATION INTERNATIONAL, Defendant-Appellee, Case No. 21-1034 (7th Cir.). The Plaintiffs, pilot instructors for United Airlines, brought this class action against the Air Line Pilots Association, International ("ALPA"), their recognized agent for the purpose of collective bargaining. In their complaint, they alleged that ALPA had violated its duty of fair representation under the Railway Labor Act, 45 U.S.C. Section 151, et seq., by adopting a retroactive pay provision that discriminated against pilot instructors. The district court initially dismissed the complaint; however, on appeal, the Seventh Circuit reversed the district court's judgment and allowed the action to go forward, see Bishop v. Air Line Pilots Ass'n, Int'l, 900 F.3d 388 (7th Cir. 2018). Following discovery, ALPA moved for summary judgment. It maintained that the Plaintiffs had not come forward with evidence that its sole motive in adopting the retroactive pay provision was to discriminate against the pilot instructors. The district court agreed and granted ALPA's motion. The Court of Appeals now affirms. Circuit Judge Kenneth Francis Ripple, writing for the Panel, notes that to establish a violation of the duty of fair representation under the circumstances presented here, the Plaintiffs were required to come forward with evidence from which a jury could conclude that ALPA's sole motive in adopting the retroactive pay provision was an illicit one. He opines that the Plaintiffs did not meet that burden; consequently, the district court correctly entered summary judgment on behalf of ALPA. Background The pilot instructors filed this action alleging that ALPA breached its duty of fair representation under the Railway Labor Act because it adopted the retroactive pay formula for the purpose of benefitting line pilots at the expense of pilot instructors. Specifically, the pilot instructors alleged that ALPA breached that duty by discriminating against, expressing hostility and acting with animosity towards the pilot instructors and arbitrarily choosing to disregard their interests in favor of the interests of the stronger, more politically favored majority in its misallocation of the retro pay. ALPA moved to dismiss the complaint, and the district court granted ALPA's motion. The Court of Appeals reversed that judgment on appeal. On remand, the district court granted the Plaintiffs' motion for class certification, the parties conducted discovery, and ALPA moved for summary judgment. In its motion, ALPA argued that, to establish a violation of the duty of fair representation, it was not enough for the pilot instructors to show that the lump sum benefitted some pilots (or subgroup(s) of pilots) more than others. Instead, the pilot instructors had to show that ALPA had made the decision "solely for the benefit of a stronger, more politically favored group over a minority group." ALPA maintained that, in addition to not being able to establish an improper motive, the pilot instructors also could not establish causation. The Plaintiffs opposed the motion. They claimed that Subcommittee 2's retroactive pay formula was not even-handed because "the 'rule' that was supposedly applied 'uniformly' was based solely on the hourly rates under the Delta contract, the only component of a line pilot's pay," but pilot instructors were paid a salary. Moreover, the pilot instructors continued, the formula resulted in a "gross disparity--38% v. 15%--in the distribution of retro pay." Finally, the pilot instructors claimed that ALPA's argument regarding causation was "nonsensical." The district court granted ALPA's motion. First, it explained that ALPA's assessment of the disparity in retroactive pay was not supported by the record. Turning to ALPA's intent, the court noted that at least some of the evidence on which the plaintiffs relied was inadmissible. As for the formula the subcommittee adopted, the evidence established that Subcommittee 2 was looking for something "simple," without any "funky rules," that would be easy to explain and defend. Given that the Plaintiffs had to show that the retroactive pay provision had been adopted "solely for the benefit of a stronger, more politically favored group over a minority group," ALPA was entitled to summary judgment. Finally, the district court observed that granting summary judgment was not inconsistent with the Court of Appeals' prior decision. The district court noted that, in holding that the pilot instructors' complaint should not have been dismissed, the Court of Appeals had highlighted the complaint's allegations that pilot instructors make up a minority of ALPA's membership and that ALPA acted with the intent to appease its majority membership, the line pilots, after a lengthy and contentious CBA negotiation. Drawing reasonable inferences in the Plaintiffs' favor, the complaint alleged that this was the sole reason ALPA adopted the retroactive pay formula. The summary judgment record, however, shows that ALPA had--either instead of or in addition to a discriminatory motive--a neutral, permissible motive for adopting the formula, Judge Ripple finds. He points out that that defeats the Plaintiffs' duty of fair representation claim under the governing standard. The pilot instructors timely appealed. Discussion Before the Court of Appeals, the Plaintiffs maintain that there is a disputed question of fact as to whether ALPA acted arbitrarily, discriminatorily, or in bad faith when it excluded from the calculation of retro pay the most significant component of pilot instructors' pay raises under the new collective bargaining agreement. According to the Plaintiffs, the critical evidence in support of this claim is: (1) the large disparity between the percentage of retroactive pay received by line pilots compared to pilot instructors; (2) members of the subcommittee tasked with allocating retro pay harbored animosity toward pilot instructors and, therefore thought they should get less in retro pay; and (3) the chairman of the same subcommittee lied and claimed that the committee adopted a formula proposed and advocated for by the pilot instructor representative on the subcommittee. The Court of Appeals concludes that this evidence, taken individually and collectively, does not raise a genuine issue of material fact as to whether ALPA acted arbitrarily, discriminatorily, or in bad faith. In sum, Judge Ripple states, the fact that ALPA's retroactive pay formula may have impacted pilot instructors more negatively than line pilots--and that Subcommittee 2 knew of that negative impact when it adopted the retroactive pay provision--does not raise a genuine issue of material fact. He adds, among other things, that the summary judgment record does not raise a genuine issue of material fact that requires the Court of Appeals to send the Plaintiffs' duty of fair representation claim to a jury. Conclusion For the reasons set forth in this Opinion, the Court of Appeals affirms the judgment of the district court. A full-text copy of the Court's Opinion dated July 15, 2021, is available at https://tinyurl.com/ddx5nsuj from Leagle.com. AKEBIA THERAPEUTICS: Faces Loper Suit Over Drop in Share Price -------------------------------------------------------------- CURTIS LOPER, Individually and on Behalf of All Others Similarly Situated v. AKEBIA THERAPEUTICS, INC., MUNEER A. SATTER, JOHN P. BUTLER, JASON A. AMELLO, SCOTT A. CANUTE, MICHAEL D. CLAYMAN, MAXINE GOWEN, DUANE NASH, RONALD C. RENAUD, JR., CYNTHIA SMITH, MICHAEL S. WYZGA, JODIE MORRISON, SCOTT A. HOLMES, MICHAEL ROGERS, KEVIN J. CAMERON, STEVEN C. GILMAN, DANIEL P. REGAN, MARK J. ENYEDY, and MICHAEL T. HEFFERNAN, Case No. 654373/2021 (N.Y. Sup., New York Cty., July 15, 2021) is a securities class action on behalf of former Keryx shareholders who acquired Akebia common stock pursuant to the S-4 registration statement and related 424B3 prospectus issued in connection with a December 2018 transaction by which Keryx became a wholly owned subsidiary of Akebia (the "Merger"). This action asserts non-fraud, strict liability claims under sections 11, 12(a)(2), and 15 of the Securities Act of 1933 against Akebia and certain Akebia and Keryx officers and directors. In connection with the Merger, each outstanding share of Keryx common stock and each outstanding Keryx equity award were converted into Akebia common stock and substantially similar Akebia awards, respectively, at an exchange ratio of 0.37433 for a total fair value consideration of $527.8 million. According to Akebia's 2018 Form 10-K, Akebia issued 57,773,090 Akebia shares as a result of the Merger with the fair value of each of those shares calculated using $8.94 per share, the closing price of Akebia common stock on December 12, 2018. The issuance, solicitation, and selling of these new Akebia common shares were all pursuant to the Registration Statement. According to the complaint, the Registration Statement contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading. Allegedly, the Registration Statement hyped the safety, approvability, and commercial viability of Akebia's vadadustat in patients suffering with anemia from CKD, and, as a result, overstated the value of the Merger, including the potential for the company's combined two leading products to establish a new standard of care in a $4 billion global market. The Defendants completed the Merger with the foregoing misrepresentations and omissions in the Registration Statement. And with these material misrepresentations and omissions, the Merger was extremely lucrative for Defendants. But when the truth of Defendants' alleged misrepresentations and omissions became known, the price of Akebia shares suffered sharp declines. By the commencement of this action, Akebia shares had traded as low as $2.09 per share -- all told, an over $395.7 million decline from the Merger reference price. The Plaintiff acquired Akebia common stock from Akebia in exchange for Keryx shares pursuant to the Merger and was damaged thereby. Akebia is a Cambridge, Massachusetts-biopharmaceutical company focused on developing and commercializing therapeutics for patients based on hypoxia-inducible factor ("HIF") biology. HIF is the primary regulator of the production of red blood cells in the body, as well as other important metabolic functions. At the time of the Merger, Akebia's lead product candidate, vadadustat, was an oral therapy in Phase 3 development and expected to become a new standard of care in the treatment of anemia due to chronic kidney disease ("CKD"). Keryx was a commercial stage biopharmaceutical company focused on bringing medicines to people suffering from kidney disease. Keryx's market product, Auryxia tablets, was approved by the U.S. Food and Drug Administration ("FDA") for the control of serum phosphorous levels in patients with CKD, on dialysis and for the treatment of iron deficiency anemia in adults with CKD, not on dialysis. Keryx's common shares traded on the NASDAQ under the ticker symbol "KERX".[BN] The Plaintiff is represented by: Thomas L. Laughlin, IV, Esq. Rhiana L. Swartz, Esq. Jonathan M. Zimmerman, Esq. SCOTT SCOTT The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: tlaughlin@scott-scott.com rswartz@scott-scott.com jzimmerman@scott-scott.com - and - Brian J. Schall, Esq. THE SCHALL LAW FIRM 1880 Century Park E, Suite 404 Los Angeles, CA 90067-1604 Telephone: (310) 301-3335 Facsimile: (310) 388-0192 E-mail: brian@schallfirm.com ALLEGHENY COUNTY, PA: Settlement in Graham Suit Held in Abeyance ---------------------------------------------------------------- The U.S. District Court for the Western District Court of Pennsylvania held in abeyance the parties' joint motion for approval of their settlement agreement in the lawsuit styled MICHAEL GRAHAM, et al., Plaintiffs v. ALLEGHENY COUNTY, et al., Defendant, Case No. 20-496 (W.D. Pa.). District Judge Cathy Bissoon explains that the Court has no issue with, and is inclined to approve, the settlement agreement. To be clear, however, the Court cannot approve it as a class action settlement. In federal court, the settlement of a class action occurs in two stages, Judge Bissoon notes, citing Rescigno v. Statoil USA Onshore Props. Inc., 2020 WL 3830931, *6 n.6 (M.D. Pa. Jul. 8, 2020). First, the parties submit a proposed settlement to the Court, which makes a preliminary fairness evaluation. If the Court deems the proposed settlement preliminarily acceptable, it will direct that notice be provided to all class members who would be bound by the proposed settlement, in order to afford them an opportunity to be heard on, object to and opt out of the settlement. In the second stage, after class members have been notified, the Court holds a formal "fairness hearing" wherein class members may object to the settlement. Superimposed on this process is the requirement that notice of the settlement be provided to affected state and federal officials, under the Class Action Fairness Act, 28 U.S.C. Section 1715. There presently is no reason to believe that the parties expect, or intend, to engage the procedural safeguards required for the Court to approve a class action settlement, Judge Bissoon finds. The Court offers no opinion, moreover, regarding the distinctions in preclusive-effect, if any, between approving the settlement as proposed--and approving a class action settlement--in the specific context and under the circumstances presented. Consistent with this, any party wishing to be heard regarding these matters may file supplemental briefing. If no party objects to the settlement being approved, as described in this Order, the parties promptly may file a joint notice with the Court so indicating. If no supplemental submissions timely are filed, the Court promptly will approve the proposed settlement, consistent with the terms of this Order. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/56n23jss from Leagle.com. AM COMMUNICATIONS: Grant Seeks Permit to Send Collective Notice --------------------------------------------------------------- In the class action lawsuit captioned as ORPHEUS GRANT, individually and on behalf of all other persons similarly situated who were employed by AM COMMUNICATIONS LTD, AM COMMUNCATIONS LLC.; AM COMMUNICATIONS OF OHIO LLC; and/or any other entities affiliated with or controlled by AM COMMUNICATIONS, LTD.; AM COMMUNCATIONS LLC; and AM COMMUNICATIUONS OF OHIO LLC, v. AM COMMUNICATIONS, LTD.; AM COMMUNCATIONS LLC; AM COMMUNICATIONS OF OHIO LLC; and any related entities, Case No. 3:20-cv-01526-DNH-ML (N.D.N.Y.), the Plaintiffs ask the Court to enter an order to permit Court supervised notification to putative collective members pursuant to the Fair Labor Standards Act (FLSA),29 U.S.C. section 216(b), and for equitable tolling for members of the putative collective action, together with such other and further relief as the Court may deem just and proper. AM Communications operates as a telecommunication contracting company. A copy of the Plaintiffs' motion dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3fh6PLb at no extra charge.[CC] The Attorneys for the Plaintiffs and the Putative Collective and Class, are: Frank S. Gattuso, Esq. GATTUSO & CIOTOLI, PLLC The White House 7030 E. Genesee Street Fayetteville, NY 13066 Telephone: (315) 314-8000 E-mail: fgattuso@gclawoffice.com - and - James Emmet Murphy, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7 th Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: jmurphy@vandallp.com AMAZON RETAIL: Cuozzo Suit Removed to C.D. California ----------------------------------------------------- The case styled as Matthew Cuozzo, as an individual and on behalf of all others similarly situated v. Amazon Retail LLC, a Delaware limited liability company; Does 1 through 50, inclusive, Case No. 30-02021-01206226-CU- was removed from the Orange County Superior Court to the U.S. District Court for the Central District of California on July 28, 2021. The District Court Clerk assigned Case No. 8:21-cv-01271 to the proceeding. The nature of suit is stated as Other Labor. Amazon -- https://www.amazon.com/ -- is an American multinational technology company which focuses on e-commerce, cloud computing, digital streaming, and artificial intelligence.[BN] The Plaintiff appears pro se. AMAZON RETAIL: Fails to Pay Overtime & Minimum Wage, Schneider Says ------------------------------------------------------------------- HOLLY SCHNEIDER, on behalf of herself and other aggrieved employees, v. AMAZON RETAIL LLC; and DOES 1 to 100, inclusive, Case No. 21STCV26226 (Cal. Super., Los Angeles Cty., July 15, 2021) seeks civil penalties associated with the Defendants' violation of the Labor Code based on Defendants' failure to pay wages for all hours worked at minimum wage and all overtime hours worked at the overtime rate of pay. The Plaintiff also alleges that the Defendant failed to authorize or permit all legally required and/or legally compliant meal periods or pay meal period premium wages, failed to authorize or permit all legally required and/or legally compliant rest periods or pay rest period premium wages, and failed to indemnify for employment-related expenditures. This is a Private Attorneys' General Act of 2004, Lab. Code section 2698, et seq. (PAGA) representative action brought by the Plaintiff on behalf of the State of California, herself and other current and former aggrieved employees of Defendants who worked as hourly non-exempt employees, in California during the relevant time period. Amazon.com LLC was founded in 2001. The Company's line of business includes the retail sale of products by television, catalog, and mail-order.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Vincent C. Granberry, Esq. Melissa A. Huether, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 E-mail: ilavi@lelawfirm.com vgranberry@lelawfirm.com mhuether@lelawfirm.com AMAZON.COM: Judge Endorses to Partly Certify Class in Swearingen ---------------------------------------------------------------- In the class action lawsuit captioned as KRISTIN SWEARINGEN v. AMAZON.COM SERVICES, INC. and AMAZON.COM INC., Delaware corporations, and, AMAZON.COM.DEDC, LLC, a Delaware limited liability company, Case No. 3:19-cv-01156-JR (D. Or.), the Hon. Magistrate Judge Jolie A. Russo entered an order recommending that the Plaintiff's motion for class certification should be granted in part. The Court should certify the rounding class as consisting of: "all current and former Amazon employees who performed work in Oregon "fulfillment center" facilities (i.e., excluding data center employees), in any workweek the regular payday for which was on or after December 20, 2012 and on or before April 15, 2019, during which they lost time due to Amazon's rounding policy, who do not file a timely request to opt-out of the Class. The Court should decline to certify plaintiff's proposed unpaid breaks class. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. A copy of the Court's findings and recommendation dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3ydAUmj at no extra charge.[CC] AMERICAN AIRLINES: 5th Cir. Affirms in Part Judgment in Ortiz Suit ------------------------------------------------------------------ In lawsuit captioned Salvadora Ortiz; Thomas Scott, Plaintiffs-Appellants v. American Airlines, Incorporated; American Airlines Pension Asset Administration Committee; American Airlines Federal Credit Union, Defendants-Appellees, Case No. 20-10817 (5th Cir.), the United States Court of Appeals for the Fifth Circuit affirms in part, reverses in part, and vacates in part the district court's ruling awarding the Defendants summary judgment. On behalf of themselves and others similarly situated, Plaintiffs-Appellants Salvadora Ortiz and Thomas Scott have brought suit against Defendants-Appellees American Airlines, Inc. ("AA"); American Airlines Pension Asset Administration Committee (the "PAAC"); and American Airlines Federal Credit Union ("FCU"). The Plaintiffs alleged that the Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001, et seq. Nearly three years after declining preliminary approval of a settlement agreement, the district court awarded the Defendants summary judgment. The Plaintiffs appealed. Facts & Procedural History AA offered a "$uper $aver" 401(k) plan, which allowed its employees to save for retirement by investing a portion of their pre-tax income in the Plan. The PAAC was a fiduciary body charged with selecting investment options for the Plan. Once the PAAC selected options, employees were responsible for deciding whether to invest in the Plan, how much, and in which option. The Plaintiffs, who are former employees of AA, invested in the Plan. The Plan is governed by ERISA since it is sponsored by an employer. Federal regulations urge fiduciaries of ERISA-governed plans to offer at least one "safe" investment option, meaning one that is income producing, low risk, and liquid. The instant dispute revolves around the Plan's safe offerings, which are also known as "capital preservation options." These options are designed to prioritize protection of the principal investment while still providing positive returns. At various points between 2010 and 2016, AA offered two different capital preservation options: a demand-deposit fund and a stable value fund. A demand deposit fund is the functional equivalent of an interest-bearing checking account. Money invested in such a fund is payable on demand without transfer restrictions. FCU, which is independent from the AA and the PAAC, held the demand deposit fund offered under the Plan ("FCU Option"). Each month, FCU set the rate of return offered on the FCU Option. FCU notified the Plan in advance of rate changes. Between 2010 and 2017, the FCU Option's rate of return averaged just under 57 cents per every $100 invested. Because FCU held FCU Option investments in cash reserves and short-term investments, it was able, upon demand, to fund the withdrawal of the entirety of the FCU Option's assets. A stable value fund exposes investors to greater risk than demand deposit accounts and provides only a contractually limited guarantee that participants may withdraw the book value of their accounts. And if the insurer of the fund defaults, the guarantee may be eliminated altogether. Additionally, a stable value fund contains liquidity restrictions. The Plan added a stable value offering in late 2015. Plaintiffs Ortiz and Scott both invested in the FCU Option. Ortiz never moved her investments from the FCU Option once the Plan began offering a stable value fund in 2015. Scott likewise never moved his investments from the FCU Option into the stable value fund, though he did transfer those investments into a lower-yielding money market option. In February 2016, the Plaintiffs filed suit on behalf of a putative class of Plan participants, who invested at least some of their money in the FCU Option. The complaint included three claims. The first asserted that AA and the PAAC breached their fiduciary duties of loyalty and prudence under 29 U.S.C. Section 1104(a)(1)(A)-(B)3 by failing to remove the FCU Option from the Plan ("Count I"). The second contended that FCU breached its fiduciary duty of loyalty under 29 U.S.C. Section 1106(b)(1)5 by dealing with plan assets held by the FCU Option for its own benefit ("Count II"). The complaint also averred AA and the PAAC are liable as co-fiduciaries for FCU's breach. The final claim averred that AA and the PAAC engaged in a "prohibited transaction" under 29 U.S.C. Section 1106(a)(1) by offering the FCU Option ("Count III"). Five months after bringing the lawsuit, the Plaintiffs and the Defendants agreed to settle the case pursuant to Federal Rule of Civil Procedure 23. Although the settlement would have required the Defendants to pay $8.8 million to the proposed class, the Plaintiffs claimed to have lost between $55 and $88 million. The district court, therefore, sought justification from the Plaintiffs for the low payout amount, especially when as much as one-third of the settlement funds were to be paid out in attorneys' fees. After providing the Plaintiffs with two extensions to supplement the record, the district court concluded that the evidence presented did not justify the settlement figure and so denied preliminary approval of the settlement in October 2017. The parties proceeded through discovery. In July 2020, the district court declined to certify this case as a class action under Rule 23. The district court, however, permitted the Plaintiffs to proceed as representatives of the Plan pursuant to 29 U.S.C. Section 1132. AA and the PAAC then filed one summary judgment motion, while FCU filed another. In August 2020, the district court granted each of the Defendant's motions. The Plaintiffs timely appealed the district court's decision to award summary judgment and its denial of settlement approval. Discussion Before launching into the substantive analysis of the district court's summary judgment ruling, the Court of Appeals takes a moment to clarify its scope of review. The Court of Appeals concludes that it is limited to part of Count I and all of Count II. Regarding Count I, although the Plaintiffs make a fulsome argument that AA and the PAAC breached their duty of prudence, they simply allude to an argument in their brief that these Defendants additionally breached their duty of loyalty, Circuit Judge Carl E. Stewart, writing for the Panel, explains, citing Curry v. Strain, 262 F. App'x 650, 652 (5th Cir. 2008) (per curiam). Accordingly, to the extent the Plaintiffs seek review of that latter claim, they have forfeited the right to have the court consider it. There are no disputes as to whether the Court of Appeals should review Count II and so it proceeded to do so. Finally, with respect to Count III, the Plaintiffs argue for the first time on appeal that FCU, rather than AA and the PAAC, is liable for engaging in a prohibited transaction under Section 1106(a)(1). In addition to the fact that the complaint asserted Count III against AA and the PAAC, not FCU, the Plaintiffs' response to FCU's summary judgment motion does not in fact suggest that they intended to sue FCU under Section 1106(a)(1) (Plaintiffs' protestations notwithstanding). By not raising before the district court their argument that FCU is liable under Section 1106(a)(1), that argument is forfeited, Judge Stewart holds. Further, because the Plaintiffs do not dispute the district court's conclusion that they failed to respond to AA and PAAC's summary judgment motion arguing that the Plaintiffs could not prevail on their Count III claim, they have abandoned this claim entirely. A. Standing The Defendants argue that the Plaintiffs do not have constitutional standing for their claims. The Court of Appeals agrees. The district court determined that the Plaintiffs lacked standing as to their live claim against AA and the PAAC. While it also concludes that the Plaintiffs do not have standing regarding Count I, the Court of Appeals does so for a different reason. The Plaintiffs' purported injury is income that they would have received had AA and the PAAC not offered the FCU Option. In other words, Judge Stewart states, the question is whether the Plaintiffs have demonstrated that it is substantially probable that the challenged acts of the Defendant, not of some third party (including themselves) caused the injury. If anything, Judge Stewart notes, the record reveals that the Plaintiffs would not have invested in a stable value fund in a counterfactual world since they did not place their money in one when given the opportunity to do so. As AA and the PAAC observe, the Plaintiffs could have submitted a declaration, affidavit, or testimony to the effect that they would have invested in a stable value fund absent the FCU Option. But they offered no such evidence. That is the end of the matter. In sum, the district court correctly concluded that the Plaintiffs lacked standing as to Count I. In contrast to the Plaintiffs' claims against AA and the PAAC, the district court determined that the Plaintiffs had standing to sue FCU. Once again, the Plaintiffs have shown that they were injured and that the injury is redressable. But, once more, the Plaintiffs have failed to satisfy the element of causation, Judge Stewart notes. Put another way, the Plaintiffs have not supplied any evidence demonstrating that investors in FCU funds other than the FCU Option received higher interest rates generated by investments of Plan assets. Instead of offering new arguments in support of the district court's conclusion that they had standing as to their claim against FCU, the Plaintiffs simply rely on their prior assertions. But, for the reasons discussed, those contentions lack merit, Judge Stewart holds. Furthermore, the Plaintiffs raise an entirely separate theory of liability as to FCU. Hence, even if their standing arguments were meritorious as to the Plaintiffs' claim against AA and the PAAC, they would be inapplicable as to their claim against FCU. In short, Judge Stewart finds, the district court erred in concluding that the Plaintiffs had standing with respect to their claim against FCU. Hence, the Court of Appeals affirms the district court's dismissal of both Count I and Count II. Given it lacks jurisdiction over those claims, the Court of Appeals does not reach the parties' arguments as to the merits. B. Settlement The Plaintiffs additionally argue that the district court abused its discretion in denying preliminary approval of the settlement. The Court of Appeals disagrees and affirms the district court on this issue. Assuming the Plaintiffs have not waived their right to appeal the settlement, the Court of Appeals holds that the Plaintiffs cannot now challenge the district court's assessment of the settlement itself. The Plaintiffs' briefing did not argue that the district court somehow misapplied the governing legal standard. Instead, the Plaintiffs suggest that the lower court abused its discretion by ultimately granting summary judgment in favor of the Defendants after initially concluding during the settlement phase that the Plaintiffs' claims would likely succeed. Consequently, the Plaintiffs have forfeited any arguments as to the propriety of the settlement, Judge Stewart holds, citing United Paperworkers Int'l Union AFL-CIO, CLC v. Champion Int'l Corp., 908 F.2d 1252, 1255 (5th Cir. 1990). However, even assuming the Plaintiffs had not forfeited the argument, Judge Stewart finds the argument is meritless. Before approving a settlement, a court must be assured that the settlement secures an adequate advantage for the class in return for the surrender of litigation rights against the defendants. Yet, the Plaintiffs did not provide the district court with the needed assurance, Judge Stewart notes. Before entering the settlement, the parties engaged the services of a mediator, the Honorable Faith S. Hochberg (Retired). While Judge Hochberg proposed that the parties agree to a settlement of $8.8 million in cash, she conditioned her recommendation on confirmatory discovery necessary to obtain court approval. The district court then provided the Plaintiffs with multiple opportunities to gather and provide the court with information required to assess the adequacy of the settlement. In response, the Plaintiffs provided two declarations from their counsel, John J. Nestico. Both declarations outlined the efforts counsel made to bolster the Plaintiffs' claims. But neither of the declarations cited to evidence demonstrating that $8.8 million was sufficient. Determining that it had "received nothing" that would allay its concerns regarding the $46.2 to $79.2 million gap between the settlement amount and the claimed losses, the district court declined preliminary approval of the settlement. Judge Stewart finds that the district court did not abuse its discretion in doing so. With respect to the argument the Plaintiffs actually raised on appeal regarding the district court's rejection of the settlement, the Court of Appeals determines that it, too, is unavailing. As the district court had much less information about this case when it assessed the settlement than it did on summary judgment, the lower court's divergent opinions as to the merits of the Plaintiffs' claims are not inherently inconsistent, Judge Stewart notes. For this reason, the Plaintiffs' reliance upon Pilkington v. Cardinal Health, Inc., 516 F.3d 1095 (9th Cir. 2008), is misplaced, Judge Stewart holds. In Pilkington, the parties agreed to settle the case the day before the district court granted the defendants' motions for summary judgment. The Ninth Circuit held that the district court should have first evaluated the settlement under Rule 23(e) before rendering summary judgment because the parties had bound themselves to a settlement agreement subject only to court approval. In the case at bar, the district court assessed and declined to approve the parties' settlement years before it granted summary judgment to the Defendants. Pilkington, therefore, does not foreclose the district court's actions here, and the Plaintiffs even concede that the holding in that case may not be directly applicable to this one, Judge Stewart points out. Put briefly, Judge Stewart opines that the Plaintiffs have not demonstrated that the district court abused its discretion in denying approval of the settlement. Conclusion For these reasons, the judgment of the district court is affirmed in part, reversed in part, and vacated in part. The case is remanded with instructions to dismiss the Plaintiffs' claim against FCU, i.e., Count II, for lack of jurisdiction. A full-text copy of the Court's Opinion dated July 19, 2021, is available at https://tinyurl.com/hrzv26pe from Leagle.com. AMERICAN AIRLINES: Settlement on Passenger Capacity Suit Appealed ----------------------------------------------------------------- American Airlines Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the appeal on the settlement agreed in the Passenger Capacity related putative class action suit, remains pending. The company along with Delta Air Lines, Inc., Southwest Airlines Co., United Airlines, Inc. and, in the case of litigation filed in Canada, Air Canada, were named as defendants in approximately 100 putative class action lawsuits alleging unlawful agreements with respect to air passenger capacity. The U.S. lawsuits were consolidated in the Federal District Court for the District of Columbia (the DC Court). On June 15, 2018, American reached a settlement agreement with the plaintiffs in the amount of $45 million to resolve all class claims in the U.S. lawsuits. That settlement was approved by the DC Court on May 13, 2019, however three parties who objected to the settlement have appealed that decision to the United States Court of Appeals for the District of Columbia. American believes these appeals are without merit and intends to vigorously defend against them. No further updates were provided in the Company's SEC report. American Airlines Group Inc., through its subsidiaries, operates as a network air carrier. It provides scheduled air transportation services for passengers and cargo. American Airlines Group Inc. was founded in 1934 and is headquartered in Fort Worth, Texas. AMERICAN GENERAL: Buck Appeals Class Cert. Bid Denial to 3rd Cir. ----------------------------------------------------------------- Plaintiffs DUANE BUCK and ANN BUCK filed an appeal from a court ruling entered in the lawsuit entitled DUANE BUCK and ANN BUCK, on behalf of themselves and all others similarly situated, Plaintiffs v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Defendant, Case No. 1-17-cv-13278, in the United States District Court for the District of New Jersey. The lawsuit involves "universal" life insurance policies issued by American General Life Insurance Company (AGLIC). Universal life insurance is a form of permanent life insurance also known as "flexible premium" adjustable life insurance. Universal life insurance is designed to give policyholders flexibility, both in the payment of premiums and the adjustment of death benefits. The Defendant allegedly provided faulty calculations to its universal life insurance policyholders depicting how decreases in death benefits and/or changes in the amount of premiums would affect the maximum premium payments policyholders could make without resulting in a violation of federal tax regulations and causing adverse tax consequences to the policyholders. Such adverse tax consequences include rendering cash values and/or death benefits of policyholders taxable. According to the complaint, AGLIC did not disclose its faulty calculations to Plaintiffs, who continued to pay planned premiums at the level and frequency which Plaintiffs and AGLIC had agreed upon. The Plaintiffs are taking an appeal pursuant to Fed. R. Civ. P. 23(f) from the Court's Order dated February 25, 2021, denying their motion to certify class. The appellate case is captioned as Duane Buck, et al. v. American General Life Insurance Co., Case No. 21-2327, in the United States Court of Appeals for the Third Circuit, filed on July 16, 2021.[BN] Plaintiffs-Petitioners ANN BUCK and DUANE BUCK, on behalf of themselves and all others similarly situated, are represented by: Scott B. Gorman, Esq. GORMAN & GORMAN 457 Haddonfield Road Liberty View, Suite 400 Cherry Hill, NJ 08002 Telephone: (856) 665-4300 E-mail: sgorman@gormanlegal.com - and - Craig S. Hilliard, Esq. Martin P. Schrama, Esq. STARK & STARK P.O. Box 5315 Princeton, NJ 08543 Telephone: (609) 896-9060 E-mail: chilliard@stark-stark.com mschrama@stark-stark.com Defendant-Respondent AMERICAN GENERAL LIFE INSURANCE CO. is represented by: Andrew P. Fishkin, Esq. EDWARDS & ANGELL Gateway Three Newark, NJ 07102 Telephone: (201) 623-2626 E-mail: afishkin@fishkinlucks.com - and - Zachary Winthrop Silverman, Esq. FISHKIN LUCKS One Riverfront Plaza The Legal Center, Suite 410 Newark, NJ 07102 Telephone: (973) 536-2800 E-mail: zsilverman@fishkinlucks.com AMERICAN NATIONAL: Wins Summary Judgment Bid vs MSP Recovery ------------------------------------------------------------ In the class action lawsuit captioned as MSP RECOVERY CLAIMS, SERIES LLC, v. AMERICAN NATIONAL PROPERTY & CASUALTY CO., Case No. 1:20-cv-24077-CMA (S.D. Fla.), the Hon. Judge Cecilia M. Altonaga entered an order: 1. granting American National's Motion for Summary Judgment; and 2. directing Clerk of Court to close this case, and any denying pending motions as moot. American National provides insurance services. The Company offers property and casualty, including automobile. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/378fF9F at no extra charge.[CC] ANHEUSER-BUSCH: Response to Jackson Class Cert Bid Due August 2 --------------------------------------------------------------- In the class action lawsuit captioned as Jackson, et al., v. Anheuser-Busch InBev SA/NV, LLC, et al., Case No. 1:20-cv-23392 (S.D. Fla.), the Hon. Judge Beth Bloom entered an order that the Defendants shall respond to Paintiffs' Motion for Class Certification by no later than August 2, 2021. The suit alleges violation of the Magnuson-Moss Warranty Act. The nature of suit states Torts -- Personal Injury -- Other Personal Injury. Anheuser-Busch InBev is the world's largest brewer.[CC] APPLE INC: Settles FaceTime iOS 7 Class Action for $18 Million -------------------------------------------------------------- William Gallagher, writing for Apple Insider, reports that if you're still steaming over Apple requiring iOS 7 for FaceTime to keep working, you've finally had your day in court, and now you're getting the $3.06 you deserve. Perhaps you can put the money toward an iPhone 12 Pro Max, where your $3.06 check from Apple will reduce the cost of that to merely $1,095.94. Or you could cut the cost of the Apple One Premier bundle down to $21.93 -- for this month, anyway. What happened is that in 2014, millions of people were using an iPhone 4 or iPhone 4S, and FaceTime got cut off. To get FaceTime working again, you had to update to iOS 7 -- which your phone did mostly support, but people were wary of. Apple's iOS 7 had a huge visual change, moving from skeuomorphism to a more flat look. It was also said to be buggy, or at least enough so that some people did not want to upgrade. According to the successful plaintiffs, Apple made a change to FaceTime in order to comply with a ruling that it infringed on certain patents. Then when alternative providers proved expensive, Apple reportedly devised its own back-end system for FaceTime, and that's what required iOS 7. It's claimed that this saved Apple millions of dollars, but the company was clearly a penny wise and a dollar foolish, because now that it's been forced to pay out an entire $3.06 per person affected. If that's you, though, then at the very least, you can now take that to the bank and know that for once, you got a check out of Apple, instead of the other way around. Don't let anyone tell you it's a small victory, it's still a victory and you probably didn't put a lot of effort into getting it, either. Although, if your name is Christina Grace or Ken Potter, maybe you did. Following this issue with FaceTime in 2014, Grace and Potter filed a class action suit in 2017, which led to this big pay day. For leading the class action, it was announced that they would be awarded up to $7,500 each. They filed on February 3, 2017, and Apple caved under pressure on April 28, 2021. So that's $4.85 for each of the 1,545 days the case was in contention. Assuming an eight-hour working day, that's 61 cents per hour, or less than a tenth of the US minimum wage. Apple is actually paying out $18 million, but of the people affected, everyone but Grace and Potter are getting $3.06. Lawyers for the class action suit are expected to get just a teeny bit more, at something like $6.6 million. But to be fair, that includes expenses of $1.1 million. If you've been notified of your share of Apple's $18 million, note that you have only 90 days in which to cash that check. [GN] AREA STUDIO: Tatum-Rios Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Area Studio, LLC. The case is styled as Lynnette Tatum-Rios, individually and on behalf of all other persons similarly situated v. Area Studio, LLC, Case No. 1:21-cv-06438 (S.D.N.Y., July 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Area -- https://area.nyc/ -- is a dynamic design studio and consulting company, specializing in Residential Design, Model Merchandising, Event Planning, E-Design, Styling, Staging and Decor for Interiors.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com ARMOUR RESIDENTIAL: Bid to Nix Javelin Shareholder Suit Pending --------------------------------------------------------------- ARMOUR Residential REIT, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the motion to dismiss filed in the class action suit entitled, In re JAVELIN Mortgage Investment Corp. Shareholder Litigation (Case No. 24-C-16-001542), is pending. Nine putative class action lawsuits have been filed in connection with the tender offer and merger for JAVELIN. The Tender Offer and Merger are collectively defined herein as the "Transactions." All nine suits name ARMOUR, the previous members of JAVELIN's board of directors prior to the Merger (of which eight are current members of ARMOUR's board of directors) (the "Individual Defendants") and JMI Acquisition Corporation as defendants. Certain cases also name ACM and JAVELIN as additional defendants. The lawsuits were brought by purported holders of JAVELIN's common stock, both individually and on behalf of a putative class of JAVELIN's stockholders, alleging that the Individual Defendants breached their fiduciary duties owed to the plaintiffs and the putative class of JAVELIN stockholders, including claims that the Individual Defendants failed to properly value JAVELIN; failed to take steps to maximize the value of JAVELIN to its stockholders; ignored or failed to protect against conflicts of interest; failed to disclose material information about the Transactions; took steps to avoid competitive bidding and to give ARMOUR an unfair advantage by failing to adequately solicit other potential acquirors or alternative transactions; and erected unreasonable barriers to other third-party bidders. The suits also allege that ARMOUR, JAVELIN, ACM and Acquisition aided and abetted the alleged breaches of fiduciary duties by the Individual Defendants. The lawsuits seek equitable relief, including, among other relief, to enjoin consummation of the Transactions, or rescind or unwind the Transactions if already consummated, and award costs and disbursements, including reasonable attorneys' fees and expenses. The sole Florida lawsuit was never served on the defendants, and that case was voluntarily dismissed and closed on January 20, 2017. On April 25, 2016, the Maryland court issued an order consolidating the eight Maryland cases into one action, captioned In re JAVELIN Mortgage Investment Corp. Shareholder Litigation (Case No. 24-C-16-001542), and designated counsel for one of the Maryland cases as interim lead co-counsel. On May 26, 2016, interim lead counsel filed the Consolidated Amended Class Action Complaint for Breach of Fiduciary Duty asserting consolidated claims of breach of fiduciary duty, aiding and abetting the breaches of fiduciary duty, and waste. On June 27, 2016, defendants filed a Motion to Dismiss the Consolidated Amended Class Action Complaint for failing to state a claim upon which relief can be granted. A hearing was held on the Motion to Dismiss on March 3, 2017, and the Court reserved ruling. On September 27, 2019, the court further deferred the matter for six months. On June 15, 2020, co-counsel for the plaintiff filed a notice of supplemental authority requesting to move the matter forward. On August 19, 2020, a Notification To Parties of Contemplated Dismissal was sent out by the Clerk of the Circuit Court to all parties. Counsel for the plaintiff responded on August 24, 2020, with a Motion to Defer Dismissal. No further action has been taken by the court. Each of ARMOUR, JAVELIN, ACM and the Individual Defendants intends to defend the claims made in these lawsuits vigorously; however, there can be no assurance that any of ARMOUR, JAVELIN, ACM or the Individual Defendants will prevail in its defense of any of these lawsuits to which it is a party. ARMOUR said, "An unfavorable resolution of any such litigation surrounding the Transactions may result in monetary damages being awarded to the plaintiffs and the putative class of former stockholders of JAVELIN and the cost of defending the litigation, even if resolved favorably, could be substantial. Due to the preliminary nature of all of these suits, ARMOUR is not able at this time to estimate their outcome." No further updates were provided in the Company's SEC report. ARMOUR Residential REIT, Inc. invests in residential mortgage-backed securities in the United States. The company is managed by ARMOUR Capital Management LP. The company was founded in 2008 and is based in Vero Beach, Florida. AUSTRALIA: Judge Orders Youth Detainees' Settlement Be Made Public ------------------------------------------------------------------ Kate Ashton, writing for ABC News, reports that a Federal Court judge has ordered the settlement figure the Northern Territory government has agreed to pay former youth justice detainees be made public. Two former detainees launched a class action in 2016, with their lawyers seeking damages and compensation after claiming they had been assaulted, battered and falsely imprisoned while in youth detention facilities in Darwin and Alice Springs. Similar claims of mistreatment were investigated in a 4 Corners episode that sparked a royal commission the same year. The class action -- which could apply to 1,200 others who spent time in NT youth detention centres between 2006 and 2017 -- was settled with a denial of liability from the NT government in May 2021, but it still needs court approval. The Northern Territory government sought a suppression order on the settlement figure, but Federal Court Justice Debra Mortimer on July 26 ordered that it be made public. One of the reasons for her decision, according to her written judgement, is that the information would likely become public anyway. "To use a colloquial expression, word will get out," she said. "It is a very large sum of money indeed -- even assuming material deductions for legal and distribution costs." The final settlement figure, plus legal costs, is expected to be publicised in the coming days once remaining legal issues are resolved. NT government cites 'sensational' reporting in suppression bid In her judgement, Justice Mortimer said the NT government was concerned the settlement sum "would be reported in a way which was sensational and out of context". She found that had "no merit" and said it was not the role of the courts to "police" media reporting. "It is appropriate that the outcome of this proceeding, and the conduct of the proceeding, be fully reported," she said. "It concerns a subject matter of considerable public importance, subject matter which was considered by a royal commission less than four years ago." Justice Mortimer also said the case deserved a high level of transparency given it involved public funds. "Those individuals were mostly Aboriginal, were minors, and were deprived of their liberty, when the impugned conduct occurred," she said. "There should be informed public scrutiny of what has occurred, so that there may be informed public discussion of it - these are some of the proper consequences of open justice." A spokeswoman for class action lawyers Maurice Blackburn said they were unable to comment for legal reasons. Territory Families Minister Kate Worden flagged more details would be available in the coming days. "The Northern Territory government has been cooperating fully with these proceedings," she said. [GN] AZUNA LLC: Nisbett Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Azuna LLC. The case is styled as Kareem Nisbett, individually and on behalf of all other persons similarly situated v. Azuna LLC, Case No. 1:21-cv-06436 (S.D.N.Y., July 28, 2021). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Azuna -- https://azunafresh.com/ -- is dedicated to providing clean air fresheners to enhance spaces.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com B.L. DOWNEY: N.D. Illinois Tosses Singleton Suit Over BIPA Breach ----------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to dismiss the lawsuit titled ELMER SINGLETON JR. and THEODORE DAVIS, individually and on behalf of all other similarly situated, Plaintiffs v. B.L. DOWNEY COMPANY LLC, Defendant, Case No. 21 C 236 (N.D. Ill.). Elmer Singleton and Theodore Davis bring the putative class action alleging that their former employer, B.L. Downey Company LLC, violated the Illinois Biometric Information Privacy Act ("BIPA"). Downey has filed a motion to dismiss, arguing that the Plaintiffs' claims are preempted by the Labor Management Relations Act. Downey scans and stores its employees' fingerprints in order to record when they clock in and out of work. The Plaintiffs allege, in sum, that this violates BIPA because Downey failed to obtain their consent and tell them how their fingerprint information would be disclosed to third parties in the process. The Plaintiffs' employment with Downey was subject to a collective bargaining agreement containing a "management rights clause." In Miller v. Southwest Airlines, the Seventh Circuit held that a substantially similar management rights clause meant that BIPA claims about clocking in and out of work were preempted by the Railway Labor Act. 926 F.3d 898 (7th Cir. 2019). District Judge Thomas M. Durkin holds that the Railway Labor Act does not apply to the Plaintiffs in this case. But Downey points out that the preemption analyses under the Railway Labor Act ("RLA") and the Labor Management Relations Act ("LMRA") are "virtually identical." The Plaintiffs argue that Miller runs contrary to the Supreme Court's preemption analysis in Allis Chalmers Corp. v. Lueck, 472 U.S. 202 (1985). But as the Plaintiffs note in their brief, the Supreme Court later built upon its preemption analysis in Lingle v. Norgle Div. of Magic Chef, Inc., 486 U.S. 399 (1988), Judge Durkin explains. And the Seventh Circuit applied Lingle in Miller. To the extent the Seventh Circuit got it wrong, that is an argument for the Seventh Circuit. This Court is bound to follow Miller and its straight-forward implications, Judge Durkin points out. Nevertheless, the Plaintiffs argue that Miller's application here is not straightforward in that the question of whether Downey violated BIPA is not dependent upon any analysis of any language within the collective bargaining agreement. This argument, however, runs directly counter to Miller's express holding, Judge Durkin opines. The Seventh Circuit held that there can be no doubt that how workers clock in and out is a proper subject of negotiation between unions and employers and is, indeed, a mandatory subject of bargaining. The Judge adds that the Plaintiffs' claims in this case are similarly "dependent upon" analysis of the collective bargaining agreement, such that Miller controls. The Plaintiffs also contend that "there is no basis to find that the union provided a 'written release' to Downey," in arguing that the collective bargaining agreement's management rights clause is not relevant to their BIPA claims. They argue that it does not matter if a union consents to use of fingerprints through a management rights clause, because consent is not the same as a BIPA-complaint written release. Again, Judge Durkin holds, this argument is contrary to Miller in which, as noted, the court implied that a collective bargaining agreement like the one at issue here could establish consent sufficient under BIPA. This Court does not have the authority to decide otherwise. Lastly, the Plaintiffs ask the Court to join their union as a party and stay the case in favor of arbitration. Putting aside the fact that the Plaintiffs have not made motions for this relief, it runs contrary to the LMRA and precedent regarding what to do with a case preempted by the LMRA, Judge Durkin opines. Judge Durkin points out that Plaintiffs do not allege or argue that they complied with the grievance procedures in the collective bargaining agreement, so their claims are dismissed without prejudice for failure to exhaust. And since the case must be dismissed, the Court no longer has the authority to stay the case or consider joinder of additional parties. Conclusion Therefore, Downey's motion to dismiss is granted, and the case is dismissed without prejudice. A full-text copy of the Court's Memorandum Opinion and Order dated July 19, 2021, is available at https://tinyurl.com/2cczmpxe from Leagle.com. BA SPORTS: Class Certification Deadlines in Silver Suit Vacated --------------------------------------------------------------- In the class action lawsuit captioned as MARC SILVER, et al., v. BA SPORTS NUTRITION, LLC, Case No. 3:20-cv-00633-SI (N.D. Cal.), the Hon. Judge Susan Illston entered an order vacating class certification deadlines and setting case management conference for August 13, 2021. The parties appear to agree that the current 18 certification deadlines should be vacated, but agree on little else. In light of the pending and ongoing discovery disputes which are presently before the Special Master, the Court finds it appropriate to vacate the class certification schedule. The Court notes that the Special Master has recently ordered defendant to respond to plaintiffs' first set of interrogatories and that there is an upcoming discovery hearing set later in July. The Court finds that the most efficient course is to set a case management conference for August 13 at 3:00 p.m., at which time the Court will set schedules for resolving defendant's motion for summary judgment and class certification. The parties shall file a succinct, non-argumentative joint case management conference statement by August 6. That statement shall include a list of any discovery matters pending before the Special Master and the status thereof; any schedule for the production of documents or interrogatory responses as well as any scheduled depositions; and the parties' proposals on schedules for resolving the summary judgment motion and class certification. BA Sports Nutrition produces and sells sports drinks. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/2VkanFm at no extra charge.[CC] BDO CANADA: Averts Class Action Over Negligence in Audit Reports ---------------------------------------------------------------- Michael Ng, Esq., of Stikeman Elliott LLP, in an article for Mondaq, reports that the Ontario Divisional Court's recent decision in Whitehouse et al. v. BDO Canada LLP provides guidance on when a certification motion can be dismissed in the context of a pleading that fails to disclose a cause of action. The Divisional Court upheld a previous ruling in determining that a financial auditor, in performing audit engagements for a portfolio management firm, owed no duty of care to the firm's unitholders in funds. Key Takeaways The Divisional Court's decision has some direct implications for financial auditors and defendants to class actions. Specifically, it reinforces that: where the plaintiff has not specifically pled material facts showing a precise undertaking/representation to assist unitholders, allegations of negligence brought against auditors by third-party investors will likely not succeed and a corresponding class proceeding will likely not be certified; and an action will not be certified as a class proceeding if the cause of action in negligence is based on a duty owed to an overly broad, unknown, and indeterminate group of class members. Background The plaintiffs were individual unitholders in mutual fund trusts (the Funds) issued by Crystal Wealth Management System Ltd (the Company), a portfolio management firm. In accordance with the Securities Act (Ontario) (OSA), the Company was required to prepare annual audited financial statements to send to every unitholder and file with the Ontario Securities Commission (OSC). The Company retained BDO Canada LLP (the Auditor) to audit the Funds. From 2007 to 2015, the Auditor provided clean audit opinions. In April 2017, the OSC issued a temporary order prohibiting trading in the Funds and trading in securities held by the Funds. In April 2017, the OSC also appointed Grant Thornton LLP as receiver (the Receiver) over all the assets of the Company. The Receiver subsequently found that the Funds' net asset values, as disclosed by the Company, were false or manipulated and that, as a consequence, the net asset values of certain Funds had been materially overstated. Since April 2017, the unitholders have been unable to redeem their investments in the mutual funds. In June 2017, the plaintiffs commenced an action under the Ontario Class Proceedings Act, 1992 against the Auditor, alleging negligence in preparation of the audit reports for the Company. The claim sought a declaration that the Auditor had a duty of care to the class members, which it breached by negligently performing its professional services. The "class members" included every person who invested in any of the Funds of the Company from April 12, 2007 to April 7, 2017 and who retained investments in any of the Funds on April 7, 2017. Certification Decision On June 15, 2018, the plaintiffs brought a motion at the Ontario Superior Court of Justice to certify the action as a class proceeding. The motion judge refused to certify the class proceeding against the Auditor, stating that the pleading failed to disclose a cause of action. For negligent performance of a service to be a cause of action, there must have been a duty of care, which in turn requires (inter alia) sufficient proximity and reasonable foreseeability. However, any duty that is owed can be negated by public policy concerns. After reviewing existing settled law on the duty of care owed to unitholders (including Hercules Managements Ltd v Ernst & Young, Deloitte & Touche v Livent Inc. (Receiver of) and Lavender v Miller Bernstein LLP each as discussed below), the motion judge held that for cases arising from the negligent performance of a service: -- there must be a specific undertaking from the defendants to the plaintiffs; and the plaintiffs' reliance must be sourced within that undertaking. However, any duty that appears to be owed on that basis might nevertheless be negated on the ground, for example, that it would impose indeterminate liability on the defendants. The motion judge held that the plaintiffs failed to plead any facts indicating a "direct relationship, undertaking or representation" between the Auditor and the class members. Without a pleaded basis for sufficient proximity, the motion judge held it was plain and obvious that the Auditor, in performing statutory audits, did not owe the plaintiffs a duty of care with respect to their investment decisions. There was no undertaking for the class members to rely on. The motion judge further considered whether a duty of care arose from the Auditor's role in ensuring the Company's compliance with Ontario securities law. The motion judge ultimately concluded that the relationship between the Auditor, the OSC and the unitholders was too remote to ground a duty of care. The motion judge noted that there was no undertaking by the Auditor to assist the proposed class members in their investment decisions or safeguard them from the Company's non-compliance with the OSA. The plaintiffs appealed the motion judge's decision to the Divisional Court. Divisional Court Decision On appeal, the Divisional Court upheld the motion judge's ruling that the plaintiffs had not properly pleaded a cause of action in negligence. Specifically, the Divisional Court held that (i) there was no duty of care that the Auditor owed to the class members, and (ii) the class member definition, as pleaded, was overly broad and indeterminate. Relationship between auditor and investors The Divisional Court noted that the judicial and appellate authority considered by the motion judge confirmed that pleaded facts must suggest a precise undertaking of responsibility that gives rise to a relationship owed to the class members. Two cases were particularly influential in the ruling: Hercules Managements Ltd v Ernst & Young involved a similar fact pattern in which investors claimed for loss against a company's auditor. The Supreme Court of Canada ultimately reasoned that the auditor's mere knowledge of the investors is insufficient for a claim in negligence. The Court also acknowledged that many investors could conceivably review and rely on an audit report even after an auditor ceases to act for the company. Therefore, the Court cautioned that a finding of a category of duty of care would create a risk of indeterminate liability, which might be contrary to public policy. Lavender v Miller Bernstein LLP involved a company that retained an auditor to audit reports to file with the OSC. The Ontario Court of Appeal confirmed that absent making representations to the members of the class, or an undertaking to assist the investors in particular investment decisions, there was no direct relationship between the Auditor and the investors. On appeal, the plaintiffs argued that the motion judge failed to accept, as pleaded, that: (i) the audit reports were delivered directly to the unitholders, (ii) the Auditor knew and intended that the unit-holders would rely on the reports for investment decisions, and (iii) the unitholders did rely on the audit reports in making their investment decisions. The Divisional Court affirmed the motion judge's conclusion that simply providing audit reports to the OSC did not give rise to a level of undertaking to assist unitholders with investment decisions. Similarly, the Court held that the Auditor's mere knowledge that the unitholders might rely on the reports did not establish an undertaking either. Ultimately, the Court held that in failing to plead specific facts in which intent could be inferred, a conclusion could not be drawn that the Auditors intended for the unitholders to rely on the reports for their investment decisions. Class member definition The Divisional Court held that the class definition, which included every person who invested in any Funds from April 12, 2007 to April 2017 and retained those investments on April 7, 2017, was overly broad and indeterminate. Specifically, the Divisional Court reasoned that the class definition implied that there would be members who relied on the Auditor's reports but acquired units after the Auditor ceased to be the Auditor. The Court observed that, if the plaintiffs' argument were to be accepted, a cause of action in negligence could be founded on a duty an auditor owed to an unknowable group of prospective investors. The Court concluded that this would lead to the risk of indeterminate liability, against which the Supreme Court of Canada had cautioned in Hercules. [GN] BECKER & POLIAKOFF: Faces Slowinski FDCPA Suit Over Debt Collection ------------------------------------------------------------------- Celeste A. Slowinski, on behalf of herself and others similarly situated v. Becker & Poliakoff, P.A., Case No. 130754242 (Fla. Cir., Broward Cty., July 15, 2021) is a class action brought under the Fair Debt Collection Practices Act (FDCPA), for the benefit of Florida consumers whose rights have been violated by Becker & Poliakoff. According to the complaint, the Plaintiff is obligated, or allegedly obligated, to pay a debt owed or due, or asserted to be owed or due. The Plaintiff's obligation, or alleged obligation, owed or due, or asserted to be owed or due, arises from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes-namely, condominium assessments for her personal property (the "Debt"). Ms. Slowinski is a natural person who at all relevant times resided in Broward County, Florida. The Defendant is a law firm headquartered in Broward County, Florida. The Defendant's "attorneys in the Community Association Law Practice Group cover the entire spectrum of legal counseling of condominium, cooperative, time shares and homeowners' associations," which includes " [t]he collection of delinquent assessments."[BN] The Plaintiff is represented by: Jesse S. Johnson, Esq. James L. Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 7601 . Federal Highway, Suite A-23 0 Boca Raton, FL 33487 Telephone: (561) 826-5477 E-mail: jdavidson@gdrlawfinn.com jjohnson@gdrlawfinn.com - and - Matthew Bavaro, Esq. Matis H. Abarbanel, Esq. Loan Lawyers, Esq. 320 1 Griffin Road, Suite 100 Ft. Lauderdale, FL 333 12 Telephone: (954) 523-4357 E-mail: Matthew@Fightl3.com Matis@Fightl3.com BERKELEY COUNTY: Mazzell Suit Seeks to Certify Deputy Coroner Class ------------------------------------------------------------------- In the class action lawsuit captioned as Kristin Mazzell, Sharon Shuler and George Winningham; On behalf of themselves and all others Similarly Situated, v. George Oliver Berkeley County Coroner and Berkeley County, Case No. 2:20-cv-03937-DCN (D.S.C.), the Plaintiffs ask the Court to enter an order grant their motion to: 1. authorize this matter to proceed as a collective action on behalf of the following class: "All current and former Deputy Coroners who were not paid overtime wages for all hours worked in excess of 40 hours per work week from [three years from the date of Court’s Conditional Certification Order] to the present." 2. authorize mailing of the Proposed Notice to all putative plaintiffs who worked during the time period beginning three years prior to the filing of this action through the present; and 3. require Defendants to produce a list containing the names, addresses, and telephone numbers of all potential opt-in plaintiffs to this action so they can receive notice of their potential claims. The Plaintiffs are former employees of the Defendants who files this action against Defendants for claims for unpaid overtime compensation pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. section 201, et seq., on behalf of themselves and all other current and former similarly situated Deputy Coroners employed by Defendants within the last 3 years. The Defendants employed other Deputy Coroners who also performed these same duties. Defendants paid all its Deputy Coroners using the same compensation plan, and did not pay them overtime compensation when they worked over 40 hours in a workweek. A copy of the Plaintiffs' motion to certify class dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3fhEnIS at no extra charge.[CC] The Plaintiffs are represented by: Marybeth Mullaney, Esq. MULLANEY LAW 652 Rutledge Ave Suite A Charleston, SC 29403 Telephone: (843) 588-5587 E-mail: marybeth@mullaneylaw.net BGIS GLOBAL: Court Enters Case Management Order in Diaz Suit ------------------------------------------------------------ In the class action lawsuit captioned as JAVIER DIAZ, individually and on behalf of all others similarly situated, v. BGIS GLOBAL INTEGRATED SOLUTIONS US LLC, Case No. 5:21-cv-02804-VKD (N.D. Cal.), the Hon. Magistrate Judge Virginia K. Demarchi entered a case management order as follows: -- Deadline to amend pleadings: September 17, 2021 -- Mediation deadline: October 18, 2021 -- Deadline to file class March 15, 2022 certification motion: -- Deadline to file opposition April 26, 2022 re class certification: -- Deadline to file reply May 10, 2022 re class certification: -- Class certification hearing: May 31, 2022 BGIS Global provides commercial services. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3xcuHpd at no extra charge.[CC] BIG PICTURE: 6 Classes and Sub-Classes Certified in Williams Suit ----------------------------------------------------------------- The U.S. District Court for the Eastern District of Virginia, Richmond Division, issued a Memorandum Opinion granting the Plaintiffs' Motion for Class Certification in the lawsuit styled LULA WILLIAMS, et al., Plaintiffs v. BIG PICTURE LOANS, LLC, et al., Defendants, Case No. 3:17-cv-461 (E.D. Va.). The Memorandum Opinion addresses the Plaintiffs' Renewed Motion for Class Certification of Claims Against Defendant Matt Martorello in which the Plaintiffs, on behalf of themselves and all other similarly situated individuals, request that the Court certify their claims against Mr. Martorello. He opposes class certification on four main grounds: (1) the Plaintiffs waived the ability to pursue a class action; (2) the class members are not readily ascertainable; (3) common issues do not predominate; and (4) a class action is not a superior method of bringing suit. Background The case is one of four similar, but distinct, actions arising out of a so-called "Rent a Tribe" scheme allegedly orchestrated by Matt Martorello, members of his family, companies that he controls, and investors, who allegedly funded the scheme (the "Martorello Defendants") along with two entities formed under the tribal laws of the Lac View Band of Lake Superior Chippewa Indians ("LVD"), i.e., Big Picture Loans, LLC and Ascension Technologies, Inc. ("Tribal Defendants"). In addition to this case, i.e., Williams, et al. v. Big Picture Loans, LLC, et al., 3:17-cv-461 (E.D. Va.), the other related cases are (1) Renee Galloway, et al. v. Big Picture Loans, LLC, et al., 3:18-cv-406 (E.D. Va.) ("Galloway I"), (2) Renee Galloway, et al. v. Martorello, et al., 3:19-cv-314 (E.D. Va.) ("Galloway II"), and (3) Renee Galloway, et al. v. James Williams, Jr., et al., 3:19-cv-470 (E.D. Va.) ("Galloway III"). The term "Rent-a-Tribe" refers to the practice of so-called payday lenders partnering with Native American tribes in an effort to cloak the payday lenders in the sovereign immunity of Native American tribes, and, in so doing, to preclude enforcement of the interest rate caps in state usury laws. The Plaintiffs are all Virginia citizens, who took out small-dollar high-interest loans from one of two LVD-affiliated entities (i.e., Red Rock or its successor Big Picture). The Plaintiffs' basic argument is that the loans from these entities were made in violation of Virginia's usury laws, and Martorello, who is not a member of any Native American tribe, was both the de facto head and primary beneficiary of the LVD's lending operations. B. Plaintiff's Claims The Plaintiffs are pursuing five claims against Martorello. First, the Plaintiffs are seeking declaratory judgment that the choice of law and forum-selection provisions in their loan contracts are void and unenforceable under Virginia law and Virginia's well-established public policy. Second, the Plaintiffs allege that Martorello violated 18 U.S.C. Section 1962(c) of the Racketeer Influenced and Corrupt Organizations Act statute (which prohibits the collection of unlawful debt). The Plaintiffs seek actual damages, treble damages, costs, and attorney's fees. Third, the Plaintiffs allege that Martorello violated 18 U.S.C. Section 1962(d) of the RICO statute (by conspiring to violate 18 U.S.C. Section 1962(c)). The Plaintiffs seek actual damages, treble damages, costs, and attorney's fees. Fourth, the Plaintiffs allege that Martorello violated Virginia's usury law, namely Va. Code Section 6.2-305(A). The Plaintiffs seek damages equal to the total amount of interest paid in excess of 12% plus twice the amount of such usurious interest that was paid in the two years preceding the filing of this action, attorney's fees, and costs. Finally, the Plaintiffs allege that Martorello was unjustly enriched because he received payments from illegal and unenforceable loan contracts. The Plaintiffs seek all amounts repaid on loans with Big Picture or Red Rock. Counts II through V are the subject of this Opinion. C. Proposed Classes The proposed classes are: * Big Picture RICO Class: All Virginia consumers who entered into a loan agreement with Big Picture where a payment was made from June 22, 2013 to December 20, 2019; * Big Picture Usury Sub-class: All Virginia consumers who paid any principal, interest, or fees on their loan with Big Picture from June 22, 2015 to December 20, 2019; * Big Picture Unjust Enrichment Sub-class: All Virginia consumers who paid any amount on their loan with Big Picture from June 22, 2014 to December 20, 2019; * Red Rock RICO Class: All Virginia consumers who entered into a loan agreement with Red Rock where a payment was made from June 22, 2013 to December 20, 2019; * Red Rock Usury Sub-class: All Virginia consumers who paid any principal, interest, or fees on their loan with Red Rock from June 22, 2015 to December 20, 2019; and * Red Rock Unjust Enrichment Sub-class: All Virginia consumers who paid any amount on their loan with Red Rock from June 22, 2014 to December 20, 2019. All proposed class members are (or were) Virginia citizens, who took out loans with interest rates above 12% from entities affiliated with the LVD tribe (i.e., Big Picture or Red Rock) and who made payments on those loans. D. Mr. Martorello's Involvement Over Time For nearly every argument Martorello makes in opposition to class certification, Martorello asserts that, because his role in the lending scheme changed between 2013 and 2019, the class members will be situated differently vis-a-vis each other across different time periods, and those differences between class members will result in a need for a series of complicated mini-trials to determine which class members can recover. Shortly after the Fourth Circuit's decision in Williams v. Big Picture Loans, LLC, 929 F.3d 170 (4th Cir. 2019), the Plaintiffs alleged that Martorello and others had made material misrepresentations to this Court and the Fourth Circuit on which the Court and the Fourth Circuit had relied in making their respective decisions. At Martorello's request, the Court subsequently held a hearing on the alleged misrepresentations; thereafter received briefing; and then issued an opinion finding that several material misrepresentations had been made to the Court ("November 18 Opinion"). As explained fully in the November 18 Opinion, there is substantial (and largely unrebutted) evidence that, throughout the relevant class periods, Martorello had de facto control of Red Rock and Big Picture's lending operations, Senior District Judge Robert E. Payne notes. Judge Payne opines that, among other things, there is unrebutted evidence that Martorello was both highly instrumental and heavily involved in the LVD's entrance into the business of payday lending. He adds that notwithstanding that Martorello's Response Memorandum was filed after the November 18 Opinion was issued, the Response Memorandum fails to take any of the Court's findings into account and continues to advance some of the very same misrepresentations addressed in the November 18 Opinion. On the current record, no credence can be given to Martorello's arguments challenging class certification on the ground that, because of his changing roles, the Plaintiffs' claims will not be susceptible to class-wide proof, Judge Payne points out. Certainly, Martorello's conclusory assertions do not overcome the Plaintiffs' evidence that disproves the need for the "mini-trials" that Martorello's arguments attempt to conjure. A. Rule 23(a) Analysis Under Rule 23(a), class certification is appropriate if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. The Plaintiffs assert that they can readily identify the class through objective, electronic data analysis of data that will be voluntarily provided by Big Picture and Ascension once the class has been certified. Judge Payne notes that the requirement that a class be readily identifiable does not mean that the Plaintiffs must present the Court (or Martorello) with a list of each and every proposed class member at the time of class certification. And, while the parties are not presently in possession of the detailed loan data for each of the proposed class members, that is not to say that they are totally ignorant of the likely candidates for class membership. The putative class members in this case are a subset of the class members defined by the Galloway III settlement (and the proposed class counsel in this case were also class counsel in Galloway III). Judge Payne also finds that there are no statute of limitations problems for the usury or unjust enrichment subclasses even though the Plaintiffs entered into loan contracts at different times. The numerosity requirement is easily met because the putative class consists of at least 12,530 individuals, Judge Payne holds. Joinder of over 12,000 individuals would undoubtedly be impracticable. The commonality requirement necessitates that there be common questions of law or fact among the class members such that common treatment is "necessary and beneficial." Judge Payne holds that the Plaintiffs have met their burden of showing that commonality exists among the proposed classes. The proposed class members' claims are all based on the same tribal lending scheme, and in particular, on "the same conduct, practice, and procedure on the part of Martorello." The class members, therefore, share a common set of legal and factual questions. The typicality requirement necessitates that the claims of the representative plaintiffs be typical of those of the class. The Court finds that the typicality requirement has been met. The Plaintiffs and proposed class representatives are Lula Williams, Gloria Turnage, George Hengle, Dowin Coffy, and Felix M. Gillison, Jr. (represented by Marcella P. Singh, the administrator of the Estate of Felix M. Gillison, Jr.). The Plaintiffs are indeed part of the proposed classes, and all five Plaintiffs, as well as the proposed classes, obtained loans, with interest rates above 12%, from either Big Picture or Red Rock (i.e., the two lending entities affiliated with the LVD tribe). Therefore, the proposed class representatives suffered the same injury and have the same basic legal claims as those of the proposed class members. The only difference across class members would be the actual damages they are asserting which will not preclude a finding of typicality. Accordingly, as go the claims of the five Named Plaintiffs, so go the claims of the class. The representativeness requirement ensures that the class will be adequately represented by the named plaintiffs and class counsel. The Court finds that the representativeness requirement is satisfied for both the proposed Class Representatives and proposed Class Counsel. As noted under the analysis of the commonality and typicality factors, the Plaintiffs' interests are in line with those of the broader classes, and the Plaintiffs were, in fact, already named as class representatives in a related case, see Galloway III, 3:19-cv-470. Accordingly, the Court finds that the proposed Class Representatives will adequately represent the interests of the class (including Felix Gillison, Jr.). The Court also finds that the Proposed Class Counsel have extensive experience with class actions, consumer financial protection law, and tribal lending operations. The Court has already found them competent in a related case, Galloway III, 2020 WL 7482191, at *8 (E.D. Va. Dec. 18, 2020), and the Court reaffirms that finding here. Mr. Martorello challenges the appointment of Marcella Singh, administrator of Felix Gillison, Jr.'s estate, as a class representative on the ground that Singh has almost no first-hand knowledge of the facts of the case. The Court does not find this argument persuasive for several reasons. Judge Payne notes that Martorello consented to the substitution of Marcella P. Singh for Felix Gillison, Jr., following Gillison's death in June 2018. Judge Payne adds that allowing an estate administrator to serve as a class representative in place of a deceased plaintiff is a generally accepted practice. Under the circumstances, the Court finds that Marcella Singh, acting as the administrator of the estate of Felix Gillison, Jr., is an adequate class representative. B. Rule 23(b)(3) Analysis In addition to satisfying the Rule 23(a) factors, a class must fit into one of the three Rule 23(b) class types. Here, the class is purported to be a Rule 23(b)(3) class. Class certification under Rule 23(b)(3) is appropriate if (1) questions of law or fact common to class members predominate over any questions affecting only individual members, and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). Here, the Plaintiffs assert that common issues predominate because their claims are entirely based on standardized loan contracts and standardized conduct by Martorello. Judge Payne finds that there is strong and unrebutted evidence that Martorello's conduct was substantially the same with respect to all proposed class members. The superiority element requires that a class action be superior to other available methods for fairly and efficiently adjudicating the controversy. Under the circumstances here, a class action is both fair and efficient, Judge Payne holds. Defendant Martorello asserts that a class action would not be superior due to manageability issues. He bases this challenge on two arguments. First, he appears to be arguing that there is a risk that a significant number of proposed class members could bring suits individually. But, as noted, the Court does not find that likely. Second, Martorello asserts, as he has before, that there will be intraclass differences due to his "ever-shifting, relationships, and responsibilities over time." As noted, the Court does not find that argument credible. Conclusion For these reasons, the Plaintiff's Renewed Motion for Class Certification of Claims Against Defendant Matt Martorello will be granted. A full-text copy of the Court's Memorandum Opinion dated July 19, 2021, is available at https://tinyurl.com/bxffm5cv from Leagle.com. BIODESIX INC: Deadline Extension in Case Management Order OK'd -------------------------------------------------------------- In the class action lawsuit captioned as JOHN H. LARY, JR. M.D., v. BIODESIX, INC., Case No. 1:19-cv-03006-PAB-NRN (D. Colo.), the Hon. Magistrate Judge N. Reid Neureiter entered an order that the Joint Motion to Extend Deadlines in Case Management Order is granted. The deadlines are extended as follows: -- Completion of alternative September 20, 2021 dispute resolution: -- Filing of Rule 23 motion for October 18, 2021 class certification: -- Response to motion for class November 19, 2021 certification: -- Reply in support of motion December 20, 2021 for class certification: A copy of the Court's minute order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3zSQkwJ at no extra charge.[CC] BIOGEN INC: Bid to Dismiss Aduhelm Securities Suit Pending ---------------------------------------------------------- Biogen Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the company's motion to dismiss filed in ADUHELM Securities Litigation, is pending. The company and certain current and former officers are named as defendants in an action filed by a shareholder on November 13, 2020, in the U.S. District Court for the Central District of California and transferred to the U.S. District Court for the District of Massachusetts in March 2021. The action alleges violations of federal securities laws under 15 U.S.C Section 78j(b) and Section 78t(a) and 17 C.F.R. Section 240.10b-5 and seeks a declaration of the action as a class action and an award of damages, interest and attorneys' fees. An estimate of the possible loss or range of loss cannot be made at this time. No trial date has been set. Biogen said, "We have filed a motion to dismiss the action, which is pending." Biogen Inc. discovers, develops, manufactures, and delivers therapies for treating neurological and neurodegenerative diseases worldwide. The company was founded in 1978 and is headquartered in Cambridge, Massachusetts. BLACKBAUD INC: Court Enters Scheduling Order in Data Breach Suit ---------------------------------------------------------------- In the class action lawsuit RE: BLACKBAUD, INC., CUSTOMER DATA BREACH LITIGATION, Case No. 3:21-cv-01872-JMC (D.S.C.), the Hon. Judge J. Michelle Childs entered a scheduling order as follows: 1. The court will hold a hearing on Blackbaud's Motion to Dismiss Specific Common Law Claims and Case Management Conference No. 6 on September 2, 2021 in Courtroom 3. 2. The court expects to proceed according to the following schedule on September 2, 2021: 9:30 a.m.: Blackbaud's Argument 10:15 a.m.: Plaintiffs' Response 11:00 a.m.: Blackbaud's Reply 11:15 a.m.: Break 11:30 a.m.: Final Questions from the Court 11:45 a.m.: Case Management Conference Blackbaud is a cloud computing provider that serves the social good community -- nonprofits, foundations, corporations, and education institutions. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/2VhRHG7 at no extra charge.[CC] BLUE CROSS: Class Cert. Bid Filing Extended to Sept. 28 ------------------------------------------------------- In the class action lawsuit captioned as C. et al., v. Blue Cross Blue Shield of Massachusetts Inc., Case No. 1:18-cv-12278 (D. Mass.), the Hon. Judge Allison D. Burroughs entered an order granting extension of time to September 28, 2021 to file motion for class certification and other dates (60 day extension on dates). Blue Cross Blue Shield of Massachusetts is a state licensed nonprofit private health insurance company under the Blue Cross Blue Shield Association with headquarters in Boston. The Boston location located on 133 Federal Street is currently under study as a pending Boston Landmark by the Boston Landmarks Commission. The suit alleges violation of Employee Retirement Income Security Act.[CC] BOSTON SCIENTIFIC: Shine Lawyers to Proceed Suit on Mesh Implants ----------------------------------------------------------------- Emily McPherson, writing for 9News, reports that Shine Lawyers is proceeding with a class action lawsuit on behalf of Australian women who say they have suffered complications from mesh implants sold by multinational medical device maker Boston Scientific. The legal team from Shine, who were behind a landmark class action against Johnson & Johnson over its damaging pelvic mesh implants, had been competing with another law firm for the right to take carriage of the Boston Scientific case. Earlier this year in March, Shine Lawyers filed its class action suit against Boston Scientific in the Federal Court. At almost the same time, Sydney firm AJB Stevens took its case against Boston Scientific to the NSW Supreme Court. The Federal Court does not allow competing class actions and was poised to make a decision on which would continue. Shine Lawyers filed an application to the court to halt or, as it is known in legal parlance, "stay" the AJB Stevens class action. However, the stay application was never heard as AJB Stevens agreed to permanently shelve its case, Shine Lawyers' Class Actions Practice Leader, Rebecca Jancauskas said. "Before the application was set for hearing we reached agreement with AJB Stevens to stay their proceedings. Those orders were made with the consent of both parties," Ms Jancauskas said. AJB Stevens director Steven Mousas it was in the best interests of the group members that the issue was resolved between the parties rather than expending unnecessary time and cost to have a court determine the issue. Clients who had signed retainer agreements with AJB Stevens would remain clients of the firm which would represent them when it came to making sure they received the correct amount of damages, he said. As well as Boston Scientific and the Johnson & Johnson case -- which has seen 11,500 women come forward to demand compensation -- Shine Lawyers has a third ongoing mesh class action against medical manufacturer American Medical Systems (AMS). In the case of Boston Scientific, the manufacturer is being accused by Shine Lawyers of acting negligently and selling implants that were not fit for purpose or of acceptable quality. Boston Scientific has said it stands by the quality and safety of its products and intends to vigorously defend itself against the claims alleged. Deborah Stanford is one woman who has joined the Shine Lawyers' Boston Scientific class action. Ms Stanford said she had endured nine years of suffering and constant pain after having an Obtryx sling implanted in 2012 to reposition her bladder, which was sitting in her birth canal. "If I knew how hard this was going to be, I never would have gone through it," Ms Stanford said. "I've had nine operations, including the surgery, and a week after I was implanted, I knew I was in trouble. "I was using about six or seven incontinence pads daily, until I had revision surgery in August of 2016. That was supposed to make it better, but the sling was tightened and now my bladder only works at 15 per cent capacity." She said the sling was extremely painful and made it feel like "a piece of sandpaper is being rubbed down there" when she urinates. Her husband is now her full-time carer as the pain makes it impossible for her to work. Ms Jancauskas said the complex nature of mesh legal cases meant it was difficult to pursue legal action for individuals in court, but class actions were giving women an opportunity for justice to be served. "Without the class action vehicle there would be tens of thousands of women who would be deprived of access to justice," she said. "I don't think you could talk to as many ladies as we've spoken to, and hear their stories, without being deeply affected on an emotional level by the horrific circumstances that many of them have endured." Boston Scientific has not released data on the number of its vaginal mesh products sold in Australia. It is therefore not known how many women could potentially take part in the lawsuit, however it is anticipated to be a smaller class action than the Johnson & Johnson case. Ms Jancauskas said Shine Lawyers was now planning to apply for permission from the court to issue subpoenas to public hospitals and private health funds for the contact details of women fitted with the implants to be released to a third party. The third party would then get in touch with the women to see if they would like to join the class action. Women who have suffered from complications after being implanted with Pinnacle, Uphold, Upsylon, Advantage, Obtryx, Lynx and or Solyx devices after 2004 in Australia can take part in the class action. [GN] BOTTLING GROUP: Faces Pujanes Employment Suit in Calif. State Ct. ----------------------------------------------------------------- A class action lawsuit has been filed against Bottling Group, LLC. The case is captioned as Wilcon Pujanes v. Bottling Group, LLC, Case No. 34-2021-00304322-CU-OE-GDS (Cal. Super., Sacramento Cty., July 15, 2021). The lawsuit arises from employment-related issues. The Defendants include Bottling Group, LLC and Does 1-20. Bottling Group LLC, doing business as Pepsi Beverages Company, manufactures, distributes, and sells non alcoholic beverages.[BN] The Plaintiff on behalf of all others similarly situated is represented by: Kent L. Bradbury, Esq. LAW OFFICE OF KENT BRADBURY 2999 Douglas Blvd Ste 180 Roseville, CA 95661-4219 Telephone: (916) 960-2080 E-mail: kb@castleemploymentlaw.com BOZZUTO MANAGEMENT: Carmean Appeals BIPA Suit Dismissal ------------------------------------------------------- Plaintiff Trevor Carmean filed an appeal from a court ruling entered in the lawsuit styled TREVOR CARMEAN, on behalf of himself and all others similarly situated, Plaintiff v. BOZZUTO MANAGEMENT COMPANY and CROWN ENERGY SERVICES, INC., d/b/a Able Engineering Services, Case No. 1:20-cv-05294, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As reported in the Class Action Reporter on June 28, 2021, this proposed biometric privacy class action against two Chicago property management companies was dismissed after an Illinois federal judge found the plaintiff's claims were preempted by a federal labor law. Judge Gary Feinerman dismissed the proposed class action without prejudice, because plaintiff Trevor Carmean didn't "grieve the dispute" using the process outlined in his collective bargaining agreement before bringing the Biometric Information Privacy Act lawsuit, the judge said in an opinion filed on June 16 in the U.S. District Court for the Northern District of Illinois. The Plaintiff is seeking a review of the said dismissal order entered by Judge Feinerman. The appellate case is captioned as Trevor Carmean v. Bozzuto Management Company, et al., Case No. 21-2295, in the US Court of Appeals for the Seventh Circuit, filed on July 14, 2021. The briefing schedule in the Appellate Case states that: -- Docketing Statement for Appellant Trevor Carmean was due July 20, 2021; -- Transcript information sheet was due July 28, 2021; and -- Appellant's brief due on or before August 23, 2021 for Trevor Carmean.[BN] Plaintiff-Appellant TREVOR CARMEAN, on behalf of himself and all others similarly situated, is represented by: Michael W. Drew, Esq. NEIGHBORHOOD LEGAL LLC 20 N. Clark Street Chicago, IL 60602 Telephone: (312) 967-7220 Defendants-Appellees BOZZUTO MANAGEMENT COMPANY and CROWN ENERGY SERVICES, INC., doing business as ABLE ENGINEERING SERVICES are represented by: Melissa A. Siebert, Esq. SHOOK, HARDY & BACON LLP 111 S. Wacker Drive Chicago, IL 60606-4418 Telephone: (312) 704-7700 - and - Jamie L. Filipovic, Esq. O'HAGAN MEYER, LLC One E. Wacker Drive Chicago, IL 60601-2001 Telephone: (312) 422-6100 CALI BAMBOO: Klaehn Appeals Product Liability Suit Dismissal ------------------------------------------------------------ Plaintiffs William Klaehn, et al., filed an appeal from a court ruling entered in the lawsuit styled as William Klaehn on behalf of himself and all others similarly situated, Plaintiff v. Cali Bamboo LLC a California Limited Liability Company, Does 1 through 200 inclusive, Defendants, Case No. 3:19-cv-01498-TWR-KSC, in the U.S. District Court for the Southern District of California, San Diego. The Plaintiffs allege that Cali communicated common and repeated themes in its advertising about the durability and quality of its bamboo flooring product, and about the Limited Residential Warranty. Cali published these representations on the Internet and at retail stores that sold the product. The Plaintiffs assert that Cali's representations were deceptive because Cali concealed or failed to disclose that the product is defective in that it is subject to premature cracking, splitting, warping, shrinking, buckling, separating, and scratching due to its inability to withstand common changes in humidity. According to Plaintiffs, because of this defect, the product is not durable and is worth less than its sale price. The Plaintiffs further contend that Cali knew of the defect but never disclosed it and intended to mislead consumers into believing its representations about the product. The Plaintiffs are seeking a review of the Court's Order dated June 14, 2021 and Judgment dated June 15, 2021, granting Defendant's motion to dismiss Plaintiffs' third amended class action complaint with prejudice. The appellate case is captioned as William Klaehn, et al. v. Cali Bamboo, LLC, et al., Case No. 21-55738, in the United States Court of Appeals for the Ninth Circuit, filed on July 14, 2021. The briefing schedule in the Appellate Case states that: -- Appellants Maria Cocchiarelli-Berger, Roland Gatchell, William Klaehn and Alan Mayse Mediation Questionnaire was due July 21, 2021; -- Transcript shall be ordered by August 12, 2021; -- Transcript is due on September 13, 2021; -- Appellants Maria Cocchiarelli-Berger, Roland Gatchell, William Klaehn and Alan Mayse opening brief is due on October 21, 2021; -- Appellees Cali Bamboo, LLC and Does answering brief is due on November 22, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants WILLIAM KLAEHN, MARIA COCCHIARELLI-BERGER, ROLAND GATCHELL, and ALAN MAYSE, on behalf of himself and all others similarly situated, are represented by: Charles LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Avenue NW, Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 - and - Michael Ram, Esq. MORGAN & MORGAN 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 358-6913 E-mail: mram@robinskaplan.com - and - Brendan S. Thompson, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street, NE Washington, DC 20002 Telephone: (202) 789-3960 Defendant-Appellee CALI BAMBOO, LLC, a California Limited Liability Company, is represented by: Kelly Vincent O'Donnell, Esq. JONES DAY 4655 Executive Drive, Suite 1500 San Diego, CA 92121-3134 Telephone: (858) 314-1200 E-mail: kodonnell@jonesday.com - and - Philip M. Oliss, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Telephone: (216) 586-7164 E-mail: poliss@jonesday.com CALIBER HOME: $5-Mil. Class Settlement in Phillips Wins Initial OK ------------------------------------------------------------------ The U.S. District Court for the District of Minnesota grants the Plaintiffs' motion for preliminary approval of $5 million class action settlement in the lawsuit captioned Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory Benjamin, Tyrus Davis, and Christopher Bingham, on behalf of themselves and all others similarly situated, Plaintiffs v. Caliber Home Loans, Inc., Defendant, Case No. 19-cv-2711 (WMW/LIB) (D. Minn.). Plaintiffs Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory Benjamin, Tyrus Davis and Christopher Bingham (Settlement Class Representatives), on behalf of themselves and the proposed Settlement Class, seek preliminary approval of a proposed settlement of claims against Defendant Caliber Home Loans, Inc. The Plaintiffs commenced separate actions in Minnesota, North Carolina, and Texas, respectively. Plaintiff Phillips and Plaintiff Tourville-Phillips initiated a class action lawsuit in Lake County District Court (Sixth Judicial District) in Minnesota, which Caliber removed to this Court on Oct. 14, 2019, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment (Phillips v. Caliber Home Loans, Inc., No. 0:19-cv-02711) (the "Phillips Lawsuit"). Plaintiff Barnett and Plaintiff Benjamin initiated a class action lawsuit in the United States District Court for the Southern District of Texas, alleging breach of contract and violations of the Texas Debt Collection Act (TDCA) (Barnett v. Caliber Home Loans, Inc., No. 2:19-cv-309) (the "Barnett Lawsuit"). Plaintiff Davis and Plaintiff Bingham initiated a class action lawsuit in the United States District Court for the Middle District of North Carolina (Davis v. Caliber Home Loans, Inc., No. 1:20-cv-00338). Plaintiff Davis alleged that Caliber violated the North Carolina Debt Collection Act, the North Carolina Mortgage Debt Collection and Servicing Act, and the North Carolina Unfair and Deceptive Trade Practices Act. Plaintiff Bingham alleged that Caliber violated the Maryland Consumer Debt Collection Act. Although the three putative class actions were commenced separately, each is based on one common factual allegation: Caliber charged and collected millions of dollars in Pay-to-Pay Fees from homeowners, in addition to their regular mortgage payments. The Plaintiffs allege that this practice violated the laws of Minnesota, North Carolina, and Texas, and breached their mortgage agreements. Caliber denies the allegations in the complaints and denies any wrongdoing. On Dec. 11, 2019, Caliber moved to dismiss the Phillips Lawsuit. The Court denied Caliber's motion to dismiss the Phillips' breach-of-contract claim and unjust enrichment claim but granted Caliber's motion to dismiss the Phillips' claim for breach of the implied covenant of good faith and fair dealing. Thereafter, the Phillips Plaintiffs filed a Second Amended Complaint adding a claim that Caliber's conduct also violated the Fair Debt Collections Practices Act. The Court subsequently stayed the proceedings in the Phillips Lawsuit pending mediation. On Dec. 9, 2019, Caliber moved to dismiss the Barnett Lawsuit. The district court denied Caliber's motion to dismiss the TDCA claim but granted Caliber's motion to dismiss the breach-of-contract claim. The district court subsequently stayed the proceedings in the Barnett Lawsuit pending mediation. On May 29, 2020, Caliber moved to dismiss the Davis Lawsuit. While Caliber's motion to dismiss the Davis Lawsuit remained pending, the district court stayed the proceedings in the Davis Lawsuit pending mediation. On March 31, 2021, the parties participated in a full day mediation session conducted by Jill Sperber. With the assistance of the mediator, the parties reached mutually agreeable terms of a global settlement. Notices of settlement subsequently were filed in the Phillips Lawsuit, the Barnett Lawsuit, and the Davis Lawsuit ("Related Cases"). Each notice provided that a global settlement had been reached and that Plaintiffs Davis, Bingham, Barnett, and Benjamin would be added as named plaintiffs to the Phillips Lawsuit. On April 16, 2021, the Phillips Plaintiffs filed a Third Amended Complaint on April 16, 2021, adding Plaintiffs Davis, Bingham, Barnett, and Benjamin to the Phillips Lawsuit. On May 14, 2021, the parties executed a settlement agreement (Settlement Agreement), which memorializes the terms and conditions of the proposed Settlement and embodies all relevant exhibits thereto. Settlement Terms The Settlement Agreement contemplates certification of the following Settlement Class for settlement purposes only: All persons who (1) were borrowers on residential mortgage loans on properties in the United States whose loans were serviced by Caliber, and (2) paid a fee to Caliber for making a loan payment by telephone, [interactive voice response (IVR)], or the internet, from January 1, 2013, to January 21, 2020. The Settlement Agreement, if approved, will create a $5 million non-reversionary common fund and will resolve the claims of the Plaintiffs and the Settlement Class Members deriving from Caliber's practice of charging additional processing fees when borrowers paid their monthly mortgage by telephone, interactive voice response ("IVR"), or the internet ("Pay-to-Pay Fees"). The common fund, which represents approximately 29.38 percent of damages, will provide cash payments to Settlement Class Members, as well as Administrative Costs to provide notice and administer the settlement, and any Fee and Expense Award and Service Awards that the Court may approve. Settlement Class Members need not submit a claim form to receive monetary compensation pro rata according to the amount of Pay-to-Pay Fees they were charged. In addition to the common fund, the Settlement includes important and valuable injunctive relief. As of Jan. 21, 2020, Caliber has ceased charging or collecting Pay-to-Pay Fees to any Settlement Class Member and to any borrower in the country. As a result of this Settlement, Caliber agrees to refrain from charging or collecting Pay-to-Pay Fees from borrowers for a period of at least two years after entry of the Final Approval Order. The proposed Settlement Administrator is Kroll Business Services, a leading class action administration firm in the United States. In exchange for the benefits conferred by the Settlement, all Settlement Class Members will be deemed to have released the Released Entities from all claims that were or could have been asserted by the Class Representatives or Settlement Class Members, through the date of this Order, relating to the charging, collection, or attempted collection of Pay-to-Pay Fees. The parties' proposed Notice Plan consists of direct notice in the form of Email and Postcard Notice, as well as a Settlement Website where Settlement Class Members may view and download a Long Form Notice. Settlement Class Members also may request that the Settlement Administrator mail or email them a copy of the Long Form Notice. The Class Notice will advise Settlement Class Members of their right to opt out of the Settlement or to object to the Settlement and/or to Class Counsel's application for attorneys' fees, costs, and expenses and/or Service Award to the Class Representative, and of the associated deadlines to opt out or object. Settlement Class Members who choose to opt out must submit a written request for exclusion. Any request for exclusion must be postmarked on or before the "Response Deadline"--105 days after entry of the Preliminary Approval Order. Settlement Class Members, who wish to object to the Settlement, must mail a written objection, postmarked on or before the Response Deadline, to the Clerk of the Court or by filing it in person before the Response Deadline. Any Settlement Class Member, who has not submitted a timely request for exclusion, may appear at the Final Fairness Hearing either in person or through an attorney. No person, who has opted out of the Settlement, may object to it. The Settlement Agreement contemplates Class Counsel petitioning the Court for attorneys' fees, as well as documented, customary costs incurred by Class Counsel. The Settlement Agreement provides that Class Counsel may seek attorneys' fees in an amount not to exceed one third of the Gross Settlement Fund (33.33 percent) as well as reasonable expenses incurred in the litigation. Any approved Fee and Expense Award will be paid from the Gross Settlement Fund prior to distribution to the Settlement Class Members. Class Counsel also may petition the Court for up to $5,000 each for Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory Benjamin, Tyrus Davis, and Christopher Bingham as Service Awards as compensation for their time and effort in the Action. Any approved awards will be deduced from the Gross Settlement Fund prior to distribution to the Settlement Class Members. Plaintiffs will submit declarations detailing their participation in the Action along with the Fee and Service Award Application. Neither final approval, nor the size of the Common Fund, are contingent on approval of the full amount of requested Fee and Expense Award or Service Awards. Order Based on the Court's analysis and all the files, records and proceedings herein, it is ordered: 1. Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement and Certification of the Settlement Class is granted; 2. The proposed Settlement Class is certified for settlement purposes only pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure; 3. The proposed Settlement is preliminarily approved as being fair, reasonable and adequate pursuant to Rule 23(e); 4. Plaintiffs Stephen Phillips, Mary Tourville-Phillips, Sandi Barnett, Gregory Benjamin, Tyrus Davis, and Christopher Bingham are appointed as Class Representatives; 5. James L. Kauffman, Randy Pulliam, Hassan A. Zavareei and Kristen G. Simplicio are appointed as Class Counsel; 6. Caliber is ordered to provide the Settlement Class Member List, including email addresses when available, to the Settlement Administrator, who is ordered to follow the confidentiality provisions set forth in the Settlement Agreement with respect to such information; and 7. The proposed Notice Plan complies with the requirements of Rule 23 and due process, and Class Notice is to be sent to the Settlement Class Members as set forth in the Settlement Agreement and pursuant to the deadlines. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/yp87jcrz from Leagle.com. CANADA GOOSE: Wins Bid to Dismiss Cheng's First Amended Complaint ----------------------------------------------------------------- The U.S. District Court for the Southern District of New York grants the Defendants' motion to dismiss the lawsuit entitled LI HONG CHENG and NATIONAL ELEVATOR INDUSTRY PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. CANADA GOOSE HOLDINGS INC., et al., Defendants, Case No. 19-CV-8204 (VSB) (S.D.N.Y.). Before the Court is the Defendants' motion to dismiss the Plaintiff's Consolidated First Amended Complaint. Because the Plaintiff fails to plausibly allege false statements or omissions, a strong inference of scienter, and control person liability, the Defendants' motion to dismiss the Plaintiff's Amended Complaint is granted. Lead Plaintiff National Elevator Industry Pension Fund ("Plaintiff" or "NEIPF") brings this action against Defendants Canada Goose Holdings Inc. ("Canada Goose" or the "Company"); Dani Reiss, Chairman, CEO, and President of Canada Goose; Jonathan Sinclair, CFO and Executive VP of Canada Goose; and Bain Capital, LP and its affiliates ("Bain Defendants," asserting violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and, and Rule 10b-5 promulgated thereunder. Background Canada Goose is a clothing company known for its cold-weather gear that is listed and traded on the New York Stock Exchange. During the entire class period, the Bain Defendants owned a majority of Canada Goose's voting shares. Canada Goose completed its initial public offering ("IPO") on March 21, 2017. The Company reported annual growth of 39% for fiscal year 2017 and 46% for fiscal year 2018. In June 2018, a couple months before the class period began, Evercore wrote an analyst report calling Canada Goose one of the top global growth brand stocks and CIBC reported that Canada Goose had vastly exceeded expectations since the IPO. Before the class period began, the Company's revenue growth exceeded its inventory growth. In the fourth quarter of fiscal year 2018, Canada Goose sped up its inventory growth; on Aug. 9, 2018, the beginning of the class period, the Company's inventory growth was at 35.3% and rapidly increasing. Canada Goose reports its results in two segments that are aligned with its sales channels: (1) wholesale, in which Canada Goose sells to retail partners and distributors at thousands of points of distribution; and (2) direct-to-consumer ("DTC"), which consists of e-commerce sites and retail stores. Canada Goose typically realizes a significant portion of its annual wholesale revenue during the second and third quarters of a fiscal year, while it typically realizes a significant portion of its annual DTC revenue in the third and fourth quarters of a fiscal year. Canada Goose's DTC channel is particularly important to its growth strategy, in large part because Canada Goose has higher margins on the products it sells through the DTC channel than products it sells in the wholesale channel. In fiscal year 2019, more consumers than usual in the DTC channel began to purchase heavyweight parkas earlier than usual, suggesting that the DTC channel would generate relatively less revenue than usual in its third and fourth quarters in fiscal year 2019. On Aug. 9, 2018, Canada Goose filed its Form 6-K with the Securities and Exchange Commission for the first fiscal quarter for 2019. The Company reported $44.7 million in total revenue, an increase in 58.5% from the previous year. In a press release, Canada Goose stated that it expected an annual revenue growth of at least 20% in fiscal year 2019. Canada Goose also experienced 35.3% in inventory growth, lower than its revenue growth. On May 29, 2019, Canada Goose disclosed that, for the fourth fiscal quarter of 2019, revenue grew by 25% and DTC revenue increased by 29.1%, below the analysts' estimates of 40% DTC revenue growth. In a press release, the Company disclosed that it now expected annual revenue growth of at least 20% for fiscal year 2020, about half of what the Company had reported in the previous three years. On a conference call with analysts and investors, Reiss stated that the company had shifted its approach from "building demand ahead of supply" to "building inventory ahead of demand," and that "this reflects the change in our model of building demand ahead of supply." Sinclair acknowledged that DTC's lower-than-expected revenue growth was due to "earlier consumer purchasing of full winter product versus the previous year." Canada Goose's stock fell 31% by the end of the day. Procedural History On Sept. 3, 2019, Plaintiff Li Hong Cheng brought this securities fraud class action lawsuit. On that same day, Pomerantz LLP published a notice of the complaint on Globe Newswire in accordance with the Private Securities Reform Act of 1995 ("PSLRA"). The notice detailed the claims in the complaint and informed class members that they had until Nov. 4, 2019, to file to seek appointment as lead plaintiff. On Nov. 4, 2019, three class members filed motions seeking to be appointed lead plaintiff and for approval of lead counsel. On Dec. 5, 2019, the Court appointed NEIPF as the lead plaintiff in the case and its selection of Robbins Geller Rudman & Dowd LLP as class counsel. On Feb. 18, 2020, NEIPF filed an amended class action complaint. On May 12, 2020, the Defendants filed a motion to dismiss the Amended Complaint, accompanied by a memorandum of law, a declaration, and several exhibits. The Plaintiff filed its memorandum of law in opposition on July 10, 2020. The motion became fully briefed when the Defendants filed their reply memorandum of law on Aug. 14, 2020. Discussion The parties agree that there are two categories of statements or omissions at issue in this litigation: (1) those related to the phenomenon of consumers purchasing the Company's heavyweight parkas in the DTC channel earlier than expected--Timing Shifts--and (2) those related to the Company's inventory level and its relationship to consumer demand and revenue growth--Inventory and Future Demand. a. Timing Shifts The Plaintiff alleges that the Defendants failed to disclose that customers in Canada Goose's DTC channel were purchasing higher-margin, heavy weight parkas earlier in the year, such that disproportionately fewer people would be purchasing them in the third and fourth fiscal quarters, when Canada Goose typically recognizes a significant portion of its annual DTC revenue. Such a failure to disclose was highly significant, because Canada Goose's DTC segment was critically important to Canada Goose's stated growth strategy and its financial results, in large part because the Company generates higher margins on the products it sells directly through its DTC channel than it does in its wholesale channel. In this way, the Plaintiff's allegations with regard to the DTC channel concern omissions or failure to disclose information, rather than misstatements, District Judge Vernon S. Broderick notes. Judge Broderick finds that the Defendants on several occasions actually disclosed the information at issue, a fact the Plaintiff concedes. At the very beginning of the class period--on Aug. 9, 2018, on the conference call with investors and analysts following the announcement of the results from the first fiscal quarter of 2019--Reiss stated that on the product side people are buying their parkas early. The Plaintiff also acknowledges that, after the announcement of Canada Goose's results for the third fiscal quarter, the Defendants disclosed that the Company was experiencing significantly more purchasing occurring earlier in both the wholesale and DTC channels, and that investors should expect a naturally lower rate of speed in both channels through the remainder of the fiscal year. To the extent that the Plaintiff is arguing that the Defendants should have disclosed more granular, empirical, or dire information about the precise impact the timing shifts would have on the third and fourth quarters--an argument the Plaintiff does not explicitly make--this argument must fail because the Plaintiff's Amended Complaint does not even allege that the Defendants possessed or had access to any such information, Judge Broderick opines, citing Constr. Laborers Pension Tr. v. CBS Corp., 433 F.Supp.3d 515, 536 (S.D.N.Y. 2020). Moreover, even if such information existed, the Plaintiff would need to demonstrate that the information was material and that the Defendants were obligated to disclose such information. Absent allegations that the Defendants possessed but withheld more detailed or more alarming information related to these timing shifts sufficient to make their prior disclosures legally deficient, the Plaintiff cannot plausibly allege that the Defendants withheld material information about these timing shifts, Judge Broderick says. As such, he finds that the Defendants properly disclosed the information at issue here. b. Inventory and Future Demand The Plaintiff further argues that a second category of statements are actionable: that the "Defendants repeatedly, yet misleadingly, conveyed to investors that the Company was building customer demand ahead of supply," which "created the misleading impression that Canada Goose's massive spikes in inventory were justified by increasing demand and accelerated growth consistent with historical trends." As a preliminary matter, the Defendants argue that the statements regarding inventory levels and future demand are non-actionable for three reasons. All of these arguments fail, Judge Broderick holds. First, the Defendants argue that these are statements of corporate optimism or puffery. The challenged statements at issue are not merely generic corporate expressions of optimism; they conveyed material information about the Defendants' then-current inventory levels and demand and the Defendants' reasons, at that time, for building inventory, Judge Broderick notes. Hence, the Plaintiff has plausibly pled that this connection between Canada Goose's inventory growth and demand--namely, whether or not the growth in Canada Goose's inventory was driven by then-existing demand--was highly relevant to investors as an indication of the company's financial health and potential for growth. Second, the Defendants argue that these statements are non-actionable forward-looking statements protected under the PLSRA's safe harbor. The challenged statements at issue here are not forward-looking because they are not "projections" or "statement[s] of future economic performance"--rather, they concern the Defendants' then-current inventory and demand levels and their then-existing business model, Judge Broderick opines. Even if a certain portion of the statements could be viewed as forward-looking, the critical portions of the statements at issue, phrased in the present tense, are not projections, he adds. Third, the Defendants argue that the "bespeaks caution" doctrine applies because at issue are forward-looking statements that were accompanied by meaningful cautionary language. Because the bespeaks-caution doctrine applies only to statements that are forward-looking, this argument similarly fails, Judge Broderick holds. Nevertheless, Judge Broderick finds, the Plaintiff's allegations regarding the Defendants' inventory levels and future demand fail for other reasons. Crucially, the Plaintiff has failed to identify any misstatements or omissions of material fact which would support its claim, the Judge opines, citing In re IBM Corp. Sec. Litig., 163 F.3d 102, 109 (2d Cir. 1998). The Plaintiff alleges that Defendants repeatedly, yet misleadingly, conveyed to investors that the Company was building customer demand ahead of supply, giving investors a misleading impression of the Company's existing demand and, thus, its financial health. This allegation is materially flawed, because there are no pleaded facts that plausibly allege that the statements at issue--that the Defendants were trying to build demand ahead of supply--were misleading or false when made, Judge Broderick opines. Absent specific, non-conclusory allegations that the Defendants "knew long before" but declined to disclose these revenue projections, the Plaintiff falls short of a plausible claim, particularly given that these allegations are forward-looking and, thus, would have to satisfy the high bar mandated under the PSLRA safe harbor, Judge Broderick points out. Therefore, Judge Broderick concludes that the Plaintiff has not adequately pleaded a material misstatement or omission, which alone warrants dismissal of the claim for securities fraud under Section 10(b) and Rule 10b-5. Scienter The Plaintiff makes four main arguments in an attempt to satisfy its burden to establish scienter. First, the Plaintiff notes the Individual Defendants' high-ranking positions are probative in large part because Reiss and Sinclair had responsibility and oversight over the very topics about which the Amended Complaint] alleges the Defendants misled investors. Second, the Plaintiff argues that the Defendants were particularly motivated because of how important it was to Canada Goose to have a strong DTC channel and be perceived as a hyper-growth company. Judge Broderick holds that this argument is unpersuasive, and expressly prohibited under the case law. As noted, the Plaintiff cannot proceed based on motives possessed by virtually all corporate insiders, such as the desire to sustain the appearance of corporate profitability or to maintain a high corporate credit rating. Third, the Plaintiff points to the more-than 9 million shares that Reiss and the Bain Capital Defendants sold for more than $570 million in November 2018. Judge Broderick finds these stock sales are marginally helpful to the Plaintiff's scienter argument. The Defendants' sales were made roughly six months before the revelation of the alleged falsity, which attenuates any inference of scienter in the Plaintiff's favor, Judge Broderick points out. Thus, the Judge finds that these stock sales are not entitled significant weight in assessing scienter. Fourth, the Plaintiff argues that the fact that there was merely a three-month gap between the time when the Defendants stated they were building demand ahead of supply and when the Defendants stated they were building inventory ahead of demand is probative of scienter. This argument merits little weight, because the Plaintiff fails to provide any factual allegations that the Defendants did not adjust their model in the intervening three months, Judge Broderick explains. Changing one's mind or methodology without more cannot be the basis for finding scienter. Indeed, businesses should be encouraged to innovate and change course when necessary in the face of shifting market conditions, he adds. Taken together, Judge Broderick finds that the factual allegations here do not give rise to a strong inference of scienter. He points out that the Amended Complaint does not include anything beyond conclusory allegations indicating that the Defendants were aware of adverse information at the time they spoke. Instead, the Plaintiff is left with a hodgepodge of circumstantial evidence--some of which is at best marginally probative, some of which is not--that fails to indicate that the Defendants had any specific contradictory information in their possession when they made their statements during the class period. Because the Amended Complaint fails to adequately plead a primary violation under Section 10(b), there is no basis for a primary violation upon which any Section 20(a) claim might be predicated, Judge Broderick notes. Consequently, the Defendants' motion to dismiss the Plaintiff's claim brought pursuant to Section 20(a) against the individual and Bain Defendants is granted. Conclusion For these reasons, the Defendants' motion to dismiss is granted. The Clerk's office is directed to terminate the open motion at Document 60 and close this case. A full-text copy of the Court's Opinion & Order dated July 19, 2021, is available at https://tinyurl.com/ykdxtcvy from Leagle.com. Matthew I. Alpert -- malpert@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, in Melville, New York, Counsel for the Plaintiff. Robert G. Jones -- Robert.Jones@ropesgray.com -- Ropes & Gray LLP, in Boston, Massachusetts; Martin J. Crisp -- Martin.Crisp@ropesgray.com -- Ryan M. Royce -- Ryan.Royce@ropesgray.com -- Ropes & Gray LLP, in New York City, Counsel for the Defendants. CANTON, OH: Bid to Certify Inmates Class in Kelley v. Farmer Denied ------------------------------------------------------------------- The U.S. District Court for the Northern District of Ohio, Eastern Division, denied the Plaintiffs' Motion for Class Certification in the lawsuit styled WILLIAM L. KELLEY, et al., Plaintiffs v. KRISTIN FARMER, et al., Defendants, Case No. 5:21-cv-649 (N.D. Ohio). Background Pro se Plaintiffs William L. Kelley and John Simmons, Ohio inmates incarcerated in the Marion Correctional Institution ("MCI"), have filed a "class action" civil rights complaint pursuant to 42 U.S.C. Sections 1983 and 1985 against multiple defendants. They sue: the City of Canton; the City of Akron; Stark and Summit County Court of Common Pleas Judges Kristin Farmer and Alison Breaux; Ohio Supreme Court Justice Maureen O'Connor; the Ohio Department of Rehabilitation and Correction ("ODRC"); and MCI employees Lieutenant Harr, Librarian Terry King, and Institutional Inspector Plank. Although the Plaintiffs' complaint is unclear and difficult to parse, the gravamen of their class complaint is that their constitutional rights were violated because they were denied re-sentencing hearings they sought in their state criminal cases based on Ohio's res judicata law, District Judge J. Philip Calabrese says. They state: "The Class-based Plaintiffs have diligently followed the States Policies and Procedures" in seeking resentencing; however, the "named defendants have been arbitrarily and distinctively using its Res judicata (State rule of law) to deny the Plaintiffs the relief they have afforded similarly situated others." The Plaintiffs' complaint contains three counts. In Count One, the Plaintiffs allege that "the numerous named defendants Arbitrary and Distinctive use of its Res Judicata Rule to deny the Plaintiffs the relief it has afforded hundreds of similarly situated others are a violation of the Plaintiffs First (Redress of grievances); and Fourteenth(Procedural Due Process and Equal Protection) Rights guaranteed to them VIA the United States Constitution." In Count Two, Plaintiff Kelley alleges that the Defendants engaged in an unlawful conspiracy against him in his Stark County criminal case. He alleges the "named defendants, acting with racial discriminatory animus, and in furtherance of a previous 42 U.S.C. 1985(2) violation, have conspired for the purpose of impeding, hindering, obstructing, or defeating the due course of justice" in his criminal case "with intent to deny him the equal protection of the laws." In Count Three, the Plaintiffs allege that Ohio Supreme Court Justice Maureen O'Connor violated their constitutional rights by "restricting their access to the Ohio Supreme Court" in their state criminal cases. For relief, the Plaintiffs seek damages and declaratory and injunctive relief in the form of re-sentencing hearings in their state criminal cases. With their complaint, the Plaintiffs have filed a Motion for Class Certification pursuant to Fed. R. Civ. P. 23, seeking certification of a class of "past, present, and future inmates who were unconstitutionally denied re-sentencing hearings due to state Courts applying its Res judicata law." Plaintiff Kelley has also filed a motion to proceed in forma pauperis, which has been granted by separate order. Discussion Upon review, the Court finds that the Plaintiffs' complaint must be dismissed in accordance with Sections 1915A and 1915(e)(2)(B) for multiple reasons. First, the complaint is subject to dismissal because it fails to meet basic pleading requirements by indicating how the Plaintiffs contend each of the Individual Defendants was personally involved in the rights violations they allege. Second, Judge Calabrese opines that the complaint fails to allege plausible claims against the City of Akron and City of Canton. There is no respondeat superior liability for constitutional rights violations under Section 1983, and the Plaintiffs have not alleged facts in their complaint sufficient to demonstrate that an official policy or custom of either City caused a violation of their constitutional rights. Third, the Ohio judges that the Plaintiffs sue (Judges Farmer and Breaux and Justice O'Connor) are entitled to absolute immunity from the Plaintiffs' suit arising from their rulings and actions taken in their judicial capacity in the Plaintiffs' state-court criminal cases, Judge Calabrese opines, citing Cooper v. Rapp, 702 F. App'x 328 (6th Cir. 2017). Fourth, the ODRC is not an entity subject to suit under Section 1983, Judge Calabrese holds. Fifth, even assuming the Plaintiffs' complaint were sufficient to allege a constitutional claim or claims against some defendant in the case, all of the claims or "counts" they assert n their complaint are barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a state prisoner has no cognizable claim for relief under Section 1983 if a ruling on the claim would render a state conviction or sentence invalid unless and until the prisoner shows that the conviction or sentence has already "been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Here, Heck bars all of the Plaintiff's alleged claims because a ruling in the Plaintiffs' favor on each of the claims would necessarily imply the invalidity of their state criminal sentences or convictions, and the Plaintiffs have not alleged or shown that their convictions or sentences have been invalidated or called into question in any of the ways articulated in Heck, Judge Calabrese points out. Therefore, the Plaintiffs' complaint on its face fails to allege a cognizable federal civil rights claim upon which they may be granted relief under either Section 1983 or Section 1985. Finally, the Plaintiffs are not entitled to pursue a class action lawsuit on behalf of other inmates, Judge Calabrese rules. The Plaintiffs are proceeding without an attorney and have not alleged a cognizable claim for relief; therefore, there is no valid basis to authorize a class action here, the Judge concludes. Conclusion For all of these reasons, the Plaintiffs' Motion for Class Certification is denied and the action is dismissed in accordance with 28 U.S.C. Sections 1915(e)(2)(B) and 1915A. The Court further certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. A full-text copy of the Court's Memorandum of Opinion and Order dated July 19, 2021, is available at https://tinyurl.com/9m8mj5pw from Leagle.com. CARNIVAL CORPORATION: Class Cert. Related Bids Due Oct. 21 ---------------------------------------------------------- In the class action lawsuit captioned as BRIAN GRIMMS and BRENT REIL, v. CARNIVAL CORPORATION; CARNIVAL PLC; and HOLLAND AMERICA LINE N.V. d/b/a HOLLAND AMERICA LINE N.V. LLC, Case No. 2:21-cv-00311-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered a minute order setting trial and related dates: -- Discovery on class certification Aug. 23, 2021 issues to be completed by: -- Motions related to class Oct. 21, 2021 certification due by: -- Joinder of Parties due by: Dec. 16, 2021 -- Amended Pleadings due by: Dec. 16, 2021 -- Expert Witness Disclosure/Reports Jan. 4, 2022 under FRCP 26(a)(2) due by: -- Discovery Motions due by: Jan. 20, 2022 -- All remaining discovery to be Feb. 17, 2022 completed: A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3zSyN7D at no extra charge.[CC] CARRIZO OIL: Seeks August 6 Response Extension to Class Cert Notice ------------------------------------------------------------------- In the class action lawsuit captioned as DON CHISUM, Individually and For Others Similarly Situated, v. CARRIZO OIL & GAS, INC., CALLON PETROLEUM COMPANY, and CALLON PETROLEUM OPERATING COMPANY, Case No. 4:20-cv-00051-DC-DF (W.D. Tex.), the Defendants ask the Court to enter an order extending the time for them to respond to Plaintiff's Renewed Motion for court-authorized Notice until August 6, 2021. The Plaintiff filed his Renewed Motion for court-authorized Notice on July 2, 2021. Counsel for both parties conferred on July 20 and 21, 2021, via email, and Plaintiffs' counsel confirmed via email on July 21, 2021, that Plaintiff does not oppose and agreed to the Defendants' 14-day extension request. The Plaintiff agreed with the stipulation that the Parties agree to tolling of the statute of limitations for putative class members not-yet-joined, for the same number of days Defendants require between July 23, 2021, and August 6, 2021, to file their Response to Plaintiff's Renewed Motion for court-authorized Notice. Carrizo Oil, an independent energy company, engages in the exploration, development, and production of oil and gas in the United States. A copy of the Defendants' motion dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/2WvEFFv at no extra charge.[CC] The Plaintiff is represented by: Michael A. Josephson Andrew W. Dunlap Richard M. Schreiber Cory Canon JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, Texas 77046 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com ccanon@mmybackwages.com - and - Richard J. (Rex) Burch BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 E-mail: rburch@brucknerburch.com The Defendants are represented by: David B. Jordan, Esq. Paige A. Cantrell, Esq. Michael Wilson, Esq. LITTLER MENDELSON, P.C. 1301 McKinney Street, Suite 1900 Houston, TX 77010 Telephone: (713) 951-9400 Facsimile: (713) 951-9212 E-mail: djordan@littler.com pcantrell@littler.com miwilson@littler.com CENTERSTATE BANK: Bid to Modify Class Cert Related Deadlines OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as PRECISION ROOFING OF N. FLORIDA INC., individually and on behalf of all others similarly situated, v. CENTERSTATE BANK, Case No. 3:20-cv-00352-BJD-JRK (M.D. Fla.), the Hon. Judge James R. Klindt entered an order that: 1. The Joint Motion to Modify Class Certification-Related Deadlines, filed July 16, 2021, is granted. 2. The Plaintiff shall have up to and including September 3, 2021 to serve its expert reports for class certification. 3. The Plaintiff shall have up to and including September 3, 2021 to file a motion for class certification. 4. The Defendant shall have up to and including October 4, 2021 to serve its expert reports for class certification. 5. All other terms and deadlines set forth in the Amended Case Management and Scheduling Order (Doc. No. 32), entered February 11, 2021, shall remain intact. CenterState is a multi bank holding company. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3zJYIhW at no extra charge.[CC] CENTERSTATE BANK: Court Modifies Class Cert. Related Deadlines -------------------------------------------------------------- In the class action lawsuit captioned as Grant v. Centerstate Bank, Case No. 8:20-cv-01920 (M.D. Fla.), the Hon. Judge Mary S. Scriven entered an endorsed order granting the parties' joint amended motion to modify class certification-related deadlines. The deadlines for disclosure of expert reports for Plaintiff and Defendants are extended to September 3, 2021 and October 4, 2021, respectively. Moreover, Plaintiff shall have up to and including September 3, 2021 to file a motion for class certification. The nature of suit states Diversity-Breach of Contract. CenterState, a multi bank holding company, provides consumer and commercial banking services. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at at no extra charge.[CC] CENTRAL PAYMENT: Files Writ of Certiorari in Custom Hair Suit ------------------------------------------------------------- Defendant CENTRAL PAYMENT CO., LLC filed with the Supreme Court of United States a petition for a writ of certiorari in the matter styled CENTRAL PAYMENT CO., LLC, Petitioner, v. CUSTOM HAIR DESIGNS BY SANDY, LLC, on behalf of themselves and all others similarly situated; SKIP'S PRECISION WELDING, LLC, on behalf of themselves and all others similarly situated, Respondents, Case No. 21-51. Response is due on August 13, 2021. CENTRAL PAYMENT CO., LLC petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eight Circuit in the case titled Custom Hair Designs by Sandy et al., Respondents v. Central Payment Co., LLC, Petitioner, Case No. 20-1677. The Court of Appeals affirmed class certification in this case even though each of the more than 160,000 class members signed a different, bespoke contract with defendant Central Payment Co., LLC. The question presented is: Whether a class may be certified under Rule 23 of the Federal Rules of Civil Procedure when the class claims turn on materially different contractual rights and obligations between the defendant and each class member? As reported in the Class Action Reporter on Jan. 7, 2021, Custom Hair brought a class action alleging breach of contract, state-law fraudulent concealment, and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The class members are over 160,000 small retailers using Central Payment Co., LLC ("CPAY") for credit card processing. CPAY does not employ its (loosely affiliated) agents. They use form contracts with blanks for the pricing terms, which are subject to negotiation. Individual retailers can select from two basic pricing schemes--"pass-through" or "tiered" (by class of transaction). Both focus on the price-per-transaction that credit card issuers impose. Changes to the price-per-transaction must be approved by the issuing banks under the terms of CPAY's form contract. The Plaintiffs allege CPAY misrepresented a number of fees, added fees with no value to retailers, and inflated fees without prior approval from issuing banks. They stress that the FTC previously barred, for fraud, CPAY's founders from selling auction guides. CPAY moved for summary judgment. In a single order, the district court denied summary judgment and certified the class. CPAY appeals. It argues the district court failed to adequately explain its certification decision. The Eighth Circuit holds that the district court made specific findings of fact. Contrary to CPAY's assertion, the district court's decision is specific enough. CPAY also ignores that the district court issued an order that included its denial of summary judgment. Because the court addressed the merits in its summary-judgment analysis, and thus mentioned them only briefly in the class certification section, the court need not repeat its view of the record in each section of an order. The district court engaged in a sufficiently rigorous analysis. CPAY also argues that the district court erred in determining that common questions predominate. The Appellate Court holds that Common questions and common answers predominate in the case. First, all claims deal with either a common scheme of fraud or a term common to all contracts with CPAY. Second, any pricing differences would not affect liability, only damages. Third, that some contracts authorize a "PCI Noncompliance Fee" or a "TSSNF Fee" does not defeat predominance. Fourth, that changes in bank rates cause tier shifts does not defeat predominance. The Court also finds that the requirements for common law fraud are not read into RICO. Thus, the Plaintiffs are correct that overpayments from a pattern of systemic mail fraud in CPAY's billing would satisfy RICO's causation requirements and be common among all plaintiffs. Also, the statute of limitations and Nebraska reliance law do not defeat predominance. CPAY then argues that the named Plaintiffs' claims are not typical of the class members. The named Plaintiffs' claims are typical of the class. CPAY ignores the similarities of the core claims both named Plaintiffs make--the general scheme of deceptive billing, violation of the bank pre-authorization contract requirement, and fraudulent concealment. Since the Plaintiffs' claims resemble the theories applicable to all class members, minor factual variations such as differences in rates do not defeat typicality. CPAY also argues that the named Plaintiffs do not represent class interests adequately. Identifying and not including the class members does not create an intraclass conflict, because the claims of non-class-members are not litigated. The claims CPAY discusses would thus not be precluded. Hence, the district court did not err in determining the named Plaintiffs adequately represented class interests. Finally, CPAY contends that the class does not satisfy superiority. A class action is the superior mechanism to try the case. The Plaintiffs' individual claims are for tens or hundreds of dollars. Absent a class action, no Plaintiff is likely to pursue their claim individually. Therefore, the Eighth Circuit holds that the district court did not abuse its discretion in finding a class action superior.[BN] Defendant-Appellee-Petitioner Central Payment Co., LLC is represented by: Ashley C. Parrish, Esq. KING & SPALDING 1700 Pensylvania Ave., NW Washington, DC 20006 Telephone: (202) 737-0500 E-mail: aparrish@kslaw.com CENTURYLINK: Class Action Settlement Gets Final Nod --------------------------------------------------- In the class action lawsuit RE: CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION MDL No. 17-2795 (MJD/KMM), Case No. 0:18-cv-00296-MJD-KMM (D. Minn.),the Hon. Judge Michael J. Davis entered an order: 1. The Plaintiffs' Motion for Final Approval of Class Action Settlement and Plan of Allocation is granted. 2. Lead Counsel's Motion for an Award of Attorneys' Fees and Litigation Expenses is granted. 3. The Court hereby finds and concludes that the Plan of Allocation is, in all respects, fair and reasonable to the Class. Accordingly, the Court hereby approves the Plan of Allocation proposed by Plaintiffs. 4. Any appeal or any challenge affecting this Court's approval of the Plan of Allocation shall in no way disturb or affect the finality of the Judgment. 5. Plaintiffs' Counsel are hereby awarded attorneys' fees in the amount of 25% of the Settlement Fund, which sum the Court finds to be fair and reasonable. 6. Plaintiffs' Counsel are also hereby awarded $888,775.83 in payment of litigation expenses to be paid from the Settlement Fund, which sum the Court finds to be fair and reasonable. Lead Counsel shall allocate the attorneys' fees awarded amongst Plaintiffs' Counsel in a manner which they, in good faith, believe reflects the contributions of such counsel to the institution, prosecution, and settlement of the Action. 7. Lead Plaintiff and Class Representative the State of Oregon by and through the Oregon State Treasurer and the Oregon Public Employee Retirement Board, on behalf of the Oregon Public Employee Retirement Fund, is hereby awarded $40,763.69 from the Settlement Fund as reimbursement for its reasonable costs and expenses directly related to its representation of the Class. 8. Named Plaintiff and Class Representative Fernando Alberto Vildosola, as trustee for the AUFV Trust U/A/D 02/19/2009, is hereby awarded $21,375.00 from the Settlement Fund as reimbursement for his reasonable costs and expenses directly related to his representation of the Class. 9. Any appeal or any challenge affecting this Court's approval regarding any attorneys' fees and expenses application shall in no way disturb or affect the finality of the Judgment. 10. In the event that the Settlement is terminated or the Effective Date of the Settlement otherwise fails to occur, this Order shall be rendered null and void to the extent provided by the Stipulation. 11. Exclusive jurisdiction is hereby retained over the parties and the Class Members for all matters relating to this Action, including the administration, interpretation, effectuation, or enforcement of the Stipulation and this Order. -- Benefit Conferred on the Class Plaintiffs' Counsel obtained a substantial benefit for the Class. The $55 million in monetary relief represents one of the largest PSLRA settlements in this District. The amount recovered is larger than the recoveries in the parallel state Attorneys General investigations and the consumer MDL class action combined. It is over twice the median recovery in securities class actions this size under Plaintiffs’ best-case damages estimates. -- Requested Award Lead Counsel requests reimbursement of $40,763.69 for Oregon and $21,375.00 for Vildosola as Class Representatives. Oregon seeks an award based on $35,351.23 for the time dedicated by Oregon employees in the Department of Justice and the Treasury Department in furthering and supervising this litigation; $599.96 for reimbursement for travel expenses incurred by Brian de Haan from Oregon DOJ for his travel to the February 2020 mediation session; and $4,812.50 for the out-of-pocket expense to obtain an independent assessment of Lead Counsel's proposed fee request. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3fbpkR7 at no extra charge.[CC] CHEROKEE COUNTY: Burgess Conditional Class Certification Bid Nixed ------------------------------------------------------------------ In the class action lawsuit captioned Shannon Burgess, individually and on behalf of all others similarly situated v. Cherokee County School and Principal Gavin Fisher, individually and in his official capacity, District, Case No. 7:19-cv-02704-JD (D.S.C.), the Hon. Judge Joseph Dawson, III entered an order denying the Plaintiff's motion for conditional class certification of: "All current and former Teachers who have worked for Defendants at Granard Middle School after August 1, 2017 in the capacity of non-academic nonexempt hourly employee (i.e., concession stand attendant and/or ticket admission sales attendant at after school sporting events) within the statutory period covered by this Second Amended Complaint and were not paid the requisite minimum wage, and who elect to opt-in to this action pursuant to FLSA, 29 U.S.C. section 216(b). ("FLSA Minimum Wage Collective Class"); - and - "All current and former Teachers who have worked for Defendants at Granard Middle School after August 1, 2017 in the capacity of non-academic nonexempt hourly employee (i.e., concession stand attendant and/or ticket admission sales attendant at after school sporting events) within the statutory period covered by this Second Amended Complaint and were not paid the requisite overtime wage, and who elect to opt-in to this action pursuant to FLSA,29 U.S.C. section 216(b). ("FLSA Overtime Collective Class"). The Defendants Cherokee County School District and Principal Gavin Fisherhave filed a response in opposition to the motion asserting Plaintiff has not met the necessary requirements for conditional class certification. The Plaintiff did not reply to Defendants' response. After carefully reviewing the record and the submissions of the parties, the Court denies Plaintiff's Motion for Conditional Class Certification. According to Plaintiff (who is a former employee of the Defendants) she was hired as a teacher by Defendants under contract as an "Exempt Teacher" at Granard Middle School ("GMS") for Defendants for the time period beginning approximately August 2017 and ending May of 2019. Pursuant to her contract, the Plaintiff was to be "pa[id] according to the salary schedule adopted by the Board." The Plaintiff’s Exempt Teacher job duties consisted of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and was employed and engaged in this activity as a Teacher in an educational establishment. However, the Defendants required teachers "for no additional compensation, to work additional hours outside the boundaries of the reasonable educational functions directly related to academic instructions or training, and outside the normal hours of classroom teaching ("non-academic")." The Plaintiff was required to work as a concession stand attendant selling food and drink to the public at after school sporting events without additional pay. Id. Throughout her employment, Defendant Fisher required Plaintiff to perform non-academic, non-exempt work without additional pay. The Plaintiff alleges that she nor the other teachers were paid for any of this work, but that Fisher would say teachers will "volunteer or would be 'voluntold' to do it". A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3rED8IV at no extra charge.[CC] CHW GROUP: Scheduling Order & Discovery Plan Entered in Adam Suit ----------------------------------------------------------------- In the class action lawsuit captioned as WILLIAM ADAM, v. CHW GROUP, INC. d/b/a Choice Home Warranty, Case No. 21-cv-19-LRR-MAR (N.D. Iowa), the Hon. Judge Mark A. Roberts entered a scheduling order and discovery plan as follows: -- Discovery opens only on Plaintiff's July 21, 2021 individual claims: -- Initial disclosures: July 28, 2021 -- Motions to add parties: September 21, 2021 -- Motions to amend pleadings: September 21, 2021 -- Motions for Summary Judgment on November 18, 2021 Plaintiff’s individual claims: -- Discovery open on all issues: November 18, 2021 -- Motion for Class Certification: May 18, 2022 -- Expert witness disclosures: 1. Plaintiff’s expert(s): March 18, 2022 2. Defendant’s expert(s): May 17, 2022 3. Plaintiff’s rebuttal expert(s): June 16, 2022 -- Completion of all discovery: June 20, 2022 -- All dispositive motions: July 19, 2022 -- Trial ready date: December 19, 2022 CHW Group provides home repair and maintenance warranties. It offers home protection, buyers and sellers, and real estate warranty. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3BSwMdw at no extra charge.[CC] CITIBANK NA: Head "Robocalls" Suit Seeks to Certify Class --------------------------------------------------------- In the class action lawsuit captioned as Christine Head, on behalf of herself and others similarly situated, v. Citibank, N.A., Case No. 3:18-cv-08189-ROS (D. Ariz.), the Plaintiff asks the Court to enter an order: 1. certifying the following class; 2. appointing her as representative for the class; and 3. appointing Meyer Wilson Co., LPA and Greenwald Davidson Radbil PLLC as counsel for the class: "All persons and entities throughout the United States (1) to whom Citibank, N.A. placed a call in connection with a past-due credit card account, (2) directed to a number assigned to a cellular telephone service, but not assigned to a current or former Citibank, N.A. customer or authorized user, (3) via its Aspect dialer and with an artificial or prerecorded voice, (4) from August 15, 2014 through the date of class certification." Ms. Head's claims arise from robocalls Citibank placed to non-customers. Thus, consent Citibank may have to robocall its own customers is irrelevant. Citibank places hundreds of millions of robocalls each year. Citibank employs more than 2,000 agents to place outbound robocalls regarding delinquent credit card accounts. Citibank is the consumer division of financial services multinational Citigroup. Citibank was founded in 1812 as the City Bank of New York, and later became First National City Bank of New York. A copy of the Plaintiff's motion to certify class dated July 23, 2021 is available from PacerMonitor.com at https://bit.ly/3lboeIW at no extra charge.[CC] The Plaintiff is represented by: Matthew R. Wilson, Esq. Michael J. Boyle, Jr., Esq. MEYER WILSON CO., LPA 305 W. Nationwide Blvd. Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066 E-mail: mwilson@meyerwilson.com mboyle@meyerwilson.com - and - Michael L. Greenwald, Esq. Aaron D. Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 7601 N. Federal Highway, Suite A-230 Boca Raton, FL 33487 Telephone: (561) 826-5477 E-mail: mgreenwald@gdrlawfirm.com aradbil@gdrlawfirm.com CLARK COUNTY, NV: Allison's Signed Complaint v. CCDC Due Sept. 14 ----------------------------------------------------------------- In the lawsuit titled RONALD J. ALLISON, Plaintiff v. CLARK COUNTY DETENTION CENTER, Defendant, Case No. 2:21-cv-01320-JAD-BNW (D. Nev.), Magistrate Judge Brenda Weksler of the U.S. District Court for the District of Nevada rules that the Plaintiff will have until Sept. 14, 2021, to submit signed complaint to the Court in compliance with LSR 2-1. On July 9, 2021, the Plaintiff, an inmate in the custody of the Clark County Detention Center ("CCDC"), submitted an unsigned document titled Complaint & Class Action Lawsuit. The Plaintiff has not submitted an application to proceed in forma pauperis or paid the full $402 filing fee in this matter. The Plaintiff's unsigned document complaint does not comply with Local Special Rule 2-1. As such, the Court grants the Plaintiff a one-time extension until Sept. 14, 2021, to submit signed complaint to the Court in compliance with LSR 2-1. It will also provide the Plaintiff a copy of the Court's Section 1983 complaint form with instructions. Under 28 U.S.C. Section 1915(a)(2) and Local Rule LSR 1-2, an inmate seeking to begin a civil action in this Court may apply to proceed in forma pauperis in order to file the civil action without prepaying the full $402 filing fee. To apply for in forma pauperis status, the inmate must submit all three of these documents to the Court: (1) a completed Application to Proceed in Forma Pauperis for Inmate; (2) a Financial Certificate properly signed by both the inmate and a prison or jail official; and (3) a copy of the inmate's prison or jail trust fund account statement for the previous six-month period. The Court will grant the Plaintiff a one-time extension to file a fully complete application to proceed in forma pauperis containing all three of the required documents, or in the alternative, pay the full $402 filing fee for the action by Sept. 14, 2021. Absent unusual circumstances, the Court will not grant any further extensions of time. For these reasons, the Clerk of the Court is ordered to send to the Plaintiff the approved form for filing a Section 1983 complaint, instructions for the same, and a copy of his unsigned document. The Plaintiff will have until Sept. 14, 2021, to submit signed complaint to the Court in compliance with LSR 2-1. If the Plaintiff does not file a signed complaint in compliance with LSR 2-1 by Sept. 14, 2021, the case will be subject to dismissal without prejudice for the Plaintiff to refile the case with the Court, under a new case number, when the Plaintiff is able to file a signed complaint in compliance with LSR 2-1. The Clerk of the Court will send the Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the document entitled information and instructions for filing an in forma pauperis application. By Sept. 14, 2021, the Plaintiff will either pay the full $402 filing fee for a civil action (which includes the $350 filing fee and the $52 administrative fee) or file with the Court the fully complete application to proceed in forma pauperis containing all three of the required documents. If the Plaintiff does not file a fully complete application to proceed in forma pauperis with all three documents or pay the full $402 filing fee for a civil action by Sept. 14, 2021, the case will be subject to dismissal without prejudice for the Plaintiff to refile the case with the Court, under a new case number, when the Plaintiff has all three documents needed to file a complete application to proceed in forma pauperis or pays the full $402 filing fee. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/27ce4u2x from Leagle.com. CLARK COUNTY, NV: Compliant Suit in Allison v. CCDC Due Sept. 14 ---------------------------------------------------------------- Magistrate Judge Nancy J. Koppe of the U.S. District Court for the District of Nevada directed the Plaintiff to file a compliant document by September 14, 2021, in the lawsuit RONALD J. ALLISON, Plaintiff v. CCDC, et al., Defendants, Case No. 2:21-cv-01321-JAD-NJK (D. Nev.). On July 9, 2021, Plaintiff, an inmate in the custody of the Clark County Detention Center ("CCDC"), submitted a document titled One Million Dollar Class Action Lawsuit. The Plaintiff has not filed a complaint or an application to proceed in forma pauperis or paid the full $402 filing fee in this matter. Under Rule 3 of the Federal Rules of Civil Procedure, a civil action is commenced by filing a complaint with the court. In addition, any complaint submitted by the Plaintiff must comply with Local Special Rule 2-1. Under LSR 2-1, a civil rights complaint filed by a person, who is not represented by an attorney, must be submitted on the form provided by the court or must be legible and contain substantially all the information called for by the court's form. As such, the Court grants the Plaintiff a one-time extension until Sept. 14, 2021, to submit complaint to the Court in compliance with LSR 2-1. The Court will also provide Plaintiff a copy of the Court's Section 1983 complaint form with instructions. Under 28 U.S.C. Section 1915(a)(2) and Local Rule LSR 1-2, an inmate, who financially qualifies, may seek to begin a civil action in this Court by applying to proceed in forma pauperis in order to file the civil action without prepaying the full $402 filing fee. To apply for in forma pauperis status, the inmate must submit all three of the following documents to the Court: (1) a completed Application to Proceed in FormaPauperis for Inmate, this Court's approved form, (2) a Financial Certificate properly signed by both the inmate and a prison or jail official, and (3) a copy of the inmate's prison or jail trust fund account statement for the previous six-month period. The Court will grant the Plaintiff a one-time opportunity to file a complaint in compliance with LSR 2-1 and a fully complete application to proceed in forma pauperis containing all three of the required documents, or in the alternative, pay the full $402 filing fee for the action by Sept. 14, 2021. Absent unusual circumstances, the Court will not grant any further extensions of time. If the Plaintiff is unable to file a complaint in compliance with LSR 2-1 and a fully complete application to proceed in forma pauperis with all three required documents or pay the full $402 filing fee by Sept. 14, 2021, this case will be subject to dismissal without prejudice for the Plaintiff to file a new case with the Court when Plaintiff is able to file a complaint in compliance with LSR 2-1 and able to acquire all three of the documents needed to file a fully complete application to proceed in forma pauperis or pay the full $402 filing fee. A dismissal without prejudice means the Plaintiff does not give up the right to refile the case with the Court, under a new case number, when Plaintiff is able to file a complaint in compliance with LSR 2-1 and has all three documents needed to submit with an application to proceed in forma pauperis. Alternatively, the Plaintiff may choose not to file an application to proceed in forma pauperis and instead pay the full filing fee of $402 by Sept. 14, 2021, to proceed with the case. Conclusion For these reasons, the Court ruled that the Plaintiff will submit a complaint in compliance with LSR 2-1 to the Court on or before Sept. 14, 2021. The Clerk of the Court will send to the Plaintiff the approved form for filing a 42 U.S.C. Section 1983 complaint and instructions for the same. The Clerk of the Court will also send the Plaintiff a copy of his One Million Dollar Class Action Lawsuit. The Clerk of the Court will send Plaintiff the approved form application to proceed in forma pauperis by an inmate, as well as the document entitled information and instructions for filing an in forma pauperis application. On or before Sept. 14, 2021, the Plaintiff will either pay the full $402 filing fee for a civil action (which includes the $350 filing fee and the $52 administrative fee) or file with the Court all three of the required documents. If the Plaintiff does not file a complaint in compliance with LSR 2-1 and a fully complete application to proceed in forma pauperis with all three documents or pay the full $402 filing fee for a civil action by Sept. 14, 2021, the case will be subject to dismissal without prejudice for the Plaintiff to refile the case with the Court, under a new case number, when the Plaintiff is able to file a complaint in compliance with LSR 2-1 and has all three documents needed to file a complete application to proceed in forma pauperis or pays the full $402 filing fee. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/38pbjb36 from Leagle.com. COLOPLAST A/S: South African Women Files Pelvic Mesh Class Action ----------------------------------------------------------------- Medical Xpress reports that a dozen women in South Africa are following counterparts in Western countries in suing pharma companies for chronic harm they say was inflicted by implants designed to treat incontinence and other ailments. The polypropylene device, called a trans-vaginal mesh (TVM), is designed to work as an internal support to treat urinary incontinence and displacement of pelvic organs -- called prolapse -- which most commonly occur after childbirth. But thousands of women say they have suffered long-term damage and pain after having the mesh implanted, resulting in several lawsuits against various companies. The South African group is bringing a class action suit against Danish medical device manufacturer Coloplast and Ethicon, a subsidiary of US pharmaceutical giant Johnson & Johnson. Their representatives on July 26 said they intend to launch the case -- the first action against TVM in Africa—by August. "We have been approached by multiple women who have been implanted with what we believe are defective trans-vaginal mesh implants manufactured by these two companies," Zain Lundell, an expert in class-action litigation working on the case, told AFP. The firms are also accused of skimping on performance testing and failing to communicate risks. If successful, the suit could lay the foundation for compensation claims for hundreds more women in South Africa. "The injuries are very serious and debilitating," said Lundell. "We believe many women will have claims in the millions or tens of millions of rands (hundreds of thousands or millions of dollars)." J&J has already lost class actions in Australia and the United States for injuries caused by its device. In January 2020, a US judge ordered the firm to pay $344 million (291 million euros) for false and deceptive marketing of pelvic mesh products used by tens of thousands of women in California. Something 'not right' One of the plaintiffs, Suzette Roodt, is hoping compensation will help fund a costly operation to remove her own mesh implant. The device is so imbedded in surrounding tissue that removal requires laser technology that is unavailable in public hospitals, she said. The 57-year-old had been optimistic in 2015, when a new job allowed her to afford an insert that would help end her long struggle with bladder leakage. But as soon as she was discharged from hospital in 2015, Roodt "knew something was not right", she said. The implant hardened, causing complete obstruction of her bladder as well as frequent bleeding and kidney infections. "We were never told about the risks or given other options," Roodt, who is now permanently attached to a catheter, said via telephone. "There has been permanent damage to me." Unlike South Africa, the United States in 2016 classified mesh used for pelvic organ prolapse as a "high-risk device" and banned its sale in 2019. Complications occur in up to a quarter of women, according to a study by BioMed Research International. 'Need to lie down' But Chantell Bothma said no such information was communicated to her. The 41-year-old was offered the implant in 2016 to treat prolapse after giving birth to her first child. The mesh eroded and melded with her tissue, eventually forcing Bothma to have it removed four years later. She still experiences bladder pain. "I used to be very active," she recalled. "Now when I play with my little boy I need to lie down." Bothma was recently hospitalised for an unrelated condition during which she met another woman about to receive a similar implant. The encounter spurred her to take legal action. Ethicon told AFP that pelvic mesh has "helped improve the quality of life for millions of women". "We empathise with those who have experienced complications," the company said via email. "Ethicon has acted ethically and responsibly." Coloplast did not respond to requests for comment. The case could conclude within three years, Lundell said. [GN] COMPUTER HAUS: Class Cert. Hearing Rescheduled to August 5 ---------------------------------------------------------- In the class action lawsuit captioned as SHAILESH JAHAGIRDAR et. al., v. THE COMPUTER HAUS NC, INC. et. al., Case No. 1:20-CV-00033-MOC (W.D.N.C.), the Hon. Judge Max O. Cogburn, Jr. entered an order rescheduling hearing date on Plaintiffs' Motion for Class Certification to August 5, 2021. The Computer Haus NC Inc is located in Bellingham, Washington, and is part of the electronic and precision equipment repair and maintenance industry. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3lcLxSI at no extra charge.[CC] CONSUMER FINANCIAL: Seeks Extension of Rebuttal Reports Completion ------------------------------------------------------------------ In the class action lawsuit captioned as CARZANNA JONES and HEYNARD L. PAZ-CHOW, on behalf of themselves and all others similarly situated, v. DAVID UEJIO, in his official capacity as Acting Director, Consumer Financial Protection Bureau, and CONSUMER FINANCIAL PROTECTION BUREAU, Case No. 1:18-cv-02132-BAH (D.D.C.), the Defendant Bureau asks the Court to enter an order granting its Unopposed Motion for Extension of Deadline to Complete Expert Rebuttal Reports on Class Certification and for Extension of Case Deadlines and all other papers filed in this proceeding: -- By September 17, 2021, the parties shall produce their expert rebuttal reports on class certification. -- By September 24, 2021, the parties shall provide notice of class certification expert depositions. -- By October 15, 2021, the parties shall complete any expert depositions on class certification and the parties shall file a joint status report advising the Court whether the parties request referral for mediation or settlement. -- By November 8, 2021, Plaintiffs shall file any motion for class or conditional class certification. -- By December 20, 2021, Defendants shall file any opposition to Plaintiffs’ motion for class certification. -- By January 18, 2022, Plaintiffs shall file any reply in support of class. A copy of the Defendant's motion dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/2VlEADJ at no extra charge.[CC] Counsel for the Defendant Consumer Financial Protection Bureau are: Allison Ziegler, Esq. Stephen Van Meter, Esq. John R. Coleman, Esq. Laura Hussain, Esq. Thomas McCray-Worrall, Esq. Derick Sohn, Esq. Azmi F. Kazzi, Esq. Ryan Cooper, Esq. CONSUMER FINANCIAL PROTECTION BUREAU 1700 G Street, NW Washington, DC 20552 Telephone: (202) 435-9940 Facsimile: (202) 435-7024 E-mail: Allison.ziegler@cfpb.gov CORRECTIONS CORP: $56MM Class Settlement to be Heard on Nov. 8 -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP issued the following statement regarding the Corrections Corporation of America, Inc. Securities Settlement: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NIKKI BOLLINGER GRAE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. CORRECTIONS CORPORATION OF AMERICA, et al., Defendants. Civil Action No. 3:16-cv-02267 Honorable Aleta A. Trauger SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS AND ENTITIES THAT PURCHASED OR OTHERWISE ACQUIRED CORRECTIONS CORPORATION OF AMERICA, INC. (N/K/A CORECIVIC) ("CCA") DURING THE PERIOD FROM FEBRUARY 27, 2012 THROUGH AUGUST 17, 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 November 8, 2021, at 1:30 p.m., before the Honorable Aleta A. Trauger at the United States District Court, Middle District of Tennessee, Estes Kefauver Federal Building & Courthouse, 801 Broadway, Nashville, TN 37203 to determine whether: (1) the proposed settlement (the "Settlement") of the above-captioned Litigation as set forth in the Stipulation of Settlement ("Stipulation")1 for $56,000,000 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 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; (4) to pay Plaintiff for its costs and expenses in representing the Class out of the Settlement Fund and, if so, in what amount; and (5) 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 videoconference, 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, it is important that you monitor the Court's docket and the Settlement website, www.CoreCivicSecuritiesLitigation.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 or telephonic appearances at the hearing, will also be posted to that website. Also, if the Court requires or allows Class Members to participate in the Settlement Hearing by telephone or videoconference, the access information will be posted to the Settlement website, www.CoreCivicSecuritiesLitigation.com. IF YOU PURCHASED OR ACQUIRED CCA SECURITIES FROM FEBRUARY 27, 2012 THROUGH AUGUST 17, 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 ("Proof of Claim") by mail (postmarked no later than November 19, 2021) or electronically (no later than November 19, 2021). Your failure to submit your Proof of Claim by November 19, 2021, will subject your claim to rejection and preclude your receiving any of the recovery in connection with the Settlement of this Litigation. If you purchased or acquired CCA securities from February 27, 2012 through August 17, 2016, inclusive, and do not request exclusion from the Class, 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. 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, 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.CoreCivicSecuritiesLitigation.com, or by writing to: CCA/CoreCivic Securities Settlement Claims Administrator c/o Gilardi & Co. LLC P.O. Box 43377 Providence, RI 02940-3377 Inquiries should NOT be directed to Defendants, the Court, or the Clerk of the Court. Inquiries, other than requests for the Notice or for a Proof of Claim, may be made to Class 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 DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED BY OCTOBER 8, 2021, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. IF YOU REQUESTED EXCLUSION FROM THE CLASS IN CONNECTION WITH THE NOTICE OF PENDENCY OF CLASS ACTION YOU RECEIVED IN 2020, DO NOT SUBMIT ANOTHER EXCLUSION REQUEST. ALL CLASS MEMBERS WILL BE BOUND BY THE SETTLEMENT EVEN IF THEY DO NOT SUBMIT A TIMELY PROOF OF CLAIM. IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY PLAINTIFF'S COUNSEL FOR AN AWARD OF ATTORNEYS' FEES NOT TO EXCEED THIRTY-THREE AND ONE-THIRD PERCENT OF THE $56,000,000 SETTLEMENT AMOUNT AND EXPENSES NOT TO EXCEED $2,300,000, AND/OR THE PAYMENT TO PLAINTIFF FOR ITS COSTS AND EXPENSES NOT TO EXCEED $42,000. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO CLASS COUNSEL AND DEFENDANTS' COUNSEL BY OCTOBER 8, 2021, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: June 29, 2021 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE 1 The Stipulation can be viewed and/or obtained at www.CoreCivicSecuritiesLitigation.com. COSTCO WHOLESALE: Karlinski Slams Choco Substitutes in Ice Cream ---------------------------------------------------------------- Mike Karlinski, individually and on behalf of all others similarly situated, Plaintiff, v. Costco Wholesale Corporation, Defendant, Case No. 21-cv-03813 (N.D. Ill., July 17, 2021), seeks to recover actual damages, statutory damages, attorney fees and costs for breaches of express warranty, implied warranty of merchantability under the Illinois Consumer Fraud and Deceptive Business Practices Act and the Magnuson Moss Warranty Act. Costco Wholesale Corporation manufactures, labels, markets and sells ice cream bars purporting to be dipped in "chocolate," presented with chunks of chocolate and other ingredients, namely vanilla beans and flowers and almonds, under the Kirkland Signature brand. Karlinski purchased Kirkland ice cream bars from Costco and alleges that said product contains cheaper chocolate substitutes, "coconut oil" and "Soybean Oil" in amounts greater than cacao bean ingredients. [BN] Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cutter Mill Rd., Ste. 409 Great Neck NY 11021-3104 Tel: (516) 268-7080 Fax: (516) 234-7800 Email: spencer@spencersheehan.com CRUNCH FITNESS: Faces Pacheco TCPA Suit for Unsolicited Phone Calls ------------------------------------------------------------------- JUSTIN G. PACHECO, individually, and on behalf of all others similarly situated v. CRUNCH FITNESS, Case No. 6:21-cv-01177-RBD-DCI (M.D. Fla., July 20, 2021) is an action seeking redress for violations of the Telephone Consumer Protection Act (TCPA) and the Florida Consumer Collection Practices Act. According to the complaint, in late 2019, Plaintiff signed up for a gym membership with Defendant. Plaintiff eventually decided that he no longer needed his gym membership and canceled shortly after joining. At the time Plaintiff canceled, he completed all necessary steps and paperwork. Around the beginning of 2020, Defendant started placing harassing collection calls to Plaintiff's cellular phone. Despite Plaintiff's unambiguous requests that Defendant cease contacting him and explaining that he does not need to complete any paperwork, Defendant continued placing unwanted and unconsented phone calls to Plaintiff's cellular phone. Defendant's phone calls invaded Plaintiff's privacy and have caused Plaintiff actual harm, including but not limited to, aggravation that accompanies unsolicited phone calls, increased risk of personal injury resulting from the distraction caused by the phone calls, wear and tear to Plaintiff's cellular phone, temporary loss of use of Plaintiff's cellular phone while Plaintiff's cellular phone was ringing, loss of battery charge, loss of concentration, nuisance, the per-kilowatt electricity costs required to recharge Plaintiff's cellular telephone as a result of increased usage of Plaintiff's telephone services, and wasting Plaintiff's time, the complaint alleges. Defendant operates multiple gyms in Florida and markets its gym memberships to consumers in Florida.[BN] The Plaintiff is represented by: Alejandro E. Figueroa, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Ave, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8181 Facsimile: (630) 575-8188 E-mail: alejandrof@sulaimanlaw.com CSI ELECTRICAL: Huerta Appeals Labor Suit Ruling to 9th Cir. ------------------------------------------------------------ Plaintiff George Huerta filed an appeal from a court ruling entered in the lawsuit styled GEORGE HUERTA, v. CSI ELECTRICAL CONTRACTORS, INC., et al., Case No. 5:18-cv-06761-BLF, in the U.S. District Court for the Northern District of California, San Jose. The lawsuit is a wage and hour class and PAGA action arising out of the California Flats Solar Project. Plaintiff George Huerta and the proposed class members brought suit against non-settling Defendant CSI Electrical Contractors, Inc., asserting five class claims: (1) failure to pay wages for hours worked under Cal. Labor Code Section 1197; (2) wage statement and record-keeping violations under Cal. Labor Code Section 226; (3) failure to pay waiting time wages under Cal. Labor Code Section 203; (4) violation of Cal. Labor Code Section 2802; and (5) violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200, et seq. Huerta separately brought a claim for the recovery of civil penalties under the California Private Attorney General Act, Cal. Labor Code Section 2698, et seq. As previously reported in the Class Action Reporter, the Hon. Judge Beth Labson Freeman entered an order holding that the Plaintiff's Motion for Class Certification is granted as to the Unpaid Wages Class (Security Time), Unpaid Wages Class (Controlled Travel Time), Unpaid Wages Class (Paragraph 5(A) Travel Time), Unpaid Wages Class (Meal Period Time), Termination Pay Subclass, and Wage Statement Subclass. The Plaintiff now seeks a review of the Court's Order dated April 28, 2021, granting Defendants' motion for partial summary judgment; Court's Order dated June 25, 2021, granting Defendants' second motion for partial summary judgment; and Court's Judgment dated July 14, 2021 on stipulation with proposed order regarding judgment filed by the Plaintiff.[BN] The appellate case is captioned as George Huerta v. CSI Electrical Contractors, Inc., et al., Case No. 21-16201, in the United States Court of Appeals for the Ninth Circuit, filed on July 20, 2021. The briefing schedule in the Appellate Case states that: -- Appellant George Huerta Mediation Questionnaire was due July 27, 2021; -- Transcript shall be ordered by August 18, 2021; -- Transcript is due on September 17, 2021; -- Appellant George Huerta opening brief is due on October 27, 2021; -- Appellee CSI Electrical Contractors, Inc. answering brief is due on November 26, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant GEORGE HUERTA, an individual, on behalf of himself and all others similarly situated and as a representative plaintiff, is represented by: Lonnie C. Blanchard, III, Esq. THE BLANCHARD LAW GROUP, APC 5211 East Washington Blvd. No. 2262 Commerce, CA 90040 Telephone: (213) 599-8255 E-mail: lonnieblanchard@gmail.com - and - Peter R. Dion-Kindem, Esq. THE DION-KINDEM LAW FIRM 2945 Townsgate Road, Suite 200 Westlake Village, CA 91301 Telephone: (818) 883-4900 E-mail: peter@dion-kindemlaw.com Defendant-Appellee CSI ELECTRICAL CONTRACTORS, INC. is represented by: Daniel Benjamin Chammas, Esq. Min Kyung Kim, Esq. FORD & HARRISON, LLP 350 S Grand Avenue, Suite 2300 Los Angeles, CA 90071 Telephone: (213) 237-2400 CUSTOMER CONNEXX: Loses Bid to Decertify Class in Cadena Suit ------------------------------------------------------------- In the class action lawsuit captioned as CARIENE CADENA, et al., v. CUSTOMER CONNEXX LLC and JANONE INC., Case No. 2:18-cv-00233-APG-DJA (D. Nev.), the Hon. Judge Andrew P. Gordon entered an order that: -- the defendant Customer Connexx motion to decertify is denied; -- the defendant Customer Connexx motion for summary judgment and defendant JanOne joinder are granted in part as to the plaintiffs' claims under the Fair Labor Standards Act; -- the plaintiffs' motion to certify a class, defendant JanOne's separate motion for summary judgment, and the defendants' motion to strike are denied as moot, without prejudice to raise those issues in the state court proceedings; -- the plaintiffs' state law claims are remanded to the state court from which this case was removed for all further proceedings; and -- the clerk of the court is instructed to close this case. Judge Gordon says that he deny the defendants' motion to decertify because the plaintiffs have presented evidence of a company-wide policy of requiring employees to engage in some way with their computers to open the timekeeping program before clocking in. The employees must do so because CC maintained its timekeeping program on the computer. The question of whether that time is compensable under the FLSA is a question that can be resolved on a collective basis, as demonstrated by CC's summary judgment motion. By and large, CC does not make individualized arguments about why the plaintiffs' FLSA claims fail. Rather, CC argues the boot up and shut down times are not compensable under the Portal-to-Portal Act or that the time is de minimis. It alternatively contends that it did not and could not have known that employees were working overtime because it had a mechanism for employees to adjust their time. The fact that the amount of time each employee spent on the boot up and shut down activities varied does not counsel in favor of decertification. I thus decline to decertify the collective action. The Plaintiffs Cariene Cadena and Andrew Gonzales were hourly employees working at a call center for defendant Customer Connexx LLC (CC). CC is a wholly owned subsidiary of defendant JanOne Inc. The plaintiffs sue on behalf of themselves and similarly situated employees under the Fair Labor Standards Act (FLSA) and Nevada law, claiming they were not paid for all time worked. Specifically, they contend that they were not paid for time spent booting up their computers before clocking into a timekeeping program at the beginning of their shifts and for time spent powering down the computers after clocking out of the timekeeping program at the end of their shifts. They contend that the failure to account and pay for this time resulted in overtime violations under the FLSA. They also assert state law violations for the failure to pay for all hours worked, minimum wages and overtime, and timely payment of wages due and owing upon termination. Finally, they assert a breach of contract claim for failure to pay for all work performed. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3ldNSwC at no extra charge.[CC] DAGON MOON: Court Tosses Eaves Bid for TRO ------------------------------------------- In the class action lawsuit captioned as MICHAEL LYNN EAVES v. DAGON MOON et al., Case No. 3:21-cv-00296-RGJ (W.D. Ky.), the Hon. Judge Rebecca Grady Jennings entered an order: 1. denying the Plaintiff's motion for a temporary restraining order (TRO); 2. denying the motion for leave to file a second amended complaint; 3. directing the Plaintiff within 30 days of entry of this Order, to file a second amended complaint on the Court- approved section 1983 complaint form and tender summons forms for any newly named Defendants; 4. directing the Clerk of Court to send Plaintiff a section 1983 complaint form with the instant case number and word "Second Amended" affixed to the caption along with three summons forms with the instant case number affixed to the caption. 5. warning Plaintiff that his failure to file a second amended complaint within 30 days will result in dismissal of the instant action for failure to comply with an Order of this Court. Finally, with regard to Plaintiff's statement that he will go on a hunger strike until this Court acts on his claims, the Court advises Plaintiff that it views the statement as a veiled threat and it will not motivate the Court to act in his favor, Judge Jennings says. In the original complaint, the Plaintiff sues Dagon Moon, whom he identifies as a "special services coordinator" and grievance coordinator at LLCC, and Richard D. Lilly, an attorney for the Kentucky Department of Corrections (KDOC). He alleges mishandling of his legal mail, retaliation, harassment, negligence, and disclosure of personal medical information. He also makes allegations concerning Defendant Lilly's actions in a prior civil action Plaintiff filed while an inmate at the Northpoint Training Center. A copy of the Court's memorandum and order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/374iFni at no extra charge.[CC] DAVITA INC: Peace Officers' Counsel Wins $41MM in Fees & Expenses ----------------------------------------------------------------- The U.S. District Court for the District of Colorado grants the Lead Plaintiffs' Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses in the lawsuit styled PEACE OFFICERS' ANNUITY AND BENEFIT FUND OF GEORGIA, individually and on behalf of all others similarly situated; and JACKSONVILLE POLICE AND FIRE PENSION FUND, individually and on behalf of all others similarly situated, Plaintiffs v. DaVITA INC.; KENT J.T HIRY; JAMES K.H ILGER; and JAVIER J. RODRIGUEZ, Defendants, Case No. 17-cv-0304-WJM-NRN (D. Colo.). The Court awards to the Plaintiffs attorneys' fees in the amount of 30% of the Settlement Fund, or $40,500,000, and the reimbursement of $547,409 in litigation expenses. On April 13, 2021, the Court entered the Order Granting Lead Plaintiffs' Motion for Final Approval of Class Action Settlement and Plan of Allocation. In the instant Motion, the Lead Plaintiffs request that the Court enter an order directing: (i) an award of attorneys' fees in the amount of 30% of the Settlement Fund; (ii) reimbursement of $547,409.27 in litigation expenses; and (iii) Representative Reimbursements of $10,000 to the Lead Plaintiffs for their efforts in representing the Settlement Class, as authorized by the Private Securities Litigation Reform Act of 1995 ("PSLRA"). No class members have objected to the Lead Plaintiffs' requests. The Lead Plaintiffs submit that prosecuting this case required Lead Counsel to expend more than 31,000 hours, equivalent to $14.7 million in attorney and staff time, over the course of more than four years of vigorous litigation. These efforts included an extensive and extremely comprehensive investigation, which included locating numerous internal documents and confidential witnesses that proved critical in drafting a highly-detailed Complaint sufficient to defeat the Defendants' motion to dismiss. Furthermore, the Lead Counsel engaged in comprehensive discovery, including consulting with various economic and industry experts and reviewing 845,000 pages of documents produced by the Defendants and over 20 third-parties. In addition, the extensive settlement negotiations were time-consuming, including submitting detailed mediation statements and presentations over the course of six formal mediations that culminated in the Settlement. In the Motion, the Lead Plaintiffs note that Lead Counsel will continue to expend additional time and out-of-pocket expenses in connection with the settlement administration process and assist with implementation of the Settlement, which was approved following the Fairness Hearing. Based on these efforts expended by the Lead Counsel, the Court concludes that the time and labor expended was appropriate given the nature of the case and finds that this factor supports the requested award. As the Lead Plaintiffs point out, the monetary result here is "exceptional." The $135 million recovery represents the second-largest all-cash securities class action recovery ever obtained in this District, is among the top five such settlements in Tenth Circuit history, and is more than 20 times larger than the $6.7 million median for securities class action settlements in the Tenth Circuit from 2010 to 2019. District Judge William J. Martinez notes that the likely maximum damages at trial ranged from $312 million to $432 million, and, therefore, the Settlement recovers between 31% and 43% of the Class's damages--eight to eleven times greater than the median 3.9% recovery in similar actions, a significant achievement which, in the Court's view, further supports granting the fee request. Given the extraordinary nature of the recovery for class members, the Court finds that this factor also favors granting the fee request. In the Motion, the Lead Plaintiffs provide a detailed chart demonstrating that numerous courts in the Tenth Circuit and nationwide have awarded 30% fees or higher in large complex class actions. In addition, the Court notes that a lodestar cross-check, while not required in the Tenth Circuit, supports the fee request. Moreover, the Lead Counsel's hourly rates--ranging from $365 to $895 for attorneys, and $250 to $275 for support staff--are lower than hourly rates previously approved by this Court and others within the District. The Court concludes this factor also supports the fee request. As the Lead Plaintiffs point out, the vast majority of securities class actions draws multiple applications for appointment as lead plaintiff and lead counsel--that is the very purpose of the PSLRA provision requiring notice to be disseminated advising shareholders of the lead plaintiff deadline. Here, however, no law firm other than Saxena White submitted a leadership application--a fact that underscores the perceived "undesirability" and difficulty of the case. Importantly, the risk that the Lead Counsel would recover no compensation for their extensive efforts was not merely hypothetical, especially where, as here, the Plaintiffs were subject to the PSLRA's heightened pleading standard and faced the immediate possibility of an adverse decision. Judge Martinez points out that to date, the Lead Counsel has received no compensation for its prosecution of this case, and since the extensive commitment of time and resources devoted here necessarily entailed the preclusion of other projects, the primary focus of this factor is to acknowledge this incongruence by permitting a higher recovery to compensate for the risk of recovering nothing. The Court concludes that this factor also weighs in favor of the requested award. The Court also notes that none of the class members objected to the requested attorneys' fees, which weighs in favor of the requested award, citing Anderson v. Merit Energy Co., 2009 WL 3378526, at *4 (D. Colo. Oct. 20, 2009). The Court finds that in combination the applicable factors under Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974) compel its conclusion that 30% of the $135 million common fund, or $40,500,000, reflects a reasonable attorney fee award in this case. As a consequence, the Court will grant in full the Lead Plaintiffs' request for attorneys' fees. The Lead Counsel seek reimbursement of $547,409 in litigation expenses reasonably incurred in litigating the Action, which expenses are routinely awarded in similar actions, including expert fees, mediation expenses, discovery-related costs, and investigation expenses. Notably, the requested expenses are significantly less than the $750,000 amount set forth in the Notice, and no objections have been lodged thereto--further supporting the reasonableness of the expense reimbursement request. Upon due consideration, the Court is satisfied that the expenses are reasonable, given the issues presented and duration of this case, and are of the type normally billed to clients. The Court will, therefore, award Lead Counsel $547,409 in litigation expenses reasonably incurred in the prosecution of this case. Hence, the Court: 1. rules that the Lead Plaintiffs' Motion for Final Approval of Class Action Settlement and Plan of Allocation is granted; 2. awards to the Plaintiffs attorneys' fees in the amount of 30% of the Settlement Fund, or $40,500,000, and the reimbursement of $547,409 in litigation expenses; and 3. rules that should there be an unreasonable delay in the payment of these sums to the Lead Plaintiffs, they are granted leave to seek an order from this Court setting a deadline for such payment. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/t5rmd28h from Leagle.com. DCF WELLPATH: Boatman Class Suit Dismissed w/o Prejudice -------------------------------------------------------- In the class action lawsuit captioned as RAYVON L. BOATMAN v. DONALD SAWYER, EMILY SALEMA, BRIAN LIBEL, J.P. CARNER, DCF WELLPATH RECOVERY SOLUTIONS GEO GROUP, SVPPD,CORRECT CARE RECOVERY, M. MASTERS, and JOHN DOE CIRCUIT COURT JUDGE/CLERK OFFICE, Case No. 2:21-cv-00176-JES-MRM (M.D. Fla.), the Hon. Judge John E. Steele entered an order that: 1. The Plaintiff's class action complaint is dismissed without prejudice to any individual plaintiff filing his or her own 42 U.S.C. section 1983 complaint along with a filing fee or motion to proceed as a pauper. 2. The Plaintiff's motion to proceed in forma pauperis is denied as moot, and Plaintiff is not assessed a filing fee. 3. The Plaintiff's motion for class certification is denied. 4. The Plaintiff's motion for appointment of counsel is denied. 5. The Clerk of Court is directed to deny any additional pending motions as moot, close this case, and enter judgment accordingly. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3yeVDGk at no extra charge.[CC] DISTRICT OF COLUMBIA: Plaintiffs Seek to Certify Class ------------------------------------------------------- In the class action lawsuit captioned as M.J., et al., v. The District of Columbia, et al., Case No. 1:18-cv-01901-EGS (D.D.C.), the Plaintiffs L.R., on behalf of herself and all others similarly situated; and University Legal Services, Inc. (doing business as "Disability Rights DC"), pursuant to Federal Rule of Civil Procedure 23(c)(1) and Local Civil Rule 23.1(b), ask the Court to enter an order certifying a class consisting of: "all Medicaid-eligible District of Columbia children who now or in the future are under the age of 21, have a mental health disability, are not receiving medically necessary intensive community-based services, and are unnecessarily institutionalized or at serious risk of institutionalization." A copy of the Plaintiffs' motion to certify class dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3i6JfCE at no extra charge.[CC] The Plaintiffs are represented by: Jason T. Mitchell, Esq. Sandra J. Bernstein, Esq. Mary Nell Clark, Esq. DISABILITY RIGHTS DC AT UNIVERSITY LEGAL SERVICES 220 I Street NE, Suite 130 Washington, D.C. 20002 Telephone: (202) 547-0198 - and - Ira A. Burnim, Esq. Lewis L. Bossing, Esq. Brittany Vanneman, Esq. JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW 1090 Vermont Avenue, NW, Suite 220 Washington, D.C. 20005 Telephone: (202) 467-5730 - and - Seth M. Galanter, Esq. NATIONAL CENTER FOR YOUTH LAW 1313 L Street NW, Suite 130 Washington, D.C. 20005 Telephone: (202) 868-4786 - and - Howard Schiffman, Esq. Jason T. Mitchell, Esq. SCHULTE ROTH & ZABEL LLP 901 Fifteenth Street NW, Suite 800 Washington, D.C. 20005 Telephone: (202) 729-7470 DLA PIPER: Gleinn Securities Suit Seeks to Certify Classes ---------------------------------------------------------- In the class action lawsuit captioned as RICHARD GLEINN and PHYLLIS GLEINN, et al., individually and on behalf of others similarly situated, v. PAUL WASSGREN, an individual; DLA PIPER (US), a limited liability partnership; and FOX ROTHSCHILD LLP, a limited liability partnership, Case No. 8:20-cv-01677-MSS-CPT (M.D. Fla.), the Plaintiffs ask the Court to enter an order: a. certifying the Proposed Classes; b. appointing Class Plaintiffs to serve as Class Representatives for the Proposed Classes; c. appointing Andrew S. Friedman of Bonnett Fairbourn Friedman & Balint, PC, and Adam Moskowitz of The Moskowitz Law Firm, PLLC, to serve as Co-Lead Class Counsel for the Proposed Classes; and d. appointing the balance of Plaintiffs' Counsel as Class Counsel. The Proposed Classes are: -- The Arizona Class By Plaintiffs Celli and Rubinstein, on behalf of "All persons who (a) purchased an EquiAlt Security while they were a resident of Arizona; and (b) who have suffered a net loss from that investment." -- The Colorado Class By Plaintiffs Hannen, on behalf of "All persons who (a) purchased an EquiAlt Security while they were a resident of Colorado; and (b) who have suffered a net loss from that investment." -- The California Class By Plaintiffs Meier, Murphy, Greenberg, and Cobleigh, on behalf of "All persons who (a) purchased an EquiAlt Security: while they were a resident of California; and (b) have suffered a net loss from that investment." Excluded from the Proposed Classes are (a) Defendants and any former or current employee of Defendants; (b) EquiAlt and any former or current employee, affiliate, parent, or subsidiary; (c) the Managers, and their families, heirs, successors and predecessors in interest or assigns of any such excluded person, (d) any entity in which the Managers have a controlling interest; (e) any Judge to whom this case is assigned as well as his or her immediate family and staff; and (f) any member of the Proposed Classes with pending individual litigation against Defendants based losses sustained in connection with the offer or purchase of any EquiAlt Securities. The Plaintiffs in this action assert claims against the Defendants for aiding and abetting (a) violations of various state securities laws prohibiting: (i) the sale of unregistered securities; (ii) false or misleading representations in connection with the sale of securities; and (iii) sales by unregistered securities dealers or sales agents, and (b) common law fraud and breach of fiduciary duty. In particular, the Plaintiffs assert that the Defendants knowingly aided and abetted unlawful and fraudulent securities sales perpetrated by EquiAlt and its two principals, Brian Davison and Barry Rybicki, who paid unlicensed sales agents to raise more than $170 million through a series of integrated public offerings of unregistered securities styled as fixed-interest debentures (the EquiAlt Securities). The Securities Exchange Commission shut down EquiAlt's securities offering in February 2020, and a receiver has been appointed to liquidate EquiAlt's assets ("the Receiver"). DLA Piper LLP US operates as a law firm. A copy of the Plaintiff's motion to certify class dated July 23, 2021 is available from PacerMonitor.com at https://bit.ly/3xkcS7M at no extra charge.[CC] The Plaintiffs are represented by: Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. William F. King, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, PC 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 E-mail: afriedman@bffb.com fbalint@bffb.com bking@bffb.com Adam M. Moskowitz - and - Howard M. Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 Facsimile: (786) 298-5737 E-mail: Adam@moskowitz-law.com Howard@moskowitz-law.com Joseph@moskowitz-law.com - and - Jeffrey R. Sonn, Esq. SONN LAW GROUP PA One Turnberry Place 19495 Biscayne Blvd. Suite 607 Aventura, FL 33180 Telephone: (305) 912-3000 Facsimile: (786) 485-1501 E-mail: jsonn@sonnlaw.com - and - Leonard B. Simon, Esq. LAW OFFICES OF LEONARD B. SIMON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 818-0644 E-mail: LenS@rgrdlaw.com - and - David S. Casey, Jr., Esq. Gayle M. Blatt, Esq. Jeremy Robinson, Esq. James M. Davis, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com gmb@cglaw.com jrobinson@cglaw.com jdavis@cglaw.com Herman J. Russomanno - and - Robert J. Borrello, Esq. Herman J. Russomanno III, Esq. RUSSOMANNO & BORRELLO, P.A. Museum Tower -- Penthouse 2800 150 West Flagler Street Miami, FL 33130 Telephone: (305) 373-2101 Facsimile: (305) 373-2103 E-mail: hrussomanno@russomanno.com rborrello@russomanno.com herman2@russomanno.com DNATA US: Moore Suit Remanded to San Francisco Superior Court ------------------------------------------------------------- The lawsuit titled CHRISTIAN L. MOORE, Plaintiff v. DNATA US INFLIGHT CATERING LLC, et al., Defendants, Case No. 20-cv-08028-JD (N.D. Cal.), is remanded by the U.S. District Court for the Northern District of California to the Superior Court of the State of California for the County of San Francisco. Plaintiff Moore, on behalf of himself and a putative class of current and former employees, sued Defendant Dnata US Inflight Catering LLC for a variety of wage and hour claims under California state law. The complaint was originally filed in the San Francisco Superior Court, and was removed by dnata under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1332(d), and alternatively on federal question subject matter jurisdiction, 28 U.S.C. Sections 1331, 1441(a). A federal question is said to arise from the complete preemption of the state law employment claims by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Section 185(a), and the Railway Labor Act, 45 U.S.C. Sections 151, et seq. Mr. Moore has asked to remand the case. For CAFA, Moore says that dnata has not reasonably demonstrated that the amount in controversy meets the statutory threshold of $5 million. For the federal question theory, he says that the complaint alleges purely state law claims that do not require an interpretation of a collective bargaining agreement (CBA), and so the claims are not preempted or removable. District Judge James Donato notes that the parties' familiarity with the record is assumed--dnata has not plausibly demonstrated a reasonable possibility that the amount in controversy satisfies the CAFA threshold. With respect to the alternative theory of a federal question, removal was done improvidently and without subject matter jurisdiction, and the case is remanded to the Superior Court under 28 U.S.C. Sections 1447(c) and (d). The Court has detailed the standards for CAFA removal in a recent case, see Anderson v. Starbucks Corp., No. 3:20-cv-01178-JD, 2020 WL 7779015, at *2 (N.D. Cal. Dec. 31, 2020). Mr. Moore does not contest the minimum diversity of citizenship required under CAFA, nor does he contend that the putative class is less than 100 individuals. The complaint alleged a class of "over 75 Class Members," and dnata filed a declaration stating that its payroll records indicated that it employed "at least" 426 non-exempt workers, who fit the putative class definition in the pertinent time period, a headcount that Moore does not seriously question. The only disputed issue is whether dnata plausibly demonstrated that the amount in controversy exceeds the $5 million statutory threshold for CAFA jurisdiction. Judge Donato holds it did not. To start, Judge Donato opines, there is no presumption against removal when CAFA jurisdiction is at stake, as Moore seems to suggest. To establish the amount in controversy required for CAFA jurisdiction, a defendant need only plausibly show that it is reasonably possible that the potential liability exceeds $5 million. A plaintiff need not introduce extrinsic evidence to contest the defendant's estimates, Judge Donato notes. A plaintiff may rely entirely on a reasoned argument as to why any assumptions on which the defendant's numbers are based are not supported by evidence. That is what Moore has done here, Judge Donato points out. He disputes dnata's reasoning, without introducing new evidence of his own. Although the complaint alleges a variety of claims, dnata elected to estimate the CAFA jurisdictional amount based on waiting time penalties, wage statement penalties, and meal and rest break claims. It also factors in an estimated 25% recovery for attorney's fees. The problem that pervades dnata's estimate for the amount in controversy is that it assumes unreasonably high rates of violations, Judge Donato finds. For example, dnata posits a 100% violation rate for each putative class member for the waiting time penalties. It also assumes a 100% violation rate for the wage statement claims. Judge Donato opines that these two assumptions are essential to its jurisdictional argument, and together they account for the lion's share of dnata's estimate of the amount in controversy. Overall, Moore alleges only that some class members suffered some violations at some time during the class period. That is hardly grounds to infer a 100% violation rate for any of the claims, Judge Donato holds. dnata faults Moore for not providing "evidence" to counter the 100% violation rate assumption, but Moore was not required to do that, Judge Donato explains. Judge Donato points out that it was enough for him to rely on logic, fair inferences, and the allegations in the complaint, to critique dnata's arguments. Judge Donato also finds, among other things, that dnata's efforts to bolster its amount in controversy argument with the meal and rest break allegations, and attorney's fees, are equally unavailing. dnata rather randomly assumed a 20% meal and rest break violation rate, an assumption that is not tied to any evidence or the complaint, and appears to have been pulled out of thin air. If the 25% were limited to the meal and rest break penalties, the total would still be well short of $5 million. Because dnata has not shown that an interpretation of a labor contract is necessary to decide Moore's state law claims, complete preemption does not apply, Judge Donato holds. This same conclusion applies to the CBA provisions mentioned in the notice of removal, which again indicate nothing more than that the contracts may need to be consulted. Conclusion Hence, Judge Donato concludes that the case was improperly removed under CAFA, and removed without jurisdiction under 28 U.S.C. Section 1447(c). The case is remanded to the Superior Court of the State of California for the County of San Francisco. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/jvta7kpx from Leagle.com. EDEN ISLE: Skender Appeals Ruling in Labor Suit to 8th Circuit -------------------------------------------------------------- Plaintiff Stetson Skender filed an appeal from a court ruling entered in the lawsuit styled Stetson Skender, Individually and on Behalf of All Others Similarly Situated v. EDEN ISLE CORPORATION and GARY REDD, Case No. 4:20-cv-00054-BRW, in the U.S. District Court for the Eastern District of Arkansas - Central. As reported in the Class Action Reporter on Jan. 21, 2020, the lawsuit is brought against the Defendants for violation of the minimum wage and overtime requirements of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. According to the complaint, the Plaintiff frequently worked more hours than he was scheduled, and these hours often went unrecorded and uncompensated. The Plaintiff regularly worked over 40 hours in a week, and regularly failed to receive an overtime premium for hours worked over 40 in a week. The Defendant knew or should have known that its actions violated the requirements of the FLSA and the AMWA, says the complaint. The Plaintiff is now seeking a review of the Court's Order dated April 29, 2021, granting Defendants' motion for summary judgment; Order dated June 8, 2021, denying Plaintiff's motion to recuse; and Order dated July 14, 2021, granting in part and denying in part Plaintiff's motion to approve attorney fees. The appellate case is captioned as Stetson Skender v. Eden Isle Corporation, et al., Case No. 21-2556, in the United States Court of Appeals for the Eighth Circuit, filed on July 15, 2021. The briefing schedule in the Appellate Case states that: -- BRIEF OF APPELLANT, Eden Isle Corporation and Gary Redd is due on September 1, 2021; -- Appendix is due on September 1, 2021; -- Appellee/Cross Appellant brief due 30 days from the date the court issues the Notice of Docket Activity filing the appellant's brief.[BN] Plaintiff-Appellant Stetson Skender, Individually and on Behalf of All Others Similarly Situated, is represented by: Lydia Hicks Hamlet, Esq. SANFORD LAW FIRM P.O. Box 39 Russellville, AR 72811 Telephone: (479) 880-0088 E-mail: lydia@sanfordlawfirm.com - and - Josh Sanford, Esq. SANFORD LAW FIRM Kirkpatrick Plaza, Suite 510 10800 Financial Centre Parkway Little Rock, AR 72211 Telephone: (501) 221-0088 E-mail: josh@sanfordlawfirm.com Defendants-Appellees Eden Isle Corporation and Gary Redd are represented by: Daveante Jones, Esq. Jane A. Kim, Esq. Gary D. Marts, Jr., Esq. WRIGHT & LINDSEY 200 W. Capitol Avenue, Suite 2300 Little Rock, AR 72201-3699 Telephone: (501) 371-0808 E-mail: jkim@wlj.com ENBRIDGE US: Onshore Appeals Bid to Intervene Denial in Robertson ----------------------------------------------------------------- Movants Onshore Quality Control Specialist LLC and Avery Technical Resources Inc. filed an appeal from a court ruling entered in the lawsuit styled ZACHARIAH ROBERTSON, ANGEL HERNANDEZ, GORDON LUNSTED, and GREG HUGGINS individually and on behalf of all others similarly situated v. ENBRIDGE (U.S.) INC., CLEVELAND INTEGRITY SERVICES, INC. And CYPRESS ENVIRONMENTAL MANAGEMENT-TIR, LLC., Case No. 2-19-cv-01080, in the United States District Court for the Western District of Pennsylvania. On August 27, 2019, Plaintiff Robertson, on behalf of himself and all other similarly situated employees, filed a class and collective action lawsuit against Enbridge alleging violations of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Subsequently, Joshua Brimmer, Francisco Castro, Joseph Linsicombe, Deano Trott, and Merwin Hoover joined the action. Together, Robertson and the opt-in plaintiffs sought damages for unpaid wages, unpaid overtime compensation, liquidated damages, other damages, attorneys' fees and litigation costs under the FLSA and Pennsylvania wage and hour laws. The Movants are seeking a review of the Court's Order dated June 23, 2021, denying their motion to intervene. The appellate case is captioned as Zachariah Robertson, et al. v. Enbridge US Inc, et al., Case No. 21-2374, in the United States Court of Appeals for the Third Circuit, filed on July 23, 2021.[BN] Movants-Appellants ONSHORE QUALITY CONTROL SPECIALIST LLC and AVERY TECHNICAL RESOURCES INC. are represented by: Mary Fee, Esq. Joseph M. Sokolowski, Esq. FREDRIKSON & BYRON 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402 Telephone: (773) 710-6226 Plaintiffs-Appellees ZACHARIAH ROBERTSON, ANGEL HERNANDEZ, GREG HUGGINS, and GORDON LUNSTED, individually and on behalf of all others similarly situated, are represented by: Joshua P. Geist, Esq. William F. Goodrich, Esq. GOODRICH & GEIST 3634 California Avenue Pittsburgh, PA 15212 Telephone: (412) 281-1455 E-mail: josh@goodrichandgeist.com bill@goodrichandgeist.com - and - Richard Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza Houston, TX 77046 Telephone: (713) 877-8788 E-mail: rburch@brucknerburch.com - and - Matthew T. Logue, Esq. QUINN LOGUE 200 First Avenue, Third Floor Pittsburgh, PA 15222 Telephone: (412) 765-3800 Defendants-Appellees ENBRIDGE US INC., CYPRESS ENVIRONMENTAL MANAGEMENT TIR LLC, and CLEVELAND INTEGRITY SERVICES INC. are represented by: Shelly R. Pagac, Esq. PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI 301 Grant Street One Oxford Centre, 38th Floor Pittsburgh, PA 15219 Telephone: (412) 263-4343 E-mail: srp@pietragallo.com - and - John P. Phillips, Esq. Timothy M. Watson, Esq. SEYFARTH SHAW 700 Milam Street, Suite 1400 Houston, TX 77002 Telephone: (713) 225-2300 E-mail: jphillips@seyfarth.com twatson@seyfarth.com - and - Ryan O. Hemminger, Esq. LEECH TISHMAN FUSCALDO & LAMPL 525 William Penn Place, 28th Floor Pittsburgh, PA 15219 Telephone: (412) 261-1600 E-mail: rhemminger@leechtishman.com ENERGY SERVICES: Court Grants in Part Lindenbaum's Bid to Strike ---------------------------------------------------------------- The U.S. District Court for the Northern District of Ohio, Eastern Division, granted in part and denied in part the Plaintiff's motion to strike in the lawsuit captioned ROBERTA LINDENBAUM, Plaintiff v. ENERGY SERVICES PROVIDERS, INC., d/b/a OHIO GAS & ELECTRIC, et al., Defendants, Case No. 1:21-CV-00764 (N.D. Ohio). Plaintiff Lindenbaum has moved to strike certain affirmative defenses of Defendant Energy Services Providers, Inc., d/b/a Ohio Gas & Electric ("Ohio G&E"). Ohio G&E opposes Lindenbaum's Motion. Background On April 11, 2021, Lindenbaum filed a putative class action against Ohio G&E and John Doe Corporations 1-10, setting forth a single claim for violation of the Telephone Consumer Protection Act ("TCPA"). Lindenbaum alleges that Ohio G&E and/or its agents, John Doe Corporations 1-10, placed one unsolicited, pre-recorded phone call to her residential landline telephone. Ohio G&E filed its Answer on May 3, 2021. In its Answer, Ohio G&E asserted 31 affirmative defenses, 29 of which Lindenbaum moves to strike: 1. Plaintiff's Complaint fails to state a claim upon which relief can be granted; 2. Plaintiff's Complaint is barred to the extent it purports to bring claims on behalf of any individuals other than Roberta Lindenbaum because she is the only named Plaintiff and the Complaint fails to state a claim for class action certification under Fed. R. Civ. P. 23; 3. Plaintiff's claims are barred, in whole or part, by the applicable statute of limitations; 4. Plaintiff lacks standing to bring this action because she has not suffered an injury-in-fact as a result of any conduct by Defendant; 5. Plaintiff failed to join necessary and/or indispensable parties; 6. Plaintiff is not the real party in interest; 7. The imposition of statutory damages against Defendant under the TCPA would violate the Due Process Provision of the United States Constitution; 8. Plaintiff's claims are barred to the extent she is not a called party within the meaning of the TCPA; 9. Plaintiff's claims are barred because any telephone calls alleged to have violated the TCPA occurred with prior consent. [. . .]; 11. Plaintiff has an established business relationship with Defendant; 12. Defendant acted in good faith, and has established procedures, to avoid any violations of the law. Any violations of the law were the result of a bona fide error; 13. Defendant did not cause any telephone calls to be placed to Plaintiff using an ATDS as that term is defined by 47 U.S.C. Section 227(a)(1) and applicable law; 14. Plaintiff's claims are barred to the extent that any alleged injuries were the result, in whole or in part, of the conduct, negligence, acts, or omissions of Plaintiff or the putative class members; 15. Plaintiff's claims are barred by the doctrines of unclean hands, laches, waiver, estoppel and equity; 16. To the extent there was any violation of the TCPA by Defendant, which Defendant denies, Defendant shall be liable for no more than a $500.00 penalty as Plaintiff has not sustained any actual monetary loss pursuant to 47 U.S.C. Section 227(b)(3)(B). [. . .]; 18. The statutory damages provisions of the TCPA violate the safeguards guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution of the United States, in addition to violating the due process clause of the Fifth and Fourteenth Amendments, because they constitute excessive fines and are grossly disproportionate to any actual harm that may be suffered by Plaintiff and the putative class members; 19. Claims of the putative classes are barred, in whole or part, by the applicable statute of limitations; 20. The Court lacks jurisdiction over the claims of the putative class; 21. The putative class should not be certified because the case would be unmanageable if the classes as defined by the Complaint were to be certified; 22. The putative class should not be certified because common issues of law and fact do not exist as required by Fed. R. Civ. P. 23(a)(2); 23. The putative class should not be certified because the claims of Plaintiff are not typical as required by Fed. R. Civ. P. 23(a)(3); 24. The putative class should not be certified because Plaintiff is not an adequate class representative as required by Fed. R. Civ. P. 23(a)(4); 25. The putative class should not be certified because common questions of law and fact do not predominate as required by Fed. R. Civ. P. 23(b)(3); 26. The putative class should not be certified because individual questions of law and fact predominate over issues common to the putative classes; 27. A class action should not be certified because it is not the superior method to adjudicate this controversy because the facts and circumstances of each putative class member differ; 28. The putative class members lack standing to bring this action because they have not suffered an injury-in-fact as a result of any conduct by Defendant; 29. Plaintiff's Complaint should be dismissed because it improperly seeks to certify individualized claims for money relief under Fed. R. Civ. P. 23(b)(2); 30. A class action should not be certified because notice cannot be reasonably sent; and 31. A class action should not be certified because the class as defined is an improper fail-safe class requiring individual inquiry about whether each putative class member consented to receive telephone calls. On May 8, 2021, Lindenbaum moved to strike 29 of Ohio G&E's affirmative defenses, specifically affirmative defenses 1-9, 11-16, and 18-31 (i.e., all of Ohio G&E's affirmative defenses except for numbers 10 and 17). Ohio G&E filed a Brief in Opposition to Lindenbaum's Motion on May 24, 2021. Lindenbaum did not file a Reply in Support of her Motion. To survive Lindenbaum's Motion to Strike, Ohio G&E's affirmative defenses need only provide Lindenbaum with fair notice of the nature of the defense, District Judge Pamela A. Barker notes. For reasons set forth in this Order, the Court strikes affirmative defenses 4 and 28. The Court declines to strike affirmative defenses 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, and 31. Affirmative Defenses 4 and 28 Ohio G&E asserts that Lindenbaum and any putative class members lack standing because none of them have suffered an injury-in-fact as a result of Ohio G&E's conduct. However, standing is not an affirmative defense that must be raised as risk of forfeiture, Judge Barker holds, citing Community First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994). Rather, standing is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court. Hence, the Court strikes Ohio G&E's affirmative defenses 4 and 28. Remaining Affirmative Defenses The Court declines to strike the remaining affirmative defenses at issue, 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, and 31. With respect to affirmative defenses 1 and 2, the failure-to-state-a-claim defense may be raised in any pleading allowed or ordered under Rule 7(a). Thus, Ohio G&E may raise such a defense in its Answer. Accordingly, the Court declines to strike these affirmative defenses. With respect to affirmative defenses 3, 5, 6, 8, 9, 11, 122, 13, 14, 15, 19, 203, 21, 22, 23, 24, 25, 26, 27, 29, 30 and 31, the Court concludes that each of these affirmative defenses involve factual determinations best considered on summary judgment, after the completion of fact discovery. Further, Lindenbaum fails to demonstrate how these affirmative defenses have no possible relation to the controversy at hand. Accordingly, the Court declines to strike these affirmative defenses. With respect to affirmative defenses 7 and 18, the Court concludes that Lindenbaum fails to show that they have no possible relation to the controversy. Further, Ohio G&E's failure to comply with L.R. 24.1, Procedure for Notification of Any Claim of Unconstitutionality, does not waive the constitutional issues that Ohio G&E raises in affirmative defenses 7 and 18, Judge Barker points out. With respect to affirmative defense 16, the Court concludes that Lindenbaum seeks both actual and statutory damages. Therefore, Ohio G&E's affirmative defense that Lindenbaum suffered no actual damage should not be stricken. Conclusion For the reasons set forth, Lindenbaum's Motion to Strike is granted in part and denied in part. The Court grants Lindenbaum's Motion to Strike Ohio G&E's affirmative defenses 4 and 28. The Court denies Lindenbaum's Motion to Strike Ohio G&E's affirmative defenses 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, and 31. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/xzwupjxx from Leagle.com. ENVISION HEALTHCARE: Court Narrows Claims in Linde Suit ------------------------------------------------------- In the class action lawsuit captioned as NORMA LINDE, individually and on behalf of all others similarly situated, v. ENVISION HEALTHCARE CORP., et al., Case No. 2:20-cv-02661-HLT-TJJ (D. Kan.), the Hon. Judge Holly L. Teeter entered an order that: 1. the Defendants' Partial Motion to Dismiss and to Strike Class and Collective Allegations is denied in part and granted in part; 2. the Defendants' motion is denied without prejudice as to Count III and granted as to Count IV to the extent the Plaintiff seeks unpaid overtime under the Kansas Wage Payment Act (KWPA); 3. the Defendants' motion is denied as to the request to strike class and collective allegations. The Court said, "But as Plaintiff notes, the amended complaint contends that Defendants maintained a company-wide policy of only paying employees for the hours listed on their pre-scheduled shifts instead of hours actually worked, and as a result, Plaintiff and other employees were not paid for all hours worked and "were not paid time-and-a-half for all time in excess of 40 hours in a given week, in violation of the FLSA." Accordingly, if accepted as true, this would entitle the proposed class, including employees "who worked more than 40 hours in a workweek," to relief under the FLSA. To the extent Defendants seek to challenge Plaintiff’s collective claims under the FLSA, that is an issue more appropriately addressed in the two-step certification procedure routinely employed in collective FLSA actions. It would be premature to address these issues on the very cursory arguments advanced by Defendants. Accordingly, Defendants' motion is denied to the extent it seeks to strike the collective claims under Count I (FLSA)." Envision Healthcare is an American healthcare company and national hospital-based physician group. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/37cW3Ru at no extra charge.[CC] EQUIFAX INC: Consumer Class Suits in Georgia State Court Stayed --------------------------------------------------------------- Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the class action suits pending before the Fulton County Business Court in Georgia remains stayed. In 2017, the company experienced a cybersecurity incident following a criminal attack on its systems that involved the theft of certain personally identifiable information of U.S., Canadian and U.K. consumers. Following the 2017 cybersecurity incident, hundreds of class actions and other lawsuits were filed against us typically alleging harm from the incident and seeking various remedies, including monetary and injunctive relief. Four putative class actions arising from the 2017 cybersecurity incident were filed against us in Fulton County Superior Court and Fulton County State Court in Georgia based on similar allegations and theories as alleged in the U.S. Consumer MDL Litigation and seek monetary damages, injunctive relief and other related relief on behalf of Georgia citizens. These cases were transferred to a single judge in the Fulton County Business Court and three of the cases were consolidated into a single action. On July 27, 2018, the Fulton County Business Court granted the Company's motion to stay the remaining single case, and on August 17, 2018, the Fulton County Business Court granted the Company's motion to stay the consolidated case. These cases remain stayed pending final resolution of the U.S. Consumer MDL Litigation. No further updates were provided in the Company's SEC report. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. EQUIFAX INC: Putative Class Suits in Canada Underway ---------------------------------------------------- Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend class action suits in Ontario, British Columbia and Alberta, Canada. Five putative Canadian class actions, four of which are on behalf of a national class of approximately 19,000 Canadian consumers, are pending against the company in Ontario, British Columbia and Alberta. Each of the proposed Canadian class actions asserts a number of common law and statutory claims seeking monetary damages and other related relief in connection with the 2017 cybersecurity incident. In addition to seeking class certification on behalf of Canadian consumers whose personal information was allegedly impacted by the 2017 cybersecurity incident, in some cases, plaintiffs also seek class certification on behalf of a larger group of Canadian consumers who had contracts for subscription products with Equifax around the time of the incident or earlier and were not impacted by the incident. On December 13, 2019, the court in Ontario granted certification of a nationwide class that includes all impacted Canadians as well as Canadians who had subscription products with Equifax between March 7, 2017 and July 30, 2017 who were not impacted by the incident. The company appealed one of the claims on which a class was certified and on June 9, 2021, the company's appeal was granted by the Ontario Divisional Court. The plaintiff has since filed a notice of further appeal. All remaining purported class actions are at preliminary stages or stayed. Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. EQUIFAX INC: Settlement in Data Breach Suit Under Appeal -------------------------------------------------------- Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the appeal on the settlement in the U.S. consolidated consumer class action cases, captioned In re: Equifax, Inc. Customer Data Security Breach Litigation, MDL No. 2800, is pending. In 2017, the company experienced a cybersecurity incident following a criminal attack on its systems that involved the theft of certain personally identifiable information of U.S., Canadian and U.K. consumers. Following the 2017 cybersecurity incident, hundreds of class actions and other lawsuits were filed against us typically alleging harm from the incident and seeking various remedies, including monetary and injunctive relief. On July 19, 2019 and July 22, 2019, the company entered into multiple agreements that resolve the U.S. consolidated consumer class action cases, captioned In re: Equifax, Inc. Customer Data Security Breach Litigation, MDL No. 2800, and the investigations of the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), the Attorneys General of 48 states, the District of Columbia and Puerto Rico (the "MSAG Group") and The New York State Department of Financial Services (NYDFS). Under the terms of the Consumer Settlement, the Company will contribute $380.5 million to a non-reversionary settlement fund (the "Consumer Restitution Fund") to provide restitution for U.S. consumers identified by the Company whose personal information was compromised as a result of the 2017 cybersecurity incident as well as to pay reasonable attorneys' fees and reasonable costs and expenses for the plaintiffs' counsel in the U.S. Consumer MDL Litigation (not to exceed $80.5 million), settlement administration costs and notice costs. The Company has agreed to contribute up to an additional $125.0 million to the Consumer Restitution Fund to cover certain unreimbursed costs and expenditures incurred by affected U.S. consumers in the event the $380.5 million in the Consumer Restitution Fund is exhausted. The Company also agreed to various business practice commitments related to consumer assistance and its information security program, including conducting third party assessments of its information security program. On January 13, 2020, the Northern District of Georgia, the U.S. District Court overseeing centralized pre-trial proceedings for the U.S. Consumer MDL Litigation and numerous other federal court actions relating to the 2017 cybersecurity incident, entered an order granting final approval of the settlement in connection with the U.S. Consumer MDL Litigation. The MDL Court entered an amended order granting final approval of the settlement (the "Final Approval Order") on March 17, 2020. Several objectors appealed the Final Approval Order to the U.S. Court of Appeals for the Eleventh Circuit. On June 3, 2021, the Eleventh Circuit issued an order reversing the MDL Court's grant of incentive awards to class representatives, but affirming all other aspects of the Final Approval Order. Several objectors have filed petitions with the Eleventh Circuit seeking both a rehearing by the three-judge panel and a rehearing by the entire Eleventh Circuit. Equifax said, "Until the appeals are finally adjudicated or dismissed, we can provide no assurance that the U.S. Consumer MDL Litigation will be resolved as contemplated by the settlement agreement. If the MDL Court's order approving the settlement is reversed by an appellate court, there is a risk that we would not be able to settle the U.S. Consumer MDL Litigation on acceptable terms or at all, which could have a material adverse effect on our financial condition and results of operations." Equifax Inc. provides information solutions and human resources business process outsourcing services for businesses, governments, and consumers. The company operates through four segments: U.S. Information Solutions (USIS), International, Workforce Solutions, and Global Consumer Solutions. Equifax Inc. was founded in 1899 and is headquartered in Atlanta, Georgia. ERIC BRADLEY: Hunt Petition for Writ of Habeas Corpus Junked ------------------------------------------------------------ In the class action lawsuit captioned as DORSEY HUNT v. WARDEN ERIC BRADLEY, Case No. 3:21-cv-00055-RDM-CA (M.D. Pa.), the Court entered an order that: 1. Hunt's petition for writ of habeas corpus is dismissed without prejudice. 2. The Petitioner's motion to amend the traverse is granted and the amended traverse is accepted as filed. 3. The motion to appoint counsel and for class certification is dismissed as moot. 4. The Clerk of Court is directed to close this case. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3xc24Zl at no extra charge.[CC]a FEDCAP REHABILITATION: King Seeks Conditional Collective Status --------------------------------------------------------------- In the class action lawsuit captioned as HAROLD KING, on behalf of himself, FLSA Collective Plaintiffs and the Class, v. FEDCAP REHABILITATION SERVICES, INC., and WILDCAT SERVICE CORPORATION, Case No. 1:20-cv-01784-VSB (S.D.N.Y.), the Plaintiff asks the Court to enter an order granting his motion for conditional collective certification and for court facilitation of notice pursuant to 29 u.s.c. section 216(b). Fedcap is a Manhattan-based not-for-profit organization that provides vocational training and employment resources to those who face barriers to employment such as people with all kinds of disabilities and employment-related barriers. A copy of the Plaintiff's motion dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/2WvqaBA at no extra charge.[CC] The Attorneys for Plaintiff, FLSA Collective Plaintiffs and the Class, are: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 FEDERATION INTERNATIONALE: Shields Class Cert Reply Due Sept. 1 --------------------------------------------------------------- In the class action lawsuit captioned as THOMAS A. SHIELDS, MICHAEL C. ANDREW, and KATINKA HOSSZU, on behalf of themselves and all others similarly situated, v. FEDERATION INTERNATIONALE DE NATATION, Case No. 3:18-cv-07393-JSC (N.D. Cal.), the Hon. Magistrate Judge Jacqueline Scott Corley entered an order granting modified stipulation to extend the deadline for the Plaintiffs' Reply in Support of Plaintiffs' Motion for Class Certification to September 1, 2021. On May 21, 2021, the Court issued an Order adopting the parties' stipulation. On June 29, 2021, Defendant filed its Opposition to Plaintiffs' Motion for Class Certification. Due to Dr. Rascher's and counsel's schedules, the parties require further extension of the Reply deadline. The parties conferred and agreed to extend the deadline for the Reply to September 1, 2021. The parties defer to the Court regarding a new date for the motion hearing, currently set for August 12, 2021. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3ypyJMF at no extra charge.[CC] The Plaintiff is represented by: Richard M. Heimann, Esq. Eric B. Fastiff, Esq. Caitlin M. Nelson, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: rheimann@lchb.com efastiff@lchb.com cnelson@lchb.com FEDEX GROUND: Cuadra Suit Seeks to Certify Class Action ------------------------------------------------------- In the class action lawsuit captioned as ERNEST CUADRA on behalf of himself and others similarly situated, v. FEDEX GROUND PACKAGE SYSTEM, INC., et al., Case No. 2:20-cv-10719-JFW-SK (C.D. Cal.), the Plaintiff asks the Court to enter an order certifying case as class action pursuant to the Federal Rules of Civil Procedure 23(a) and 23(b)(3). The plaintiff class consists of the following: 1. Unpaid Security Screening Class a. Pre-September 29, 2019 Security Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019 and September 28, 2019." b. Post-September 28, 2019 Security Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between September 29, 2019, through the date of certification." 2. Meal Class a. Impeded or Discouraged Meal class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019, through the date of certification that worked any shift of over 6 work hours and their time record reflects a meal break." b. Short Meal Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019, through the date of certification that worked any shift of over 6 work hours and their time record reflects a meal break of 31-minutes or less." 3. Rest Class a. Impeded or Discouraged Rest Class: "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019, through the date of certification that worked any shift of over 3.5 work hours." b. Short Rest Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019, through the date of certification that worked any shift of over 3.5 work hours." 4. Wage Statement Class: a. Pre-September 29, 2019 Wage Statement Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019 and September 28, 2019." b. Post-September 28, 2019 Wage Statement Class "All hourly non-exempt employees, excluding delivery or driver employees, employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between September 29, 2019, through the date of certification." 5. Final Wage Class a. Pre-September 29, 2019 Final Wage Class: "All former hourly non-exempt employees employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between March 6, 2019 and September 28, 2019." b. Post-September 28, 2019, Final Wage Class: "All former hourly non-exempt employees employed by FedEx Ground Package System, Inc. at any facility that had a Security Screening process any time between September 29, 2019, through the date of certification." In addition, the Plaintiff requests that the Court appoint him as Class Representative. The Plaintiff also requests that the Court appoint their counsel, Joseph Lavi and Jordan D. Bello of Lavi & Ebrahimian, LLP as Class Counsel. Fedex Ground provides package delivery services. The Company delivers packages by truck to residential and business addresses. A copy of the Plaintiff's motion to certify class dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3BSrVsH at no extra charge.[CC] The Plaintiff is represented by: Joseph Lavi, Esq. Jordan D. Bello, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 E-mail: jlavi@lelawfirm.com jbello@lelawfirm.com FILTERS FAST: Loses Bids to Dismiss McCreary Suit Over Data Breach ------------------------------------------------------------------ The U.S. District Court for the Western District of North Carolina, Charlotte Division, denies the Defendant's motions to dismiss the lawsuit styled JENNIFER McCREARY, BETTY OWEN, and LYDIA POSTOLOWSKI, on behalf of themselves and all others similarly situated, Plaintiffs v. FILTERS FAST LLC, Defendant, Case No. 3:20-cv-595-FDW-DCK (W.D.N.C.). The matter is before the Court on Defendant Filters Fast LLC's Motions to Dismiss. One motion was filed prior to the Amended Complaint, and upon filing of the Amended Complaint, Defendant renewed their motions separately seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The motions have been fully briefed by the parties and are now ripe for review. Background According to the Complaint, the Defendant is an online retailer of home filtration products based out of North Carolina. The Plaintiffs purchased merchandise from the Defendant's website between August 2019 and July 2020. Subsequently, each Plaintiff received a letter from the Defendant dated Aug. 18, 2020, titled "Notice of Data Breach." Since receipt of this notice, the Plaintiffs have allegedly experienced fraud and security issues surrounding the payment cards and personal information used to purchase merchandise on the Defendant's site. The Plaintiffs allege the sharing and use of their personal and financial information. For example, Plaintiff Postolowski alleges that an unauthorized charge was attempted on her card in August 2020. In addition to injury in the form of fraudulent charges and compromise of their personal information, the Plaintiffs allege several injuries, including unauthorized charges on their payment card accounts, theft of their personal and financial information, costs associated with the detection and prevention of identity theft and unauthorized use of their financial accounts and loss of use of and access to their account funds and costs. The Plaintiffs filed the Complaint against Defendant Filters Fast, LLC, on behalf of themselves and all others similarly situated, for the Defendant's alleged: (a) refusal to take adequate and reasonable measures to ensure its data systems were protected; (b) refusal to take available steps to prevent the breach from happening; (c) failure to disclose to its customers the material fact that it did not have adequate computer systems and security practices to safeguard customers' personal and financial information; and (d) failure to provide timely and adequate notice of the data breach. The Plaintiffs now seek to hold the Defendant liable for: (1) violation of North Carolina Unfair and Deceptive Trade Practices Act; (2) negligence; (3) negligence per se; (4) breach of implied contract; (5) unjust enrichment; (6) declaratory relief; (7) violation of California's Unfair Competition Law; (8) violation of the California Consumer Privacy Act; and (9) violations of the Florida Unfair and Deceptive Trade Practices Act. The Defendant has moved to dismiss all counts, both for lack of standing and failure to state a claim. It relies on Rules 12(b)(1) and 12(b)(6) to support both Motions to Dismiss. Standing The Defendant asserts that the Plaintiffs do not have standing and, therefore, the Court lacks subject matter jurisdiction over their claims. As an initial matter, the Court summarily denies as moot the Defendant's original motion to dismiss that was filed prior to the Amended Complaint and instead focuses the analysis on the motion filed in response to the Amended Complaint. Though the Plaintiffs have not alleged economic injury resulting directly from the fraudulent charges, they do allege that there was actual misuse of their personal information. These allegations of actual misuse bring the actual and threatened harm alleged by the Plaintiffs out of the realm of speculation and into the realm of sufficiently imminent and particularized harm, District Judge Frank D. Whitney holds. The Plaintiffs allege they made purchases on the Defendant's site during the time of the breach, their personal information was stolen during this transaction, and hackers, who breached its site, subsequently accessed and misused their personal information. Taking the allegations as true, Judge Whitney opines that the Plaintiffs have alleged the Defendant failed to properly secure their personal information and this failure resulted in the theft and misuse of their personal information. Therefore, the complaint sufficiently alleges that there is a genuine nexus between the alleged injury and the data breach, and a jury could reasonably find it is plausible that the Defendant was the cause of the alleged injury. While the Defendant may ultimately show this injury was not caused by the data breach, that argument is more appropriate for a jury, Judge Whitney points out. In sum, the factual allegations of the Plaintiffs' complaint set forth plausible allegations that the Defendant's data breach is the source of the Plaintiffs' injury, therefore, satisfying the fairly traceable requirement of standing. The Court also finds that if the Plaintiffs succeed on the merits of the case, then a favorable decision from the court awarding damages could redress these alleged injuries. Remaining Alleged Injuries The Court summarily finds that the Plaintiffs have made sufficient allegations to set forth an imminent threat of the injury, based on the actual access and use of their stolen data, to confer Article III standing for these injuries: a. unauthorized charges on their payment card accounts; b. costs associated with the detection and prevention of identity theft and unauthorized use of their financial accounts, as well as costs associated with mitigating the actual and future consequences of the data breach; c. loss of use of and access to their account funds and costs associated with inability to obtain money from their accounts or being limited in the amount of money they were permitted to obtain from their accounts; d. the imminent and impending injury flowing from potential fraud and identity theft and the continued risk to the Plaintiffs' personal information; e. damages to and diminution in value of their personal and financial information; and f. money paid to Filters Fast during the period of the data breach that the Plaintiffs would not have paid had the Defendant disclosed it lacked adequate systems to safeguard the Plaintiffs' personal information. The Court summarily finds that the Plaintiffs do not have standing to sue for alleged injuries arising out of the "continued risk to their personal information and PCD, which remains in the possession of Filters Fast and which is subject to further breaches so long as Filters Fast continues to fail to undertake appropriate and adequate measures to protect Plaintiffs' and Class Members' data in its possession." Unlike the asserted injury of imminent and impending injury flowing from potential fraud and identity theft and the continued risk to the Plaintiffs' personal information arising from the data breach that already occurred, including the access and use of the Plaintiffs' stolen data, this future injury--that some other hacker or data thief might access their personal data stored by the Defendant--requires speculation that the Defendant's data storage is likely to be retargeted simply because it has previously been hacked, Judge Whitney notes. He adds that this asserted injury hinges on a speculative increased risk of future identity theft. Indeed, even if the Plaintiffs' data was again stolen from the Defendant, the mere theft of these items, without more, cannot confer Article III standing. Failure to State a Claim After reviewing the Complaint, the Court summarily denies the Defendant's 12(b)(6) Motion to Dismiss on all counts. This ruling is without prejudice, and the Defendant may reassert any arguments, if applicable, at summary judgment. Conclusion Therefore, the Defendant's 12(b)(1) and 12(b)(6) Motions to Dismiss are denied. The Defendant's Motion to Dismiss is denied as moot. The Court finds it necessary to expedite certain deadlines so that a case management order can be issued and discovery can commence. The Defendant will file its Answer to the Amended Complaint within fourteen (14) days from the date of this Order. Following the filing of the Answer, the parties will have fourteen (14) days to confer pursuant to Rule 26 of the Federal Rules of Civil Procedure and seven (7) days after the conference to submit their Certificate of Initial Attorney Conference Form. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/3z8z6cvn from Leagle.com. FIRST CREDIT: Simmons Must File Class Cert. Bid by November 1 ------------------------------------------------------------- In the class action lawsuit captioned as SCARLETT SIMMONS v. FIRST CREDIT SERVICES, INC., Case No. 3:21-cv-00186-REP (E.D. Va.), the Hon. Judge Robert E. Payne entered an order that: 1. the class certification discovery shall be completed by October 11, 2021; 2. the plaintiff shall file a Motion for Class Certification and brief on November 1, 2021; 3. the defendant shall file a response to the Motion for Class Certification on November 22, 2021; 4. the plaintiff shall file a reply on the issue of class certification on December 3, 2021; and 5. oral argument on the Motion for Class Certification shall be held on January 11, 2022 at 10:00 AM. First Credit is a BPO company that specializes in accounts receivables management and customer service outsourcing. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3icIPuh at no extra charge.[CC] FIRST TRANSIT: C.D. California Refuses to Remand Azimihashemi Suit ------------------------------------------------------------------ The U.S. District Court for the Central District of California denies the Plaintiff's motion to remand to the Superior Court of the State of California for the County of Orange the lawsuit styled MASSOUD AZIMIHASHEMI, individually and on behalf of other members of the general public similarly situated, Plaintiff v. FIRST TRANSIT SERVICES, INC., an unknown business entity; FIRST TRANSIT, INC., an unknown business entity; FIRST GROUP AMERICA, an unknown business entity; and DOES 1 through 100, inclusive, Defendants, Case No. 8:21-cv-00780-JWH-JDEx (C.D. Cal.). On Feb. 24, 2021, Azimihashemi filed this action in the Superior Court of California for the County of Orange, asserting 10 causes of action under various California labor statutes. Defendant First Transit, Inc. removed the action to this Court on April 26, 2021, under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d) ("CAFA"). Azimihashemi moved to remand on May 26, 2021. First Transit opposed the Motion and filed supporting documents on June 11, 2021. Azimihashemi replied in support of his Motion on June 18, 2021. First Transit and Defendants First Transit Services, Inc., and FirstGroup America employed Azimihashemi, a California resident, as an hourly-paid, non-exempt employee from December 2019 to March 2020. Mr. Azimihashemi seeks to represent a proposed class defined as: * Class: All current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment and who reside in California; * Subclass A: All current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment who were subject to Defendants' practice of rounding time recorded for compensation of regular/overtime wages and who reside in California; * Subclass B: All current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment who were required by Defendants to stay on Defendants' premises for rest breaks and who reside in California; and * Subclass C: All current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment who received overtime compensation at a rate lower than their respective regular rate of pay because Defendants failed to include all non-discretionary bonuses or other incentive-based compensation in the calculation of the regular rate of pay for overtime pay purposes and who reside in California. Mr. Azimihashemi does not know the number of class members, but he estimates it to be greater than 50 individuals. According to the complaint, the Defendants failed to compensate Azimihashemi and other proposed class members for all hours worked and missed meal and rest periods. The Plaintiffs worked for the Defendants over eight hours a day and/or 40 hours a week. The Defendants did not: pay the Plaintiffs minimum wage for all hours worked, did not provide the Plaintiffs with complete and accurate wage statements, did not keep complete and accurate payroll records, failed to pay all wages owed to the Plaintiffs upon their respective discharges or resignations, failed to reimburse for all necessary business-related expenses and costs, and failed to pay the Plaintiffs promptly. First Transit asserted in its Notice of Removal that removal under CAFA was justified because the proposed class has over 100 members; First Transit and FirstGroup are both citizens of both Delaware and Ohio; and the amount in controversy exceeds $5 million. First Transit removed this action to this Court pursuant to 28 U.S.C. Section 1441, asserting jurisdiction under CAFA. Thus, First Transit bears the burden of establishing that this Court has original subject matter jurisdiction over this action. Under CAFA, the Court has "original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which" there is minimal diversity. District Judge John W. Holcomb notes that as a threshold matter, Azimihashemi does not dispute that minimal diversity exists, as required by CAFA. The only jurisdictional dispute concerns to the amount-in-controversy requirement under CAFA. In its Notice of Removal, First Transit asserts that the amount in controversy in this case exceeds $5 million. Mr. Azimihashemi alleges that First Transit improperly denied the Plaintiffs "all requisite uninterrupted meal and rest periods." The penalty for each missed period is one hour of wages. First Transit analyzed the pay data of 5,780 employees employed during the class period; when multiplied by the length of the class period and the average hourly pay, the penalty for the second and third causes of action alone exceeds $5 million. In its Opposition, First Transit supported these figures with a declaration by its payroll director, Tara Blessing. Mr. Azimihashemi argues that the Blessing Declaration is insufficient evidence. But this and other courts have found that in similar CAFA removal cases, a declaration from the defendant's payroll director is sufficient evidence when a plaintiff does not submit any evidence in opposition, Judge Holcomb opines, citing Vasquez v. RSI Home Prod., Inc., 2020 WL 6778772, at *4 (C.D. Cal. Nov. 12, 2020). Mr. Azimihashemi further asserts that the Blessing Declaration incorrectly assumes that First Transit's assumption of a 100% violation rate is baseless. But he offers no alternative violation rate, and the Complaint itself alleges a 100% violation rate, Judge Holcomb notes. As the Court has previously pointed out, Azimihashemi likely worded the Complaint extremely broadly on purpose, in order to seek justice for the maximum number of people. It is, therefore, reasonable to look to this wording when determining the alleged violation rate, Judge Holcomb holds. Thus, Azimihashemi's second and third claims for relief alone allege an amount in controversy sufficient for CAFA removal. The Court need not analyze Azimihashemi's other causes of action; however, to the extent that First Transit was over-inclusive in its calculations of damages, it is likely that the remaining claims for relief will lead to an amount in controversy exceeding $5 million. For the reasons stated, the Court denies Azimihashemi's Motion to Remand. A full-text copy of the Court's order dated July 15, 2021, is available at https://tinyurl.com/42sjue78 from Leagle.com. FIRSTENERGY CORP: Discovery in Emmons Putative Class Suit Ongoing ----------------------------------------------------------------- FirstEnergy Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the putative class action suit entitled, Emmons v. FirstEnergy Corp. et al. (Common Pleas Court, Cuyahoga County, OH). On August 4, 2020, a purported customer of FirstEnergy filed a putative class action lawsuit against the company (FE), FirstEnergy Service Company (FESC), Ohio Edison Company (OE), The Toledo Edison Company (TE) and The Cleveland Electric Illuminating Company (CEI), along with Energy Harbor LLC. (FES), alleging several causes of action, including negligence and/or gross negligence, breach of contract, unjust enrichment, and unfair or deceptive consumer acts or practices. On October 1, 2020, plaintiffs filed a First Amended Complaint, adding as a plaintiff a purported customer of FirstEnergy and alleging a civil violation of the Ohio Corrupt Activity Act and civil conspiracy against FE, FESC and FES. On May 4, 2021, the court granted the defendants' motion to dismiss plaintiffs' breach of contract claims and denied the remainder of the motions to dismiss. The defendants submitted answers to the complaint on June 1, 2021. Discovery is proceeding. FirstEnergy Corp. operates as a public utility holding company. The Company, through its subsidiaries, generates, transmits, and distributes electricity, as well as offers exploration, production, and distribution of natural gas. FirstEnergy provides energy management and other energy-related services. The company is based in Akron, Ohio. FIRSTENERGY CORP: DIscovery Ongoing in Ohio Consolidated Class Suit ------------------------------------------------------------------- FirstEnergy Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that discovery is ongoing in the consolidated class action suit currently pending in the Southern District of Ohio. Smith v. FirstEnergy Corp. et al., Buldas v. FirstEnergy Corp. et al., and Hudock and Cameo Countertops, Inc. v. FirstEnergy Corp. et al. (Federal District Court, S.D. Ohio); on July 27, 2020, July 31, 2020, and August 5, 2020, respectively, purported customers of FirstEnergy filed putative class action lawsuits against the company (FE) and FirstEnergy Service Company (FESC), as well as certain current and former FirstEnergy officers, alleging civil Racketeer Influenced and Corrupt Organizations Act violations and related state law claims. These actions have been consolidated, and the court denied FirstEnergy's motions to dismiss and stay discovery on February 10 and 11, 2021, respectively. The defendants submitted answers to the complaint on March 10, 2021. Discovery is proceeding. FirstEnergy Corp. operates as a public utility holding company. The Company, through its subsidiaries, generates, transmits, and distributes electricity, as well as offers exploration, production, and distribution of natural gas. FirstEnergy provides energy management and other energy-related services. The company is based in Akron, Ohio. FORD MOTOR: Beaty Appeals Ruling in Defective Sunroof Case ----------------------------------------------------------- Plaintiffs Jacob Beaty, et al., filed an appeal from a court ruling entered in the lawsuit styled JACOB BEATY, JESSICA BEATY, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants v. FORD MOTOR COMPANY, Defendant-Appellee, Case No. 3:17-cv-05201-TSZ, in the U.S. District Court for the Western District of Washington, Tacoma. Ford started manufacturing cars with panoramic sunroofs ("PSRs") in 2007, and soon after began receiving complaints from customers who alleged that their PSRs exploded without warning. It later added PSRs to the Ford Escape model line. In 2017, Jessica Beaty was driving her 2013 Ford Escape when the sunroof suddenly shattered for no apparent reason, causing glass to fall on Jessica and her infant daughter. After the incident, the Beatys filed a putative class action complaint against Ford, asserting claims for fraudulent concealment under Washington common law and violations of the Washington Consumer Protection Act ("CPA"), Wash. Rev. Code Section 19.86.010 et seq. The Beatys appealed the district court's determinations that a reasonable factfinder could not conclude: (1) that Ford knew about the risk that its PSRs could spontaneously explode on the 2013 Ford Escape, the first Escape model to include a PSR option; and (2) that the tendency of Ford PSRs to spontaneously explode is not a material defect. As reported in the Class Action Reporter on April 15, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's grant of summary judgment in favor of Defendant-Appellee Ford. The Ninth Circuit concluded that there is a triable issue of material fact regarding whether Ford knew about the risk that PSRs in its 2013 Ford Escape model would spontaneously shatter. Under Washington law, a common-law fraudulent concealment claim requires that "the vendor has knowledge of the concealed defect." Similarly, under the CPA, a duty to disclose arises only when the seller has knowledge of a latent defect. Pre-sale customer complaints to both Ford and the National Highway Traffic Administration ("NHTSA") create a triable issue as to whether Ford knew that its PSRs were prone to spontaneously explode under ordinary use. Under Washington law, pre-sale complaints can "amount to knowledge" of the defect. Where pre-sale complaints are made directly to the manufacturer, and therefore a court can be sure that the manufacturer defendant received them, the complaints are circumstantial evidence that the defendant is on notice of the defect. Viewing the evidence in the light most favorable to the Beatys, as it must, the Ninth Circuit found that a reasonable juror could find that Ford knew that the PSR defect would persist in the substantially similar PSRs installed in the 2013 Ford Escape. It also concluded that a reasonable juror could find that the risk of a spontaneously shattering PSR is material to consumers under Washington law. Materiality is an element of both of the Beatys' claims. Finally, even if the district court did not apply an erroneous standard of materiality, the Ninth Circuit noted that there is a triable issue of fact as to whether the PSR shattering issue would be material to a reasonable consumer. Ford makes much of its calculated failure rate of 0.05%,4 but a reasonable juror could find that even a small risk that a PSR might explode without warning is a material fact, given that the practical question is whether to purchase a luxury accessory at a premium. The Beatys produced sufficient evidence that Ford's PSRs fail prematurely and in unexpected ways, which is contrary to consumer expectations. Other carmakers and NHTSA have also recognized that the distraction caused by an unexpected loud explosion and sudden shower of glass "could distract the driver" and create "the risk of a crash." Though Ford contends that no serious injuries have occurred yet, it is reasonable to assume that a consumer will attach importance to traumatic occurrences that result in "only" near-misses and relatively minor abrasions. The Beatys have produced sufficient evidence to preclude summary judgment on materiality. For these reasons, the Ninth Circuit reversed and remanded. The Plaintiff now seeks a review of this order entered by the court. The appellate case is captioned as Jacob Beaty, et al. v. Ford Motor Company, Case No. 21-80088, in the United States Court of Appeals for the Ninth Circuit, filed on July 23, 2021.[BN] Plaintiffs-Petitioners JACOB BEATY and JESSICA BEATY, on behalf of themselves and all others similarly situated, are represented by: Gregory Andrew Beck, Esq. GREGORY A. BECK 1900 L Street NW, Suite 312 Washington, DC 20036 Telephone: (202) 888-1741 - and - Greg Frederic Coleman, Esq. Adam A. Edwards, Esq. Mark E. Silvey, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 - and - Eric S. Johnson, Esq. SIMMONS HANLY CONROY One Court Street Alton, IL 62002 Telephone: (618) 259-2222 - and - Neil Sawhney, Esq. GUPTA WESSLER, PLLC 100 Pine Street, Suite 1250 San Francisco, CA 94111 - and - Amanda M. Steiner, Esq. Beth Ellen Terrell, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 E-mail: asteiner@terrellmarshall.com bterrell@terrellmarshall.com - and - Matthew W.H. Wessler, Esq. GUPTA WESSLER, PLLC 2001 K Street, NW, Suite 850 N Washington, DC 20006 Telephone: (607) 316-1499 Defendant-Respondent FORD MOTOR COMPANY is represented by: Cari Katrice Dawson, Esq. ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, GA 30309-3424 Telephone: (404) 881-7000 E-mail: cari.dawson@alston.com - and - John Thomas Fetters, Esq. Caryn Geraghty Jorgensen, Esq. STOKES LAWRENCE, P.S. 1420 Fifth Avenue, Suite 3000 Seattle, WA 98101-2393 Telephone: (206) 626-6000 - and - Nathaniel Garrett, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 FOREST CITY: Rule 23 and FLSA Classes Certified in Rapp Suit ------------------------------------------------------------ Magistrate Judge Thomas M. Parker of the U.S. District Court for the Northern District of Ohio, Eastern Division, issued an order granting the motion for class certification, conditional certification, and appointment of class counsel in the lawsuit entitled MARK A. RAPP, SR., et al., On behalf of themselves and all others similarly situated, Plaintiffs v. FOREST CITY TECHNOLOGIES, INC., et al., Defendants, Case No. 1:20-cv-2059 (N.D. Ohio). Plaintiffs Mark A. Rapp Sr. and A. Michael Perrine filed the Motion for Fed. R. Civ. P. 23 Class Certification, Conditional Certification Pursuant to 29 U.S.C. Section 216(b), and Appointment of Class Counsel. Defendants Forest City Technologies, Inc., and John Cloud Jr. do not oppose the motion. The Court certifies the Rule 23 Off the Clock Class pursuant to Rule 23 of the Federal Rules of Civil Procedure defined as: All present and former hourly manufacturing employees of defendant Forest City Technologies, Inc. in Ohio during the period of October 1, 2017 until October 1, 2019 (1) who worked more than forty (40) hours during one or more workweeks, (2) whose timekeeping records were destroyed by Forest City Technologies, Inc., (3) who were not paid for all hours worked by virtue of having their time edited, modified and/or rounded, and (4) who were not included in the Nagy v. Forest City Technologies, Inc., et al., N.D. Ohio No. 1:19-cv-02290 settlement. The Court also certifies the Rule 23 Regular Rate Class pursuant to Rule 23 defined as: All present and former hourly manufacturing employees of defendant Forest City Technologies, Inc. in Ohio during the period of two years preceding the commencement of this action to the present who, during one or more workweeks when they worked more than forty (40) hours, were paid nondiscretionary payments including, but not limited to, in the form of shift differential, additional pay, and other payments that were not factored into their overtime pay. This Rule 23 Regular Rate Class includes all hourly manufacturing employees as outlined in the previous sentence who were not included in the Nagy settlement, and all hourly manufacturing employees who were included in the Nagy settlement after July 20, 2020 (the Nagy settlement coverage period end date). In addition, the Court conditionally certifies the FLSA Off the Clock Class pursuant to 29 U.S.C. Section 216(b) defined as: All present and former hourly manufacturing employees of defendant Forest City Technologies, Inc. during the period of October 1, 2016 until October 1, 2019 (1) who worked more than forty (40) hours during one or more workweeks, (2) whose timekeeping records were destroyed by Forest City Technologies, Inc., (3) who were not paid for all hours worked by virtue of having their time edited, modified and/or rounded, and (4) who were not included in the Nagy v. Forest City Technologies, Inc., et al., N.D. Ohio No. 1:19-cv-02290 settlement. The Court also conditionally certifies the FLSA Regular Rate Class pursuant to 29 U.S.C. Section 216(b), defined as: All present and former hourly manufacturing employees of defendant Forest City Technologies, Inc. during the period of three years preceding the commencement of this action to the present who, during one or more workweeks when they worked more than forty (40) hours, were paid nondiscretionary payments including, but not limited to, in the form of shift differential, additional pay, and other payments that were not factored into their overtime pay. This FLSA Regular Rate Class includes all hourly manufacturing employees as outlined in the previous sentence who were not included in the Nagy settlement, and all hourly manufacturing employees who were included in the Nagy settlement after July 20, 2020 (the Nagy settlement coverage period end date). In addition, the court appoints and designates plaintiffs' counsel, attorneys Joseph F. Scott, Ryan A. Winters, and Kevin M. McDermott II of Scott & Winters Law Firm as class counsel and plaintiffs Mark A. Rapp Sr. and A. Michael Perrine as class representatives. Finally, the Plaintiffs and the Defendants are ordered to meet and confer, through counsel, regarding the content and form of notice to be given to the Rule 23 class members and proposed FLSA collective action members and to submit, within 21 days of the date of this Order, a joint proposed judicial notice and proposed notice process by both regular mail and email. The Defendants will, within 21 days of the date of this Order, provide the Plaintiffs with a list of the full name and last known home address of each current and former employee fitting the class descriptions, their dates of employment, and their last known personal email address. The list will be produced electronically and in hard copy. Factual Allegations The Plaintiffs allege that FCT's policies and practices pay hourly manufacturing workers, comprising the Off the Clock Subclasses, not based on the actual time manufacturing workers are clocked in and working but based on arbitrary times entered into the timekeeping system by management. The Plaintiffs cite one of FCT's written policies that states that "[t]ime is based on 1/4 hr. For example: if you punch in at 7:31 and stay till 10:14, you will get paid from 7:45 until 10:00," though the parties dispute whether this policy was applicable across all of FCT's locations. The Plaintiffs allege that this policy, and the alleged editing conducted by the Defendants, constitutes a per se violation of the FLSA and corresponding Ohio wage laws. During the applicable time periods for the Off the Clock Subclasses, at least some of FCT's manufacturing workers were required to clock into and out of the timekeeping system by entering a five-digit employee identification number, pressing a button indicating the type of punch they are entering into the system, and using their finger on the scanner to biometrically register their presence. FCT's electronic timekeeping system, provided by Paycom Payroll LLC, captured the exact time that manufacturing workers "clock in" at the beginning of a schedule shift and begin working, and "clock out" when they have completed their shift. While used as an attendance device, the timekeeping system highly correlated to the time that they were working. FCT keeps no posted weekly or daily work scheduled for manufacturing workers. The Paycom system automatically rounds to the nearest quarter hour. For example, were an employee to clock in at 6:55 a.m. (5 minutes prior to the hour), Paycom will adjust the clock-in time to 7:00 a.m. However, when a manufacturing worker clocked in at a time that would result in an employee-favorable automatic rounding adjustment--such as if the employee clocked in at 6:52 a.m. (which is closer to 6:45 a.m. than 7:00 a.m. and would trigger the Paycom automatic rounding rule system to round back to the prior quarter of an hour)--the Plaintiffs allege FCT's payroll "approvers" would edit the time to a time that would cause the Paycom automatic rounding rule to round against the employee. In the previous example, the edited time would result in the manufacturing worker's clock-in time to be rounded up to the next quarter hour, and not the previous quarter hour (which would had been the case had the time not been edited). The Plaintiffs allege this practice occurs both at the beginning and end of shifts across-the-board. After manufacturing workers provide timekeeping information by either punching in and out of the timeclock, or writing the information down on handwritten time records, a payroll approver has the opportunity to unilaterally accept or reject the reported times, and the accepted times are transmitted to Paycom for payroll. The Plaintiffs have filed a spreadsheet containing more than 7,500 examples across FCT's facilities that the Plaintiffs claim evidence the alleged unlawful time manipulation policies at the core of this litigation for FCT's manufacturing workers, who were not included in the Nagy settlement. The Plaintiffs have filed the written Time Rules Policy, which they argue demonstrates a practice evident in thousands of examples across each FCT plant and applied to all of FCT's manufacturing workers. The spreadsheet filed by plaintiffs purports to document examples of unlawful time manipulation practices at FCT Plants 1, 2/4, 3, 5, 7, 8, and Rockford. For their part, Rapp and Perrine claim they too were affected by the alleged time manipulation policies and practices. The Defendants dispute that the policy applied across-the-board or that Rapp and Perrine were affected by unlawful time manipulation policies/practices. The Defendants contend that the policy did not apply across-the-board. The Plaintiffs also allege that although manufacturing workers are given the opportunity to make corrections or changes to their times based on handwritten records submitted to management, tens of thousands of these records that existed before approximately October 2019 (when the Nagy matter was filed) have been destroyed. In addition to Paycom's electronic timekeeping system and FCT's payroll system, FCT manufacturing workers also use handwritten records--referred to as "attendance slips," "overtime slips," or "hours slips"--to record their work. FCT concedes the handwritten time records were in fact destroyed for all manufacturing workers, including for all manufacturing workers who were not included in Nagy, and for each manufacturing worker at each one of FCT's 11 manufacturing plants, including all 10 plants in Ohio. The Individual Defendant and FCT representative, John Cloud Jr., admits that every one of the handwritten time slips created prior to approximately October of 2019 was destroyed for all manufacturing workers--machine operators, technicians, and all other categories. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/vb48m9m6 from Leagle.com. GEM RECOVERY: Court Allows Rodriguez to File 3rd Amended Complaint ------------------------------------------------------------------ The U.S. District Court for the District of New Jersey grants the Plaintiff's motion to file a third amended complaint in the lawsuit entitled DELIA RODRIGUEZ, on behalf of herself and those similarly situated, Plaintiff v. GEM RECOVERY SYSTEMS, LLC, AWAR HOLDINGS, INC., SAM A. AWAR; and JOHN DOES 1 to 10, Defendants, Case No. 18-16251 (KM) (JBC) (D.N.J.). The case involves a class action complaint brought pursuant to the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff Rodriguez alleged that Defendants Gem Recovery Systems, LLC, Awar Holdings, Inc., and Sam A. Awar violated a number of FDCPA provisions in a letter they sent the Plaintiff seeking to collect debt owed to the Monmouth Ocean Hospital Services Corp. (allegedly also known as "MONOC"). The Plaintiff now seeks to file a Third Amended Complaint which would remove Gem Recovery Systems as a defendant and add additional factual allegations. The Defendants moved to dismiss the Plaintiff's Second Amended Complaint and now oppose amendment on the ground that it would be futile. Background The Plaintiff filed her complaint on Nov. 16, 2018, initially bringing claims against Gem Recovery Systems, Inc. and Frank Giglio. She filed an amended complaint on Jan. 21, 2019. On March 6, 2020, she moved to amend again, this time to remove Frank Giglio and to add Sam A. Awar and Awar Holdings, Inc. It appears that Awar Holding was the legal name of the entity, which issued the debt collection letters, but Awar Holdings had been doing business as Gem Recovery Systems, Inc. Judge Clark granted the Plaintiff's motion to amend and the Second Amended Complaint was filed on Nov. 12, 2020. The Second Amended Complaint alleges these FDCPA violations: a. False, deceptive, and misleading representations and means in connection with the collection of alleged debts, 15 U.S.C. Section 1692e; b. Falsely representing the character, amount, or legal status of the alleged debts, in violation of 15 U.S.C. Section 1692e(2)(A); c. False representations and deceptive means to collect or attempt to collect the alleged debts, in violation of 15 U.S.C. Section 1692e(10); d. Unfair or unconscionable means to collect or attempt to collect the alleged debts in violation of 15 U.S.C. Section 1692f; e. Failure to state the name of the creditor to whom the debt is owed in violation of 15 U.S.C. 1692g and 1692g(a)(2); and f. Failure to give proper notice of consumer's rights by overshadowing the Validation Notice in violation of 15 U.S.C. 1692g and 1692g(b). The bases for these claims are (1) that a validation notice in the letter was improperly overshadowed by threats from the defendants that they would report debtor's non-payment to credit reporting agencies, (2) the debt collection letters issued by the defendants did not properly identify the creditor seeking to collect the debt, and (3) the letter falsely represented that Gem Recovery Systems had already reported the delinquent account to credit agencies. Sam A. Awar and Awar Holdings then filed the motion to dismiss at issue in this case. In addition to filing that motion, they sent a Rule 11 safe-harbor letter to the Plaintiff's counsel. The Rule 11 safe-harbor letter explained that the Plaintiff had redacted the name of the creditor from the letters submitted as exhibits to the Court. The Plaintiff's redactions, thus, obscured a fact necessary for the Court to evaluate her claims, and, according to the Defendants, were intentional efforts to obscure the fact that her claims were meritless. As the Defendants note, the debt collection notices did bear a name, "MONOC," which the Defendants assert is the trade name of the Plaintiff's creditor. The Plaintiff responded to the Rule 11 safe-harbor letter by filing the motion to amend at issue in this case. Her proposed third amended complaint now attaches the debt collection letters without the name of the creditor redacted. She still, however, asserts that the creditor's name is not displayed on the letter because the name "MONOC" does not adequately identify the creditor under 15 U.S.C. 1692g and 1692g(a)(2). The new complaint also removes Gem Recovery Systems, which the Plaintiff now believes to be simply an alternative name for Awar Holdings, Inc., and added a few additional substantive allegations regarding the letters the debt collector sent to consumers. It also adds Accounts Receivable Management Corp. as an alternative name of Awar Holdings, Inc. Motion to Amend District Judge Kevin McNulty finds good cause for amendment because it was an appropriate response to the Defendants having sent the Plaintiff a Rule 11 safe harbor notice. The purpose of the safe harbor notice is to "encourage a withdrawal of [an] offending pleading" so as to facilitate litigation on the merits rather than bog the Court down in Rule 11 motions. Judge McNulty points out that the Plaintiff's compliance with the notice should be encouraged; it would not contribute to the orderly disposition of civil cases to deny leave to amend and, thereby, force parties to stand on pleadings which they know violate Rule 11. Judge McNulty explains that the amendments are to be freely granted; the amendment adds no new claims but will add clarity to the existing ones; and it does not appear that the Defendant will be prejudiced. The Defendants argue that, nevertheless, amendment should be denied as "futile," because the complaint, even as amended, fails to state a claim. Judge McNulty disagrees, and so will grant the motion to amend. The Plaintiff alleges that the debt collector issued her six letters in connection with her debt. Only one of the letters, however, is of importance to this motion. The Plaintiff claims that the guarantees of the validation notice are overshadowed by other portions of the letter--particularly the threat in the initial paragraph to initiate collection activities and report the delinquent account to credit agencies. Judge McNulty agrees. While the validation notice was included in the letter, Gem Recovery Systems wrote the letter in such as manner so as to discourage consumers from invoking their rights, by implying that doing so would be an inferior, second-best option, Judge McNulty finds. The Plaintiff also claims that the use of the name "MONOC" was insufficient to comply with the requirement in the FDCPA that a debt collection notice state the creditor's name. The Plaintiff argues that the creditor in this case was Monmouth Ocean Hospital Services Corp., not "MONOC." The Defendant counters that Monmouth Ocean Hospital Services Corp. uses "MONOC" as its trade name. Whether "MONOC" is an adequate designation for the entity more formally known as Monmouth Ocean Hospital Services presents a context-sensitive issue of fact, unsuitable for resolution on a motion to dismiss, Judge McNulty notes. Since the Court makes every inference in the Plaintiff's favor on a motion to dismiss, Judge McNulty must assume that MONOC is not an adequate designation. He, therefore, concludes that the Plaintiff has pled a claim under 15 U.S.C. Section 1692g. Because he finds that the Plaintiff has pled the two claims, Judge McNulty will grant her motion to amend and deny the motion to dismiss as moot. Judge McNulty says he need not reach the alternative theory that the letter is unfair, false, deceptive, unconscionable or misleading. The parties dispute whether the complaint adequately pleads facts indicating that Sam Awar could be held individually liable. The Defendants claim that none of these bases for liability can apply because the Plaintiff's claims against Awar Holding, Inc., fail. As discussed, however, Judge McNulty disagrees. He, thus, finds that the Third Amended Complaint adequately pleads a claim against Mr. Awar and amendment would not be futile. Conclusion Judge McNulty concludes that amendment would not be futile because the proposed amended version would state a claim. He, therefore, grants the motion to amend. The Defendants' motion to dismiss is, accordingly, denied as moot. A full-text copy of the Court's Opinion dated July 19, 2021, is available at https://tinyurl.com/5f2wd737 from Leagle.com. GENERAL MOTORS: Casey Granted Leave to File 2nd Amended Complaint ----------------------------------------------------------------- The U.S. District Court for the Southern District of California grants the Plaintiff's Motion for Leave to File Second Amended Complaint in the lawsuit captioned REBECCA CASEY, individually, and on behalf of a class of similarly situated individuals, Plaintiff v. GENERAL MOTORS, LLC; and DOES 1-10, inclusive, Defendants, Case No. 20-cv-299-WQH-MSD (S.D. Cal.). On Sept. 15, 2020, Plaintiff Rebecca Casey filed a First Amended Class Action Complaint against Defendants GM and Does 1 through 10. On Sept. 29, 2020, Defendant GM filed a Motion to Dismiss. On April 13, 2021, the Court issued an Order granting the Motion to Dismiss and dismissing the First Amended Class Action Complaint without prejudice and with leave to file a motion for leave to amend. On May 20, 2021, the Plaintiff filed a Motion for Leave to File Second Amended Complaint. The Plaintiff seeks to amend the Complaint to eliminate the claims for fraud and for violation of the Consumer Legal Remedies Act ("CLRA"). The Plaintiff seeks to assert new factual allegations and new causes of action for violations of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code Section 1791 ("Song-Beverly Act"), and California's Unfair Competition Law ("UCL"). The Plaintiff contends that the proposed amendments resolve the issues identified by the Court in the Order granting the Motion to Dismiss. The Plaintiff contends that GM would not be prejudiced by amendment because the new claims arise from the same facts pled in the First Amended Class Action Complaint. On June 7, 2021, GM filed an Opposition to the Motion for Leave to File Second Amended Complaint. GM contends that amendment would be futile because the new claims are subject to dismissal. GM contends that the new claims are not based on newly discovered facts, and the proposed amendments fail to address the deficiencies identified by the Court in the Order granting the Motion to Dismiss. On June 14, 2021, the Plaintiff filed a Reply. The Plaintiff contends that amendment is not futile and that GM's assertion that the proposed amended complaint fails to state a claim is premature. In the proposed amended complaint, the Plaintiff deletes the claims for fraud and for violation of the CLRA. The Plaintiff adds new factual allegations and new claims for violations of the Song-Beverly Act and the UCL, arising from the alleged Fuse Block Defect in GM Class Vehicles. The Court notes that it will defer consideration of the challenges to the merits of the proposed amended complaint until after the amended pleading is filed. District Judge William Q. Hayes opines that GM has not made a strong showing that it would be prejudiced by the addition of the new claims or that the remaining factors under Foman v. Davis, 371 U.S. 178, 182 (1962) warrant deviating from the presumption under Rule 15(a) in favor of granting leave to amend. Accordingly, the Motion for Leave to File Second Amended Complaint is granted. The Plaintiff's proposed amended complaint attached to the Motion was due within five (5) days of the date of this Order. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/3zc7k2yx from Leagle.com. GENERAL MOTORS: Dismissal of Some Claims in Robinson Suit Endorsed ------------------------------------------------------------------ Magistrate Judge Sherry R. Fallon of the U.S. District Court for the District of Delaware recommends that the Court grants in part and denies in part the Defendant's motion to dismiss the lawsuit entitled CRYSTAL ROBINSON, et al., Plaintiff v. GENERAL MOTORS LLC, Defendant, Case No. 20-663-RGA-SRF (D. Del.). Before the Court in this product liability putative class action is the Defendant's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Background On May 15, 2020, 19 Plaintiffs, Crystal Robinson, Richard Schellhammer, William Braden, Earl Kladke, Joseph Palopoli, Jr., Lana Savage, April Bradley, John Toda, Maxine Glenn, Nicole Blanchard, Gladys Tubbs, Tonya Gruchacz, Robert Tyson, Katrina Howard, Sheila Cauthen, Mariano Lorenzo Macaisa, Gini Michelle Cox, Kendra Piazza, and David Conroe, filed a putative class action complaint against GM. The Plaintiffs are citizens of Alabama, Florida, Indiana, Kansas, Maryland, Michigan, New Jersey, New York, North Carolina, Texas, and West Virginia, who purchased new, used, or certified pre-owned model year 2013 through 2017 Cadillac ATS, SRX, or XTS vehicles. In 2011, GM began advertising the "Cadillac User Experience" ("CUE"), a proprietary "infotainment" system. The CUE was installed on Cadillac ATS, SRX, and XTS models from 2013 to 2017 and Cadillac ELR and Escalade models from 2014 to 2017 ("Class Vehicles"). The CUE controls the vehicle's climate, navigation system, audio (radio, CD player, etc.), and backup camera. Users can also pair their cellular phones to the CUE through Bluetooth and use the CUE's voice recognition function to initiate and answer calls without using their hands. Except for the backup camera, most of the systems controlled by the CUE require use of the CUE's touch screen interface, which is built into the top of the vehicle's central instrument panel. However, the backup camera does not require a user to touch an icon on the touch screen. Whenever the vehicle is placed in Reverse, the CUE's touch screen converts into a video-type panel and shows the area behind the vehicle. The CUE's touch screen is comprised of two major components: (1) a projected capacitance touch screen, which is a glass sheet with electrode patterns on both sides, and (2) a plastic cover with channels that sits in front of the projected capacitance touch screen and is the physical screen a user touches. Between these two components is a silicone-like material. The Plaintiffs allege that the CUE is defective because the plastic cover is prone to delaminating or separating from the touch screen glass as a result of the mechanical or thermal stress commonly experienced during normal operation of a vehicle. When this delamination occurs, the silicone-like material coalesces and forms a spider-web-like pattern on the display, preventing a user's touch from being registered. The Plaintiffs allege that design of the CUE system is defective in various ways: First, the configuration of the screws fastening the plastic cover to the touch screen--six placed at the top of the screen and two at the bottom--causes the bottom portion of the plastic cover to flex and move when pressure is applied and allows too much movement to occur, which eventually leads to spider-webbing and failure. Second, the cut of the rubber gasket on the plastic cover allows for a gap between the touch screen and the plastic cover. The gap prevents a user's inputs from being registered by the touch screen and allows for more flexibility in the plastic cover, which leads to the spider-webbing defect. Third, and last, the plastic cover delaminates or separates as a result of temperature fluctuations because the materials comprising the touch screen assembly have different thermal expansion coefficients. The Plaintiffs claim that the Defect creates a safety risk and causes an unsafe driving distraction. Specifically, the Plaintiffs assert when drivers try to use the CUE they are unable to read or sec it clearly, become frustrated with and focused on the malfunctioning display, and are required to remove their hands from the wheel more often for longer periods. They also assert that the Defect distorts or masks the backup camera's images, rendering the camera unusable. They note that backup cameras are a required safety feature in all cars. The Plaintiffs allege that GM knew, or should have known, about the Defect before it sold the Class Vehicles through various sources, including pre-release testing data and early consumer complaints about the Defect to GM's dealers, who are their agents for vehicle repairs. The Plaintiffs cite four "Technical Service Bulletins" ("TSBs") that GM issued to its dealers, but not its customers, which acknowledge the existence of the Defect as early as December 2014. The Plaintiffs also cite customer complaints filed with the National Highway Traffic Safety Administration ("NHTSA"), with whom GM maintains an open dialogue, as further evidence that GM had knowledge of the Defect. This case was filed following the dismissal of the non-California plaintiffs in Goldstein v. Gen. Motors LLC, 445 F.Supp.3d 1000 (S.D. Cal. 2020) due to lack of personal jurisdiction. The Plaintiffs allege 30 causes of action arising from six types of claims: breach of warranty under the Magnuson-Moss Warranty Act ("MMWA"), breach of express and implied warranties under various state laws, violations of various state consumer protection laws, fraudulent concealment, and unjust enrichment. The Plaintiffs bring this action on behalf of themselves and all others similarly situated as members of the proposed Classes under Rule 23 of the Federal Rules of Civil Procedure. The "proposed Classes" include: the Nationwide Class (also referred to as the "Class"), the Alabama Sub-Class, the Florida Sub-Class, the Indiana Sub-Class, the Kansas Sub-Class, the Maryland Sub-Class, the Michigan Sub-Class, the New Jersey Sub-Class, the New Jersey TCCWNA Sub-Class, the New York Sub-Class, the North Carolina Sub-Class, the Texas Sub-Class, the Texas DTPA Sub-Class, and the West Virginia Sub-Class. In each state sub-class, the Plaintiffs seek to represent "[a]ll persons and entities who purchased or leased a Class Vehicle" in that state. a. Common Law Fraudulent Concealment and the Plaintiffs' State Consumer Protection Claims Count XXIX of the Plaintiffs' putative class action complaint ("CAC") contains fraudulent concealment claims under the common law of eleven different states: Alabama, Florida, Indiana, Kansas, Maryland, Michigan, New Jersey, New York, North Carolina, Texas and West Virginia. The elements of a fraudulent concealment claim are similar in each state, Judge Fallon notes, citing Aliant Bunk, a Div. of USAmeribank v. Four Star Invs., Inc., 244 So.3d 896, 930 (Ala. 2017), et al. GM argues that the Court should dismiss the Plaintiffs' fraudulent concealment claims because the allegations in the CAC fail to: (1) satisfy the particularity requirements of Federal Rule of Civil Procedure 9(b); (2) plausibly allege GM's knowledge of the alleged defect at the time Plaintiffs' vehicles were sold; and (3) allege that GM had a duty to disclose. GM also argues that the economic loss doctrine bars the Plaintiffs' fraudulent concealment claims brought under Florida, Maryland, Michigan, New Jersey, New York, and Texas law and the Plaintiffs' claims under the North Carolina Unfair and Deceptive Trade Practices Act. The Plaintiffs also allege 13 claims under the consumer protection statutes of the same eleven states: Count II (Alabama), Count III (Florida), Count VI (Indiana), Count VIII (Kansas), Count X (Maryland), Count XII (Michigan), Count XV (New Jersey), Count XVI (New Jersey), Count XIX (New York), Count XX (New York), Count XXII (North Carolina), Count XXVI (Texas), and Count KXVIT (West Virginia). GM argues that the Plaintiffs' state law consumer protection claims fail for the same reasons as their fraudulent concealment claims. Judge Fallon holds that GM's argument that the CAC fails to identify "any alleged misrepresentation" with the particularity that Rule 9(b) requires mischaracterizes the Plaintiffs' fraud claim. She explains that the Plaintiffs' fraud and state consumer protection claims are based on GM's alleged omission of material facts, not affirmative misrepresentations. Accordingly, the CAC need not contain allegations of an affirmative misrepresentation to survive a motion to dismiss. The CAC contains specific allegations of what GM omitted: the Defect, Judge Fallon notes. The CAC describes various channels through which OM could have disclosed the Defect but did not, for example, press releases, Monroney stickers, dealership brochures, and dealership salespeople. The CAC explains how GM's failure to disclose the Defect was misleading because GM advertised the CUE as a driver safety feature notwithstanding that the Defect caused distracted driving and backup camera failure. Based on these specific factual allegations, the Plaintiffs have accomplished the purpose of the heightened pleading set forth in Rule 9(b), which is to require plaintiffs to "state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the precise misconduct with which it is charged," Judge Fallon opines, citing Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). The Court recommends finding that the specificity requirements of Rule 9(b) have been met as to the Plaintiffs' fraudulent concealment and state consumer law-based claims. GM also argues that the Plaintiffs fail to allege facts establishing that it had a duty to disclose the Defect. In response, the Plaintiffs argue that the CAC contains plausible allegations regarding GM's duty to disclose the Defect in accordance with applicable state law. Judge Fallon holds that the Plaintiffs have sufficiently pled GM's duty to disclose the Defect. GM argues that the Court should dismiss the Plaintiffs' state consumer protection claims because the "conclusory allegations" of reliance and/or causation in the CAC fail to satisfy the specificity required by Rule 9(b). GM asserts that the Plaintiffs' Alabama, Indiana, Kansas, Maryland, Michigan, Texas, and one of the Plaintiffs' New York claims require pleading the elements of reliance and causation. The Plaintiffs agree that reliance and causation are required elements of these claims except for their Alabama claim pursuant to Alabama's Deceptive Trade Practices Act ("Alabama DTPA"). The Plaintiffs argue that they have sufficiently alleged reliance and causation in light of the relaxed application of Rule 9(b) that courts apply to omission-based fraud and state consumer protection claims. However, one named plaintiff, Nicole Blanchard, fails to plead reliance, Judge Fallon finds. Unlike the other named Plaintiffs, Blanchard did not rely on advertisements, representations by dealership salespersons, or Monroney stickers and specifically alleges that she purchased a Class Vehicle based solely "on brand loyalty." Accordingly, the CAC lacks any allegation that Blanchard relied on GM's failure to disclose the Defect to her detriment. For this reason, in addition to the economic loss doctrine addressed infra, the Court recommends dismissing Blanchard's fraudulent concealment claim along with her claim pursuant to Michigan's Consumer Protection Act. GM also argues that the claims under the New Jersey Consumer Fraud Act ("NJCFA"), brought by Plaintiffs Gruchacz and Tyson should be dismissed for failing to plead an ascertainable loss because both Gruchacz and Tyson admit that they did not seek to have their respective Class Vehicles repaired during the warranty period. Judge Fallon holds that Gruchacz and Tyson have sufficiently alleged an ascertainable loss by stating that their Class Vehicles suffered a loss in value as a result of the CUE on their Class Vehicles becoming unresponsive, cracked, and spider webbed. Therefore, the Court recommends denying GM's motion to dismiss the Plaintiffs' NJCFA claims, and dismissing their North Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA") claim (Count XXII). In summary, the Court recommends granting GM's motion to dismiss the fraudulent concealment claims (Count XXIX) asserted by Savage (FL), Palopoli (FL), Kladke (FL), Tubbs (MI), Blanchard (MI), Gruchacz (NJ), Tyson (NJ), Howard (NY), Piazza (TX), and Cox (TX); denying GM's motion to dismiss the fraudulent concealment claims (Count XXIX) asserted by the remaining plaintiffs: Robinson (AL), Schellhammer (AL), Bradley (IN), Toda (KS), Glenn (MD), Macaisa (NC), Cauthen (NC), and Conroe (WV); and granting GM's motion to dismiss the NCUDTPA claim (Count XXII) by Macaisa and Cauthen. b. State Law Consumer Protection Claims, State-Specific Grounds GM argues that the Alabama, Florida, Indiana, Maryland, New York, and Texas state consumer protection claims brought by Robinson, Schellhammer, Kladke, Palopoli, Savage, Bradley, Glenn, Howard, Cox, and Piazza are time-barred because they are based on alleged omissions by GM and an injury suffered "at the time of purchase," which GM argues was beyond the limitations period for each of these claims. In response, the Plaintiffs successfully argue, for reasons specific to each statute, that their Alabama, Florida, Indiana, Maryland, and Texas state consumer protection claims are timely, but the Plaintiffs fail to argue that their New York consumer protection claims are timely, Judge Fallon holds. Therefore, the Court recommends denying GM's motion to dismiss the state-specific claims, except for the Plaintiffs' claims under New York law. c. Breach of Express Warranty GM argues that the Plaintiffs' Florida, Michigan, New Jersey, and Texas breach of express warranty claims fail. The Plaintiffs and states relevant to GM's arguments are: Kladke (Florida), Palopoli (Florida), Savage (Florida), Blanchard (Michigan), Tubbs (Michigan), Gruchacz (New Jersey), Tyson (New Jersey), Cox (Texas), and Piazza (Texas). GM argues the Plaintiffs' express warranty claims fail because, among other things, the CAC lacks allegations that the Plaintiffs "experienced" the Defect during the warranty period, "presented" their Class Vehicles for repair during the warranty period, and GM refused or failed to repair their Class Vehicles. In response, the Plaintiffs argue that GM's argument fails to consider their theory that GM knew about the Defect and the fact that it existed in all Class Vehicles "at the time of sale." The Plaintiffs also argue the CAC contains plausible factual allegations that the Defect manifested within the Warranty's coverage period. The Court recommends dismissing the express warranty claims asserted by Kladke (Count IV) and Cox (Count V) because the CAC lacks plausible allegations that they ever took their respective Class Vehicle to GM and requested repairs, an undisputed requirement under the terms of the Warranty. The Court recommends dismissing the express warranty claim asserted by Tubbs (Count XIII) because she requested a repair after the Warranty expired. Although they contacted GM after noticing the Defect, the Court recommends dismissing the express warranty claims asserted by Blanchard (Count XIII) and Tyson (Count XVIII). They do not plausibly allege that their vehicles were within the Warranty period when they contacted GM because they do not plead the date their respective Class Vehicles were "first delivered or put in use" or the date and mileage of their Class Vehicles when they sought repairs. Similarly, Gruchacz avers that she took her Class Vehicle to a GM dealership "while her vehicle was still within the 4-year, 50,000-mile warranty period." However, Gruchacz fails to plausibly allege that her Class Vehicle was covered by the Warranty when she sought repairs because she does not plead the mileage on her Class Vehicle when she did so. Therefore, the Court also recommends dismissing Gruchacz's express warranty claim (Count XVIII). Palopoli (Count IV), Savage (Count IV), and Piazza (Count XXIV) admit in the CAC that GM repaired their Class Vehicles at no cost when they presented them for repair within the term of the Warranty. Piazza does not allege that the Defect manifested in her Class Vehicle's CUE since GM repaired it a second Lime. Palopoli, Savage, and Piazza fail to allege that GM refused to repair the Defect when they sought repairs within the Warranty's term. Therefore, the Court recommends dismissing their breach of express warranty claims in Counts IV and XXIV. The Court also recommends granting GM's motion with respect to the Plaintiffs' breach of express warranty claims and dismissing all such claims in the CAC: Counts IV, XIII, XVIII, and XXIV of CAC. d. Breach of Implied Warranty GM argues that all of the Plaintiffs' implied warranty claims under Uniform Commercial Code Section 2-314 fail because the CAC lacks allegations that the Defect occurred within the durational term of the Warranty. The Plaintiffs do not argue that they have plausibly alleged they have plausibly alleged that their implied warranty claims fall within the Warranty's durational terms. Instead, the Plaintiffs rely on their argument that the CAC contains plausible allegations that the durational limit of the Warranty is unconscionable and that it would be premature for the Court to decide the unconscionability issue at the pleading stage. However, for the reasons discussed on breach of express warranty, the Court rejects the Plaintiffs' unconscionability argument. e. Magnuson-Moss Warranty Act ("MMWA") The parties agree that MMWA claims (Count I) are "based on breaches of express and implied warranties under state law depend upon those state law claims" (Cooper v. Samsung Elecs. Am., Inc., 2008 WL 4513924, at *6 (D.N.J. Sept. 30, 2008), aff'd, 374 F. App'x 250, 254 (3d Cir. 2010)). GM argues that the Plaintiffs' MMWA claims fail because their express and implied warranty claims based on state law fail. As previously stated, the Court recommends dismissing all of the Plaintiffs' express and implied warranty claims; therefore, the Court recommends dismissing the Plaintiffs' MMWA claims. f. Unjust Enrichment -- Count XXX Count XXX of the CAC is a claim for unjust enrichment brought "On Behalf of the Nationwide Class or Alternatively, each of the State Sub-Classes." GM argues, among other things, that the Plaintiffs lack standing to assert a nationwide unjust enrichment claim because the complaint lacks named plaintiffs from the remaining 39 states, and the Plaintiffs cannot represent putative class members from other states. The Court finds that, at the pleadings stage, the Plaintiffs lack standing to assert unjust enrichment claims under the common law of states in which they did not suffer an alleged injury. Therefore, the Court recommends dismissing the unjust enrichment claims alleged in Count XXX on behalf of the Nationwide Class. Conclusion For these reasons, the Court recommends granting-in-part and denying-in part GM's motion without prejudice as follows: a) Fraudulent Concealment. Denying GM's motion to dismiss CAC Count XXIX with respect to Robinson (AL), Schellhammer (AL), Bradley (IN), Toda (KS), Glenn (MD), Macaisa (NC), Cauthen (NC), and Conroe (WV); and granting GM's motion to dismiss CAC Count XXIX with respect to Savage (FL), Palopoli (FL), Kladke (FL), Tubbs (MI), Blanchard (MI), Gruchacz (NJ), Tyson (NJ), Howard (NY). Piazza (TX), and Cox (TX); b) State Consumer Protection Claims. Denying GM's motion to dismiss CAC Counts II (AL), III (FL), VI (IN), X (MD), XV (NJ), XVI (NJ), XXVI (TX), and XXVII (WV); and granting GM's motion to dismiss CAC Counts VIII (KS), XII (MI), XXII (NC), XIX (NY), and XX (NY); c) Breach of Express Warranty. Granting GM's motion to dismiss CAC Counts IV (FL), XIII (MI), XVIII (NJ), and XXIV (TX); d) Breach of Implied Warranty. Granting GM's motion to dismiss CAC Counts V (FL), VII (IN), IX (KS), XI (MD), XIV (MI), XVII (NJ), XXI (NY), XXIII (NC), XXV (TX), and XXVIII (WV); e) MMWA. Granting GM's motion to dismiss CAC Count I; and f) Unjust Enrichment. Granting GM's motion to dismiss CAC Count XXX on behalf of a putative nationwide class and with respect to Gruchacz and Tyson; and denying GM's motion to dismiss the balance of CAC Count XXX. This Report and Recommendation is filed pursuant to 28 U.S.C. Section 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. The objections and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987). The parties are directed to the Court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated Oct. 9, 2013, a copy of which is available on the Court's website, http://www.ded.uscourts.gov. A full-text copy of the Court's Report and Recommendation dated July 19, 2021, is available at https://tinyurl.com/3ewmhexm from Leagle.com. GOLDEN STATE: Scott Suit Stayed Pending Resolution of Trevino Suit ------------------------------------------------------------------ The U.S. District Court for the Northern District of California grants the Defendants' motion to stay the lawsuit captioned LOVENIA SCOTT, Plaintiff v. GOLDEN STATE FC, LLC, et al., Defendants, Case No. 21-cv-02147-HSG (N.D. Cal.). The Defendants, collectively referred to as Amazon, moved to stay the case pending resolution of an earlier-filed putative employment class action, Trevino v. Golden State FC, LLC, Lead Case No. 1:18-cv-00120-DAD (BAM) (E.D. Cal.). On Feb. 8, 2021, Plaintiff Lovenia Scott filed this action on behalf of herself and a class defined as all persons employed by Amazon and/or any staffing agencies and/or any other third parties as warehouse employees in hourly or non-exempt positions in California from Feb. 8, 2017, to present. The Plaintiff's complaint alleges several violations of California's Labor Code, including failure to provide meal and rest periods, failure to pay hourly wages, failure to indemnify for business expenses, failure to provide accurate written wage statements, failure to timely pay all final wages, sharing of liability with a labor contractor, and unfair competition. Amazon removed this action on March 26, 2021. On April 2, 2021, Amazon moved to stay this action pending final resolution of Trevino, which was filed in the U.S. District Court for the Eastern District of California on July 12, 2017. The Trevino Plaintiffs seek to represent "all persons who were employed by Amazon in California as non-exempt workers" from July 12, 2013, to the date of judgment to be entered by the Trevino court. They allege violations of California's Labor Code, including failure to pay wages, failure to provide meal and rest periods, failure to provide accurate wage statements, and unfair competition; they also seek recovery of civil penalties. The Trevino court held a class certification hearing on May 12, 2021, and Magistrate Judge Barbara A. McAuliffe issued findings and recommendations report recommending that the Trevino Plaintiffs' motion be granted in part and denied in part. The matter was referred to District Judge Dale A. Drozd. Amazon contends that the overlap between this action and Trevino warrants a stay under the first-filed rule or the Court's discretion under Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Amazon notes that several other cases have been "stayed or dismissed due to overlap with Trevino," see, e.g., Noflin v. Amazon.com.NVDC LLC, Case No. 8:18-cv-01400 (C.D. Cal. 2018). In opposing any stay, the Plaintiff points to factual dissimilarities and the "very real possibility that it will take a long time for Trevino to resolve." Given the significant overlap between the issues and parties in this matter and Trevino, the Court exercises its discretion to grant Amazon's motion to stay proceedings pending final resolution of Trevino. District Judge Haywood S. Gilliam, Jr., states that to determine whether the first-filed rule applies, a court analyzes three factors: chronology of the lawsuits, similarity of the parties, and similarity of the issues. As to the first factor, Trevino was filed on July 12, 2017, and the Plaintiff filed this action in state court on Feb. 8, 2021. There is no dispute that Trevino was filed first. As to the second factor, the parties are substantially similar in Trevino and in this matter. The Court follows the approach of comparing putative classes rather than named plaintiffs in applying the first-filed rule. Here, the putative classes for the collective actions overlap in that they both seek to represent Amazon employees from Feb. 8, 2017, to present. And Amazon is the Defendant in both cases. Thus, substantial similarity of the parties is established, satisfying the second factor of the first-filed rule. As to the third factor, Judge Gilliam notes, the Plaintiff does not dispute that both cases involve similar claims. The Plaintiff instead argues that the factual dissimilarities between her claims and those in Trevino preclude an application of the first-filed rule, but offers no authority to support this position. Despite factual variations, the "central question" in the Plaintiff's meal and rest period claims is substantially similar to the one raised in Trevino. Accordingly, the Court finds that a stay is warranted under the first-to-file rule due to the chronology of the actions and the substantial similarity of the parties and issues between this case and Trevino. The Court also finds that the Landis factors favor a stay. As to the first factor, Amazon argues that Plaintiff will not be harmed by a stay because she seeks only monetary damages and her claims will be resolved by the outcome in Trevino. To support her claim that she will suffer harm, the Plaintiff points to the risk of losing valuable contact information and the likelihood of a "lengthy and indefinite delay" given the Eastern District's docket and resources. The Court is unpersuaded by the Plaintiff's references to the judicial emergency of the Eastern District, as the Plaintiff cites no case law indicating that this Court should speculate about another district court's case load or the speed at which Trevino might be resolved. The Court is also unpersuaded that a stay pending final resolution of an earlier-filed case in another district court encompasses an unreasonable time frame. As to the second factor, Amazon contends that it will suffer undue hardship due to having to unnecessarily litigate a case and expend additional time and money. It notes that this case was filed after the class certification motion in Trevino was fully briefed and asserts that class discovery and motion practice will cover much of the same ground. The Court finds these arguments are more relevant to the third factor, and to that end, weigh heavily in favor of a stay. As previously discussed, a substantial amount of the claims in both proceedings involve common legal issues, and what happens in Trevino likely could impact the overlapping claims in this case. Accordingly, because a stay will facilitate judicial economy and there is no showing of any plausible damage, the Court grants the motion to stay. The parties will file a joint statement every 120 days updating the Court on the progress of the proceedings in Trevino. The Court will periodically evaluate the need for and reasonableness of continuing the stay. The parties are also directed to notify the Court within 48 hours of a decision on the pending motion for class certification. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/52znec43 from Leagle.com. GOOGLE LLC: Court Enters Scheduling Order in Cabrera Class Suit --------------------------------------------------------------- In the class action lawsuit captioned as RENE CABRERA v. GOOGLE LLC, Case No. 5:11-cv-01263-EJD (N.D. Cal.), the Hon. Judge Edward J. Davila entered an scheduling order: Event Deadline -- Completion of disc. re RMC October 15, 2021 -- Supp. Expert Reports due (if any) November 19, 2021 -- Expert discovery closes December 17, 2021 -- Plaintiffs' Supplemental Class December 17, 2021 Certification Motion -- Defendant's opposition to January 31, 2022 Plaintiffs' Supplemental Class Certification Motion -- Defendant's Motion for Summary February 18, 2022 Judgment -- Plaintiffs' reply in further February 28, 2022 support of Supplemental Class Certification Motion -- Plaintiffs' opposition to March 31, 2022 Defendant's Motion for Summary Judgment -- Defendant's reply in further April 28, 2022 support of Motion for Summary Judgment -- Hearing on Plaintiffs' Class June 2, 2022 Certification Motion and Supplemental Class Certification Motion and Defendant's Motion for Summary Judgment Google LLC is an American multinational technology company that specializes in Internet-related services and products, which include online advertising technologies, a search engine, cloud computing, software, and hardware. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/2Vl5Geb at no extra charge.[CC] GOVERNMENT EMPLOYEES INSURANCE: Lewis Suit Seeks to Certify Class ----------------------------------------------------------------- In the class action lawsuit captioned as SHERRY LEWIS and DAVID V. LEWIS, individually and on behalf of all others similarly situated, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Case No. 1:18-cv-05111-RBK-KMW (D.N.J.), the Plaintiffs ask the Court to enter an order: 1. certifying the proposed Class; 2. appointing Sherry Lewis and David V. Lewis as class representatives; and 3. appointing Steve Berman of Hagens Berman Sobol Shapiro LLP as Lead Counsel for the Class. The Government Employees Insurance Company is an American auto insurance company with headquarters in Chevy Chase, Maryland. It is the second largest auto insurer in the United States, after State Farm. A copy of the Plaintiffs' motion dated July 23, 2021 is available from PacerMonitor.com at https://bit.ly/2TL66Kx at no extra charge.[CC] The Attorneys for Plaintiffs and the Proposed Class, are: James E. Cecchi, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, PC 5 Becker Farm Road Roseland, NJ 07068-1739 Telephone: (973) 994-1700 - and - Caroline F. Bartlett, Esq. Robert B. Carey, Esq. John M. DeStefano, Esq. Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson Street, Suite 1000 Phoenix, AZ 85003 Telephone: (602) 224-2628 E-mail: rob@hbsslaw.com johnd@hbsslaw.com steve@hbsslaw.com - and - Marc A. Goldich, Esq. AXLER GOLDICH LLC 1520 Locust Street, Suite 301 Philadelphia, PA 19102 Telephone: (267) 534-7400 E-mail: mgoldich@axgolaw.com - and - David Woloshin, Esq. Dina S. Ronsayro, Esq. ASTOR WEISS KAPLAN & MANDEL LLP 200 South Broad Street, Suite 600 Philadelphia, PA 19102 Telephone: (215) 790-0100 E-mail: dwoloshin@astorweiss.com dronsayro@astorweiss.com GREYSTAR REAL: Wallace Suit Seeks to Certify Two Classes -------------------------------------------------------- In the class action lawsuit captioned as KATRINA WALLACE, on behalf of herself and all others similarly situated, v. GREYSTAR REAL ESTATE PARTNERS, LLC; GREYSTAR GP II, LLC; GREYSTAR MANAGEMENT SERVICES, L.P.; GREYSTAR RS NATIONAL, INC.; GREYSTAR RS SE, LLC; GREP SOUTHEAST, LLC; and INNESBROOK APARTMENTS, LLC d/b/a SOUTHPOINT GLEN, Case No. 1:18-cv-00501-LCB-LPA (M.D.N.C.), the Plaintiff asks the Court to enter an order certifying the following Classes: -- Collection Letter Class "All natural persons who, during the Relevant Time Period, (a) resided in any of the properties in North Carolina owned and/or managed by Greystar, and (b) were sent a Collection Letter threatening to charge Eviction Fees;" and -- Eviction Fee Class: "All natural persons who, during the Relevant Time Period (a) resided in any of the properties in North Carolina owned and/or managed by Greystar, (b) were charged, and (c) paid Eviction Fees." Excluded from the Classes are: (a) any Judge or Magistrate presiding over this action and members of their families; (b) Greystar and any entity which Greystar has a controlling interest, or which has a controlling interest in Greystar and all legal representatives; and (c) all persons who properly execute and file a timely request for exclusion. Greystar Real is an international real estate developer and manager based in the United States. A copy of the Plaintiff's motion to certify class dated July 23, 2021 is available from PacerMonitor.com at https://bit.ly/2UZDo9z at no extra charge.[CC] The Attorneys for Plaintiff Katrina Wallace and the putative classes are: Scott C. Harris, Esq. Patrick M. Wallace, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 W. Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: sharris@milberg.com pwallace@milberg.com - and Edward H. Maginnis, Esq. Karl S. Gwaltney, Esq. MAGINNIS HOWARD, PLLC 7706 Six Forks Road, Suite 101 Raleigh, NC 27615 Telephone: (919) 526-0450 Facsimile: (919) 882-8763 E-mail: emaginnis@maginnishoward.com kgwaltney@maginnishoward.com HARBOR FREIGHT: Faces Andrews Class Suit Over Defective Jackstands ------------------------------------------------------------------ WILLIAM ANDREWS, on behalf of himself and all others similarly situated v. HARBOR FREIGHT TOOLS USA, INC., Case No. 2:21-cv-05751-DMG-KK (C.D. Cal., July 15, 2021) is a class action complaint related to defective jackstands designed and manufactured by the the Defendant Harbor Freight. This complaint brings claims for breach of warranty, negligence, and products liability against Harbor Freight Tools USA, Inc. (Harbor Freight) relating to jack stands sold by Defendant. These stands were manufactured with a defect that made them inherently dangerous, says the suit. These actions will cover three separate classes of people. Some individuals purchased jack stands that have been recalled, but Defendant has failed to make many of those who bought them whole, including the Plaintiff Andrews. Once consolidated, the consolidated Plaintiffs will allege three classes of consumers. Harbor Freight is a retail discount tool seller and distributor. It sells merchandise over the internet and operates roughly 1000 stores nationwide from its headquarters located at 26565 Agoura Road in Calabasas, California. Harbor Freight sells automotive jack stands under the inhouse brand name "Pittsburgh Automotive," which are manufactured in China.[BN] The Plaintiff is represented by: R. Kevin Fisher, Esq. FISHER & KREKORIAN P.O. Box 890 Santa Monica, CA 90406 Telephone: (310) 862-1220 Facsimile: (310) 388-0805 - and - Andrew J. Schwaba, Esq. SCHWABA LAW FIRM NC Bar No.: 36455 212 North Tryon Street, Suite 1725 Charlotte, NC 28281 Telephone: (704) 370-0220 Facsimile: (704) 370-0210 E-mail: aschwaba@schwabalaw.com HEARTLAND EXPRESS: Bid for Conditional Certification Stricken ------------------------------------------------------------- In the class action lawsuit captioned as GREGG FREITAS and RYAN CALVERT, individually and on behalf of all others similarly situated, v. HEARTLAND EXPRESS, INC OF IOWA, Case No. 2:19-cv-00383-SAB (E.D. Wash.), the Hon. Judge Stanley A. Bastian entered an order striking motion for conditional certification, with leave to renew. Heartland Express provides collaborative truckload transportation service. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3l90zso at no extra charge.[CC] HERC HOLDINGS: Court Dismisses Ramirez Class Suit ------------------------------------------------- Herc Holdings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that an order of dismissal has been entered in the putative shareholder class action suit entitled, Pedro Ramirez, Jr. v. Hertz Global Holdings, Inc., et al. In November 2013, a putative shareholder class action, Pedro Ramirez, Jr. v. Hertz Global Holdings, Inc., et al., was commenced in the U.S. District Court for the District of New Jersey naming Hertz Holdings and certain of its officers as defendants and alleging violations of the federal securities laws. On March 31, 2021, the plaintiffs filed with the U.S. District Court for the District of New Jersey a notice of voluntary dismissal with prejudice, and an order dismissing the case with prejudice was entered on April 1, 2021. The complaint alleged that Hertz Holdings made material misrepresentations and/or omission of material fact in its public disclosures during the period from February 25, 2013 through November 4, 2013, in violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The complaint sought unspecified monetary damages on behalf of the purported class and an award of costs and expenses, including counsel fees and expert fees. In June 2014, Hertz Holdings moved to dismiss the amended complaint. In October 2014, the court granted Hertz Holdings' motion to dismiss without prejudice, allowing the plaintiff to amend the complaint a second time. In November 2014, plaintiff filed a second amended complaint which shortened the putative class period and made allegations that were not substantively very different than the allegations in the prior complaint. In early 2015, Hertz Holdings moved to dismiss the second amended complaint. In July 2015, the court granted Hertz Holdings' motion to dismiss without prejudice, allowing plaintiff to file a third amended complaint. In August 2015, plaintiff filed a third amended complaint which included additional allegations, named additional then-current and former officers as defendants and expanded the putative class period to extend from February 14, 2013 to July 16, 2015. In November 2015, Hertz Holdings moved to dismiss the third amended complaint. The plaintiff then sought leave to add a new plaintiff because of challenges to the standing of the first plaintiff. The court granted plaintiff leave to file a fourth amended complaint to add the new plaintiff, and the new complaint was filed on March 1, 2016. Hertz Holdings and the individual defendants moved to dismiss the fourth amended complaint with prejudice on March 24, 2016. In April 2017, the court granted Hertz Holdings' and the individual defendants' motions to dismiss and dismissed the action with prejudice. In May 2017, plaintiff filed a notice of appeal and, in June 2018, oral argument was conducted before the U.S. Court of Appeals for the Third Circuit. In September 2018, the court affirmed the dismissal of the action with prejudice. On February 5, 2019, plaintiff filed a motion to set aside the judgment against it, and for leave to file a fifth amended complaint. The proposed amended complaint would add allegations related to New Hertz's December 31, 2018 settlement with the SEC that, among other things, ordered New Hertz to cease and desist from violating certain of the federal securities laws and imposed a civil penalty of $16.0 million. On February 26, 2019, New Hertz filed an opposition to plaintiff's motion for relief from judgment and leave to file a fifth amended complaint. On March 8, 2019, plaintiff filed a reply in support of that motion. On September 30, 2019, the court denied plaintiff's motion for relief from judgment and leave to file a fifth amended complaint. On October 30, 2019, plaintiff filed a notice of appeal with the U.S. Court of Appeals for the Third Circuit. On October 13, 2020, the U.S. Court of Appeals for the Third Circuit affirmed the denial of the plaintiff's motion for relief from judgment with respect to the former officers. On March 30, 2021, the plaintiffs filed with the U.S. Court of Appeals for the Third Circuit an unopposed motion for voluntary dismissal of the putative shareholder class action with prejudice, which was granted on April 5, 2021. On March 31, 2021, the plaintiffs filed with the U.S. District Court for the District of New Jersey a notice of voluntary dismissal with prejudice, and an order dismissing the case with prejudice was entered on April 1, 2021. Herc Holdings Inc., together with its subsidiaries, operates as an equipment rental supplier. It rents aerial, earthmoving, material handling, trucks and trailers, air compressors, compaction, and lighting equipment, as well as generators, and safety supplies and expendables; and provides ProSolutions, an industry-specific solution-based services, such as pumping solutions, power generation, climate control, remediation and restoration, and studio and production equipment. Herc Holdings Inc. is based in Bonita Springs, Florida. HG OHIO: Nurses Seek Pay for Missed Breaks, Overtime ---------------------------------------------------- Janae Miller and Tylor Armstrong, individually and on behalf of all others similarly situated, Plaintiffs, v. HG Ohio Employee Holding Corp., HG Ohio Operations LLC, HG Ohio Corporation and Holland Management, Inc., Defendants, Case No. 21-cv-03978 (S.D. Ohio, July 19, 2021), seeks redress for failure to pay employees wages seeking all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. HG owns and operates at least twelve senior living communities to provide services to their residents. It has with over 35 years of experience in the housing, health care, and property management industry, and provides senior apartments, assisted living, rehabilitative therapy, skilled nursing, home health care, family vacation lodge and country club management. Plaintiffs worked as nurses for HG. They claim that Defendants deducted 30 minutes for a meal break regardless of whether they actually took an uninterrupted 30-minute meal break. They also claim to have worked more than 40 hours in given workweek without being paid overtime. [BN] Plaintiff is represented by: Matthew J.P. Coffman, Esq. Adam C. Gedling, Esq. Kelsie N, Hendren, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: (614) 949-1181 Fax: (614) 386-9964 Email: mcoffman@mcoffmanlegal.com agedling@mcoffmanlegal.com khendren@mcoffmanlegal.com HILTON MANAGEMENT: N.D. California Refuses to Remand Collins Suit ----------------------------------------------------------------- The U.S. District Court for the Northern District of California denies the Plaintiff's motion to remand to state court the lawsuit titled SHASTA COLLINS, Plaintiff v. HILTON MANAGEMENT LLC, Defendant, Case No. 21-cv-02523-JD (N.D. Cal.). Named Plaintiff Shasta Collins sued Hilton Management, LLC, in the Superior Court of the State of California for the County of San Francisco on behalf of a putative class of non-exempt employees for wage and hour violations under California law incurred while working at the Hilton San Francisco Union Square Hotel. Hilton removed to federal court under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1332(d). The Plaintiff has asked for the case to be remanded because Hilton has not plausibly established the $5 million amount in controversy required for CAFA jurisdiction. District Judge James Donato notes that Collins does not contest the minimum diversity of citizenship required under CAFA, nor does she contend that the putative class is less than 100 individuals. The only disputed issue is whether Hilton plausibly demonstrated that the amount in controversy exceeds $5 million. Judge Donato holds that Hilton has made an adequate showing on that score. To start, there is no presumption against removal when CAFA jurisdiction is alleged, as Collins suggests. To the contrary, Congress intended CAFA to be interpreted expansively in favor of removal. A plaintiff need not introduce extrinsic evidence of her own to challenge the defendant's estimates. She may rely entirely on a reasoned argument as to why any assumptions on which defendant's numbers are based are not supported by evidence, Judge Donato notes, citing Harris v. KM Indus., Inc., 980 F.3d 700 (9th Cir. 2020). Judge Donato points out that that is what Collins has done--she contests Hilton's evidence and reasoning, without introducing any evidence of her own. Although the complaint alleges a variety of claims, Hilton has elected to estimate the jurisdictional amount based on meal and rest break violations, and waiting time penalties. It also factors in an estimated 25% recovery for attorney's fees. Judge Donato holds that Hilton has plausibly shown that the amount in controversy for the alleged meal and rest break violations is approximately $4.46 million. Hilton's "labor and team member" director filed a declaration stating that payroll records indicated a putative class of approximately 1,737 current and former employees within the class definition alleged in the complaint. Overall, Hilton used conservative numbers for wages, workweeks, and potential violations, based on its business records and reasonable inferences from the complaint. Collins's main objection to all of this is that Hilton unreasonably assumed each of the 1,737 putative class members experienced one meal or rest break violation per week. The point is not well taken, Judge Donato states. Collins says that the complaint qualifies the alleged meal and rest break violations with phrases such as "from time to time" and "periodically," which she believes makes Hilton's reasoning inherently implausible. But the complaint also alleges that Hilton deprived workers of meal and rest breaks "systematically" on a "uniform" basis pursuant to a "strict corporate policy and practice." Collins says that she personally was "often" interrupted during rest breaks and went "many days" without even a partial lunch. The complaint alleges generally that, even when putative class members had an opportunity to take their rest breaks, the breaks were noncompliant with California Labor Code sections 226.7 and 512 because they "were required to remain on the premises, on-duty, and on-call." Hilton has also plausibly demonstrated that the amount in controversy for waiting time penalties under California Labor Code Section 203 is approximately $2.5 million, Judge Donato holds. For this claim, Hilton determined from its payroll records that the putative class consists of 840 non-exempt employees (589 full-time and 251 part-time) whose employment ended with Hilton during the class period. This smaller class is appropriate because only previously discharged employees may allege a Section 203 claim. Ms. Collins repeats the objection that Hilton assumed too much here. But why that is so is left unexplained, Judge Donato observes. Collins appears to say that Hilton should have finetuned its analysis to expressly determine which former employees were the subject of a noncompliant meal or rest break practice but plausibility does not demand such a granular degree of specificity, and Hilton is not required to prove Collins's case to support removal. The complaint expressly seeks attorney's fees under California Labor Code Section 218.5 and related provisions. Judge Donato holds that Hilton properly included an attorney's fees estimate in determining the amount in controversy, and posits a 25% recovery on the waiting time penalty estimate of $2.5 million. Collins says that the 25% recovery estimate is too generous, but a 25% award is reasonable in these circumstances, Judge Donato notes. Consequently, the Court credits approximately $626,000 in estimated fees toward the jurisdictional amount, which represents 25% of $2.5 million. Accordingly, Hilton has plausibly shown "that it is reasonably possible that the potential liability exceeds $5 million" in this case. The case was properly removed under CAFA, and a remand is denied. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/y2ykhfyf from Leagle.com. HL WELDING: Yanez Class Action Gets Initial Approval ---------------------------------------------------- In the class action lawsuit captioned as LUIS LOPEZ YANEZ; KAYASONE MUONGKHOT; and JULIO RUBIO, on behalf of themselves and all others similarly situated, v. HL WELDING, INC., Case No. 3:20-cv-01789-MDD (S.D. Cal.), the Hon. Judge Mitchiell D. Dembin entered an order granting the Plaintiffs' motion for preliminary approval of class action, Fair Labor Standards Act (FLSA) Collective Action, and Private Attorneys' General Act (PAGA) Settlement as follows: 1. Simpluris, Inc. is appointed as Settlement Administrator. 2. Notice of the proposed settlement, and the rights of Settlement Class Members, including the right to opt out of the settlement, shall be given by mailing of the Notice of Class Action and PAGA Settlement by first class, postage prepaid, to all Settlement Class Members and PAGA Recipients pursuant to the applicable provisions in the Stipulation. HL Welding shall provide the Settlement Administrator with the information necessary to conduct this mailing as set forth in the Stipulation. 3. A hearing shall be held before this Court on December 15, 2021 at 1:30 p.m. 4. In the event that the Effective Date occurs, all Settlement Class Members will be deemed to have forever released and discharged the Released Claims. In the event that the Effective Date does not occur for any reason whatsoever, the Stipulation shall be deemed null and void and shall have no effect whatsoever. On June 2, 2021, the Plaintiffs filed a First Amended Complaint (FAC), which is the operative complaint in this case. The Plaintiffs allege: (1) failure to pay overtime wages under California Labor Code sections 510, 1194; (2) failure to furnish accurate wage statements under California Labor Code; (3) waiting time penalties under California Labor Code; (4) unfair competition under California Business and Professions Code; (5) civil penalties under PAGA, California Labor Cod; and (6) failure to pay overtime wages under FLSA. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3yfgusT at no extra charge.[CC] HOME DEPOT: Class Cert. Bid Filing Continued to August 27 --------------------------------------------------------- In the class action lawsuit captioned as Barragan, et al., v. Home Depot U.S.A., Inc., et al., Case No. 3:19-cv-01766 (S.D. Cal.), the Hon. Magistrate Judge Andrew G. Schopler entered an order granting parties' joint motion to continue the deadline for class certification. The deadline for filing a motion for class certification is continued to August 27, 2021, says Judge Schopler. The nature of suit states Labor -- Other Labor Litigation. Home Depot is the largest home improvement retailer in the United States, supplying tools, construction products, and services.[CC] HOMETOWN AMERICA: CLCA Suit Remanded to Pasco County State Court ---------------------------------------------------------------- The U.S. District Court for the Middle District of Florida, Tampa Division, remands to the state court the lawsuit entitled CRYSTAL LAKE COMMUNITY ASSOCIATION, INC., Plaintiff v. PATRICK ZILIS, HOMETOWN AMERICA COMMUNITIES INC., HOMETOWN AMERICA MANAGEMENT, LLC, HOMETOWN COMMUNITIES LIMITED PARTNERSHIP, REALTY SYSTEMS, INC., MHC OPERATING LIMITED PARTNERSHIP, EQUITY LIFESTYLE PROPERTIES, INC., MHC CRYSTAL LAKE, LLC, ERIC ZIMMERMAN, STANLEY MARTIN, SCOTT MAUPIN, SYDNEY MORRIS, LINDA TOLENTINO, KATE RUSSO, FLORIDA MANUFACTURED HOUSING ASSOCIATION, INC., J. ALLEN BOBO, LUTZ, BOBO & TELFAIR, P.A. and HOMETOWN COMMUNITIES, LLC, Defendants, Case No. 8:21-cv-151-CEH-AAS (M.D. Fla.). The matter is before the Court on the parties' responses to the Court's Order to Show Cause. On March 1, 2021, the Court directed the parties to show cause why this action should not be remanded to state court. The Court, having carefully considered the parties' responses, reviewed the pleadings, and otherwise being fully advised in the premises, declines to exercise supplemental jurisdiction over the Plaintiff's claim and remands this action to the Sixth Judicial Circuit in and for Pasco County. The Plaintiff, Crystal Lake Community Association, Inc., initiated the action by filing a two-count complaint in the Sixth Judicial Circuit in and for Pasco County, Florida. The action was removed to federal court by the Defendants based on the Court's original jurisdiction over the Plaintiff's claim brought under the Americans with Disabilities Act ("ADA"). The Defendants alternatively asserted subject matter jurisdiction is proper in this court based on the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d). On Feb. 25, 2021, the Plaintiff amended its complaint dropping the federal claim under the ADA and stating only a single cause of action under Florida law. Neither the original complaint nor the amended complaint explicitly cites to the CAFA, and it is not apparent from review of the Amended Complaint that the Court has jurisdiction on this basis. Absent subject matter jurisdiction under the CAFA, the Court still has supplemental jurisdiction over the Plaintiff's state law claim pursuant to 28 U.S.C. Section 1367(a). However, given the nature of the sole state law claim, the circumstances of this case, and the procedural posture, the Court finds retaining jurisdiction is inappropriate. In its Amended Complaint, the Plaintiff sues on behalf of itself in its representative capacity and 450 current and former mobile homeowners in the Crystal Lake Mobile Home Park. The Plaintiff names 18 individual and corporate Defendants it alleges fit into four defined relationships: Hometown Park Sale Defendants, MHC/ELS Park Purchase Defendants, FMHA Trade Association Defendant, and Lutz Bobo Law Firm Defendants. At least half of the Defendants are alleged to be Florida citizens, some are non-Florida citizens, and the citizenship of the LLC and LP Defendants is unclear. The Plaintiff is a Florida citizen. The Plaintiff sues the Defendants in a single claim under Florida law for alleged violations of Florida's Antitrust Act, Chapter 542, Fla. Stat. As previously noted, while the Court is not required to remand the case here, it may nevertheless decline to continue exercising supplemental jurisdiction over the Plaintiff's remaining state law claim. In its response to the Court's order to show cause, the Defendant, Florida Manufactured Housing Association, Inc., argues that CAFA provides federal jurisdiction. The Court disagrees as the Plaintiffs have not alleged a claim under CAFA. Moreover, the Defendants fail to carry their burden to establish the Plaintiff's claims arise under CAFA or that the jurisdictional threshold for a claim under the CAFA has been satisfied. Next, the Defendants contend that because of the federal nature of the Plaintiff's Florida Antitrust Act claim, the body of law that will guide the determination of the claim presented in the Amended Complaint is federal law. Thus, the Defendants contend it would be more convenient for both sides and more judiciously economical, to be proceeding in federal court. Given the early stages of this action and the filing of the Amended Complaint, in which CAFA is not alleged and the sole federal claim has been dropped, along with consideration of the principles of judicial economy, convenience, fairness, and comity, the Court declines to exercise its discretion to retain jurisdiction over the Plaintiff's remaining state law claim under the Florida Antitrust Act. As an initial matter, the Court finds considerations of judicial economy weigh against exercising supplemental jurisdiction. The pleadings are still in the initial stages of litigation, and the Court has not expended considerable resources at this stage of the proceedings, District Judge Charlene Edwards Honeywell states, citing Lake Cnty. v. NRG/Recovery Grp., Inc., 144 F.Supp.2d 1316, 1321 (M.D. Fla. 2001). Judge Honeywell also holds that considerations of comity do not support exercising supplemental jurisdiction. And although the Defendants contend the Florida Legislature construes the Florida Antitrust Act with due consideration of federal antitrust statutes, the claim is nevertheless based on a Florida statute. The Court has considered the Defendants' contention that the antitrust claims will be guided by federal law, but concludes that, at best, this factor is neutral, particularly considering that issues related to the Florida Mobile Home Act may also be implicated in this action as noted in the parties' Case Management Report. Judge Honeywell further holds that considerations of convenience do not weigh against declining to exercise supplemental jurisdiction. Because this case originated in state court and it appears that many of the parties are Florida citizens, the parties will not be inconvenienced by litigating the remaining state law claim in state court. Finally, considerations of fairness do not weigh against declining to exercise supplemental jurisdiction here, Judge Honeywell notes. To the contrary, a remand to state court merely effectuates the Plaintiff's original choice of a state forum. For the reasons stated, the Court declines to continue to exercise supplemental jurisdiction over the Plaintiff's state law claim. Accordingly, the action is remanded to the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the Sixth Judicial Circuit Court, in and for Pasco County, Florida. The Clerk is further directed to terminate any pending deadlines and close this case. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/2ms3axk5 from Leagle.com. HOMEWORKS ENERGY: Class Cert. Bid Must be Filed by Feb. 21, 2022 ---------------------------------------------------------------- In the class action lawsuit captioned as JOSEPH GIGUERE, on behalf of himself and others similarly situated, v. HOMEWORKS ENERGY, INC., MARTIN FLEUREN, individually, and MAX VEGGEBERG, Case No. 3:21-cv-30015-MGM (D. Mass.), the Hon. Judge Mark G. Mastroianni entered a scheduling order as follows: 1. The parties shall exchange initial disclosures as required by Fed. R. Civ. P. 26(a)(1) on or before July 22, 2021. 2. Non-expert discovery, as to the named Plaintiff, shall be completed by January 21, 2022. 3. The Plaintiff shall file a motion for class certification by February 21, 2022. 4. The Defendant shall file any opposition to the motion for class certification by March 23, 2022. 5. The Plaintiff may file a reply brief in support of the motion for class certification by April 13, 2022. 6. A hearing on the motion for class certification will held on April 26, 2022, at 11:00 a.m. If no motion for class certification is filed, this hearing shall be converted to a status conference. HomeWorks specializes in energy assessment and consulting. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/378REPz at no extra charge.[CC] HOWARD L. NATIONS: Gaudet Appeals Denial of Class Cert. Bid ----------------------------------------------------------- Plaintiffs Deborah A. Gaudet, et al., file an appeal from a court ruling entered in the lawsuit styled DEBORAH A. GAUDET, ET AL., v. HOWARD L. NATIONS, APC, ET AL., Case No. 2:19-CV-10356, in the U.S. District Court for the Eastern District of Louisiana, New Orleans. As reported in the Class Action Reporter on July 6, 2021, the Hon. Judge Wendy B. Vitter entered an order denying Plaintiffs' motion for class certification of: "All BP Class members, represented by Defendants' joint venture in the BP Deepwater Horizon Oil Spill Class Action Settlement Program, who lost the opportunity to participate in the BP Settlement Program for their subsistence losses because Defendants failed to timely file a complete BP Subsistence Claim on the client's behalf." The Court said, "Although the Court is deeply troubled by the allegations in the Third Amended Complaint and the instant Motion, namely, that the Defendants worked together to operate a "client mill" by soliciting and engaging as many clients as possible and then took a "cavalier and careless attitude toward their clients" that resulted in their BP Subsistence Claims getting denied, the Court finds that Plaintiffs have failed to show that their breach of contract and legal malpractice claims are appropriate for class certification under Fed. R. Civ. P. 23(a) and 23b)(3)." This matter arises out of the April 20, 2010 Deepwater Horizon oil spill in the Gulf of Mexico (the "BP Oil Spill"), and the Deepwater Horizon Economic and Property Damage Settlement Agreement (the "BP Settlement Agreement") that was created to provide monetary compensation for the losses sustained as a result of the BP Oil Spill. The BP Settlement Agreement allowed individuals to file a claim for their losses caused by the BP Oil Spill, including claims for subsistence losses (Subsistence Claims) caused by closing Gulf Coast fishing areas due to contamination from the BP Oil Spill. The claims were processed by the Deepwater Horizon Economic Claims Center (the DHECC). The Plaintiffs are taking an appeal from the order entered by Judge Vitter denying their motion for class certification. The appellate case is captioned as Gaudet v. Howard L. Nations, Case No. 21-90034, in the US Court of Appeals for the Fifth Circuit, filed on July 16, 2021.[BN] Plaintiffs-Appellants Deborah A. Gaudet, Ray Gaudet, Timothy Butler, Dian B. Campbell, Kristine Collins, Regina Falgoust, Abraham Gamberella, Adam J. Hebert, Fred Ledet, Stanwood Moore, Jr., and James Scales, III, Individually and on Behalf of a Class of All Other Similarly Situated Persons, are represented by: Jerald P. Block, Esq. BLOCK LAW FIRM, A.P.L.C. P.O. Box 108 Thibodaux, LA 70302-0108 Telephone: (985) 446-0418 E-mail: jpb@blocklawfirm.com Defendants-Appellees Howard L. Nations, A Professional Corporation; Nicks Law Firm, L.L.C.; Rueb & Motta, A.P.L.C.; Joseph A. Motta, Attorney at Law, A.P.L.C.; Rueb Law Firm, A.P.L.C.; Howard L. Nations; Cindy L. Nations; Shantrell Nicks; Gregory D. Rueb; and Joseph A. Motta are represented by: Joanne Rinardo, Esq. Judy Lynn Burnthorn, Esq. Joanne Rinardo, Esq. DEUTSCH KERRIGAN, L.L.P. 755 Magazine Street New Orleans, LA 70130 Telephone: (504) 593-0616 E-mail: jburnthorn@deutschkerrigan.com - and - Tamekia Rochelle Goliday, Esq. GOLIDAY LAW FIRM 1500 Jacksonian Plaza Jackson, MS 39211 Telephone: (601) 368-1800 Telephone: (504) 593-0688 - and - Brian Joseph Capitelli, Esq. CAPITELLI & WICKER 1100 Poydras Street, Energy Centre New Orleans, LA 70163 Telephone: (504) 582-2425 E-mail: brian@capitelliandwicker.com HUDSON BAY: Judge Balks at Data Breach Class Settlement Deal ------------------------------------------------------------ Alison Frankel, writing for Reuters, reports that U.S. District Judge Kevin Castel of Manhattan joined a very small club. The judge granted preliminary approval to a pair of proposed class action settlements stemming from a 2018 breach of payment card information from Saks and Lord & Taylor customers. But Castel balked at a one particular piece of the proposed deals, in which the stores' parent, Hudson Bay Co ULC, agreed to pay as much as $2 million to consumers and up to $4 million to financial institutions affected by the breach. In a two-page order, Castel said that the proposed settlements made it too hard for objectors to challenge the class deals. On his own accord, the judge revised the terms of the proposals to knock down some of the deals' barriers for objectors. Only a handful of other federal judges have issued written orders rejecting obstacles for objectors in classwide settlement agreements. I found three such decisions issued in 2012: from U.S. District Judge Richard Jones of Seattle in McClintic v. Lithia Motors Inc; U.S. District Judge Jeffrey White of Oakland, California, in Smith v. Levine Leichtman Capital Partners Inc; and U.S. District Judge Kathryn Vratil of Kansas City, Kansas, in Freebird Inc v. Merit Energy Co. In 2019, U.S. District Judge William Alsup of San Francisco issued an opinion denying preliminary approval to a class of Samsung plasma television purchasers in part because the procedures for objectors were "so onerous (that they) tank the settlement." Castel's order in the Hudson Bay cases pointed out that judges' fiduciary duty to absent class members obliges them to "consider all meritorious arguments brought to (their) attention." It's not supposed to be unduly hard for settlement objectors to raise challenges, the judge said, yet the Hudson Bay proposed settlements would have required objectors to submit detailed information about their previous objections and their lawyers' previous work on behalf of objectors. The agreements also would have required disclosures about objectors' fee agreements with counsel. That was too burdensome, according to Castel. "The proposed requirements would have needlessly frustrated and discouraged objections to the settlement, with no countervailing benefits to the court or the class," the judge wrote. Under the preliminary approval orders Castel granted, objectors must simply provide their name and contact information (and that of their lawyers) and a specific explanation of the reason for their objection. I emailed Hudson Bay counsel from Morgan, Lewis & Bockius about Castel's changes to the proposed deals but didn't hear back. I also didn't receive a response from Scott + Scott, which represents financial institutions suing Hudson Bay, or from Faruqi & Faruqi and Calcaterra Pollack, which are leading the consumers' case. Eric Alan Isaacson, who frequently represents objectors (and is himself an occasional objector) said orders like Castel's are rare because potential objectors may not even realize their rights are at stake until after proposed settlements have received preliminary approval and notices have gone out to class members. By then, Isaacson said, it's usually too late for objectors to contest provisions that make it more difficult for them to challenge settlement agreements. Occasionally, judges will press defense lawyers and class counsel at preliminary approval hearings about burdensome requirements for objectors, Isaacson said. Sometimes judges will insist at hearings on loosening the requirements, he said, but it's hard to track those instances because there's no written order. More often, Isaacson said, "judges are not paying much attention to the issue." In 2019, objectors represented by the Hamilton Lincoln Law Institute protested tough requirements for challenges to the $380.5 million Equifax Inc data breach settlement, arguing (among many other things) that it was unfair to require objectors to disclose details of their fee agreements with counsel, among other obstacles. "Courts should avoid notice language that places ‘burdensome hurdles'" on objectors' rights, the brief said, quoting the Federal Judicial Center's class action checklist. Hamilton Lincoln's objection failed to derail the Equifax settlement -- and its director Ted Frank told me by email that his group doesn't often attempt at the preliminary approval stage of class action settlements to challenge onerous requirements for objectors. "We rarely have notice," he said. "And even if we did, it's easier to write the boilerplate 60-page declaration listing our hundred-plus objections than to file a motion to intervene and then challenge the requirements." What Frank and Isaacson imply is a vicious circle, in which potential objectors don't even realize that settlement agreements impose high barriers to their participation until it's too late for them to try to knock those barriers down. Realistically, in other words, it's up to judges overseeing class actions, like Castel in the Hudson Bay case, to make sure objectors have an opportunity to play their prescribed part in the class settlement process. Of course, lots of class action lawyers would tell you that objectors are just gumming up the works, holding class members hostage for their own financial or ideological purposes. Regardless, the federal rules allow for absent class members to raise concerns about proposed settlements, and, as Castel noted in his Hudson Bay order, judges have a duty to listen to reasonable challenges. I say good for him for assuring that objecting class members in the case before him will have an opportunity to be heard. Read more: Hudson's Bay Co inks data breach deals with financial institutions, consumers Class action watchdog Ted Frank files objection to Equifax deal [GN] HY-VEE INC: Minnesota Court Dismisses GreenState Data Breach Suit ----------------------------------------------------------------- The U.S. District Court for the District of Minnesota grants the Defendant's motion to dismiss the lawsuit titled Greenstate Credit Union on Behalf of Itself and All Others Similarly Situated, Plaintiff v. Hy-Vee, Inc., Defendant, Case No. 20-621 (DSD/DTS) (D. Minn.). The class action dispute arises out of Hy-Vee's handling of a data breach that exposed consumers' credit card data. Plaintiff GreenState Federal Credit Union is a federally chartered credit union with its principal place of business in Iowa. Hy-Vee is incorporated in Iowa and has its principal place of business in Iowa. Hy-Vee operates supermarkets, convenience stores, and gas stations, with 240 retail stores in eight states, including Minnesota. GreenState has 26 branch locations, all located in Iowa. GreenState membership is open to: (1) individuals living and working in Iowa, as well as some counties in Illinois or Wisconsin that border Iowa; (2) University of Iowa students, staff, and alumni; and (3) direct relatives of current members. 1,158 of approximately 210,000 members--about one-half of 1%--have Minnesota addresses. Thirty-eight of Hy-Vee's 264 stores are in Minnesota. 12.38% of Hy-Vee's revenue comes from Minnesota, and 13.77% of Hy-Vee's employees work in Minnesota. Hy-Vee's information technology department, chief technology officer, and information security team operate in Iowa. They are responsible for decisions regarding Hy-Vee's data and information security policy and practices, all of which are made in Iowa. In payment card transactions, there are four primary parties: the merchant, the acquiring bank, the card network, and the card issuer. In this context, Hy-Vee is a merchant that requests authorization of the transaction from the card's issuer. An acquiring bank contracts with the merchant to process the transaction. Card networks, such as Visa or MasterCard, are payment processors. An acquiring bank receives purchase receipts from the merchant, pays the merchant, and forwards the receipt to the card's issuer. GreenState is a card issuer, which issues payment cards to its members and authorizes transaction requests from merchants, reimburses the acquiring bank, and posts the charges on its member's payment card account. From November 2018 to August 2019, computer hackers installed malicious software (malware) on Hy-Vee's point-of-sale systems. Using this malware, the hackers accessed Hy-Vee customers' card data, which included the cardholder's name, card number, and expiration date. GreenState alleges that its members used their payment cards to make purchases at Hy-Vee locations in Minnesota, and at least one payment card issued by GreenState was compromised after being used by a member at a Hy-Vee location in Minnesota. GreenState alleges that Hy-Vee failed to implement adequate data security measures to protect against data breaches, and failed to timely discover and contain the breach. GreenState specifically asserts that Hy-Vee refused to implement certain best practices, failed to upgrade critical security systems, used outdated point-of-sale systems, ignored warnings about the vulnerability of its computer network, and disregarded and/or violated applicable industry standards. GreenState alleges Hy-Vee's failures harmed it--and other financial institutions--because GreenState was required to cancel compromised cards, reissue new cards, and reimburse members for fraudulent charges. GreenState also alleges that it suffered direct property damage to its payment cards and costs due to lost interest and transaction fees. GreenState commenced this action on Feb. 27, 2020, alleging claims under the Minnesota Plastic Card Security Act (PCSA), common law negligence, negligence per se, and for declaratory and injunctive relief. On April 23, 2020, Hy-Vee moved to dismiss for lack of personal jurisdiction or, alternatively, to transfer venue. The court denied Hy-Vee's motion. Hy-Vee now moves to dismiss the complaint for failure to state a claim. Discussion Hy-Vee argues that this suit should be dismissed because Iowa substantive law applies under choice of law rules, and GreenState fails to state claims under Iowa law. GreenState responds that the choice of law inquiry is premature. If the Court conducts the choice of law determination, however, GreenState argues that Minnesota law applies and that it properly pleads its claims. The Court determines that the choice of law inquiry is appropriate at this time and that Iowa law applies. District Judge David S. Doty notes that the Court is satisfied that it has sufficient information to make a choice of law determination because the factual record details where relevant conduct took place, citing Lapushner v. Admedus Ltd., No. 20-cv-572, 2020 WL 5106818, at *3 (D. Minn. Aug. 31, 2020). If there is an outcome determinative conflict and the law of both states can be constitutionally applied, then the Court applies Minnesota's multifactor test, which uses the Leflar factors, to determine which states' law should apply. The parties dispute whether there is an outcome determinative conflict regarding GreenState's negligence claims. At issue is whether Iowa's economic loss rule bars GreenState's negligence claims. The Court finds that it does, and, therefore, there is an outcome-determinative conflict. GreenState argues that payment card data is akin to "property" that can be "damaged," and, consequently, it is not economic loss. The data breach rendered the payment cards, and its accompanying data, useless and valueless, and GreenState had to mitigate additional damages, including the replacement and reissuing of payment cards. The Court finds GreenState's argument unpersuasive. Here, GreenState's negligence claim would be barred by Iowa's economic loss doctrine, Judge Doty holds. GreenState's alleged injuries--cancelling compromised cards, reissuing new cards, reimbursing members for fraudulent charges, and losing interest and transaction fees because of reduced card use--are all indirect economic losses. GreenState's injuries do not constitute property damage to its members' payment cards. Because GreenState alleges nothing more than economic losses, Iowa law bars its negligence claims, Judge Doty points out. Judge Doty also notes, among other things, that whether the Court could constitutionally apply Minnesota law is a close call. On the one hand, the contacts of GreenState's claims with Minnesota are not seemingly significant. GreenState's injury--cancelling compromised cards, reissuing new cards, and reimbursing members--is felt in Iowa. The actions and omissions by Hy-Vee giving rise to GreenState's claims--its data security decision-making and the actions of the information technology department--all occurred in Iowa. Both parties are Iowa residents. On the other hand, Judge Doty opines that Glover v. Merck & Co., Inc., 345 F.Supp.2d 994, 997-98 (D. Minn. 2004), suggests that Hy-Vee doing business and processing payment cards in Minnesota may be sufficient for constitutional purposes. Even if the Court found that it could constitutionally apply Minnesota law, the choice of law factors weigh in favor of Iowa law. The Court evaluates the following factors to determine which law to apply: "(1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law." The parties agree that the third factor is neutral and that the fifth factor is not relevant. The "Predictability of Results" factor is usually not of great importance" in tort cases because of the unplanned nature of accidents, Judge Doty observes. Here, however, this factor may still tip in favor of applying Iowa law. All of Hy-Vee's relevant information security employees and decision-making are located in Iowa. Hence, it is predictable that Iowa law would apply. The "Maintenance of the Interstate Order" factor heavily favors Iowa law, Judge Doty notes. Both parties are Iowa residents, and all of GreenState's branches are in Iowa. The actions and omissions by Hy-Vee giving rise to GreenState's claims--its data security decision-making and the actions of the information technology department--are based in Iowa. Minnesota's governmental interest in this tort action is not significantly furthered, and the "Advancement of State Interests" factor weighs in favor of Iowa law, Judge Doty opines. In sum, Minnesota's choice of law inquiry favors the application of Iowa law. Accordingly, the Court applies Iowa law, and, as detailed above, GreenState's PCSA and negligence claims must be dismissed. Declaratory and Injunctive Relief Claim GreenState's remaining claim is for declaratory and injunctive relief, premised on its dismissed negligence claims. Because the Court dismissed GreenState's substantive claims, it also dismisses GreenState's claim for declaratory and injunctive relief. Conclusion Accordingly, the motion to dismiss is granted; and the action is dismissed with prejudice. A full-text copy of the Court's order dated July 19, 2021, is available at https://tinyurl.com/5cczej4b from Leagle.com. Kate M. Baxter-Kauf, Esq. -- kmbaxter-kauf@locklaw.com -- and Lockridge Grindal Nauen PLLP, 100 Washington Avenue South, Suite 2200, in Minneapolis, Minnesota 55401, counsel for the Plaintiff. Paul G. Karlsgodt, Esq. -- pkarlsgodt@bakerlaw.com -- and Baker & Hostetler LLP, 1801 California Street, Suite 4400, in Denver, Colorado 80202, counsel for the Defendant. ICON CLINICAL: Nesbeth Must File Class Cert Bid by Sept. 27 ----------------------------------------------------------- In the class action lawsuit captioned as CARLOS O. NESBETH, et al., individually and on behalf of all others similarly situated, v. ICON CLINICAL RESEARCH LLC, et al., Case No. 2:21-cv-01444-PD (E.D. Pa.), the Hon. Judge Paul S. Diamond entered an order that: 1. Any motions to amend or to add parties to the above- captioned case shall be filed by no later than September 20, 2021; 2. Plaintiffs shall file their motion for class certification by September 27, 2021. Defendants shall file their opposition to the motion for class certification by November 15, 2021 and Plaintiffs shall file their reply brief by December 15, 2022; 3. The parties shall complete all fact discovery and depose all fact witnesses on or before January 24, 2022; 4. The Parties should conduct discovery remotely (e.g. take depositions by videoconference or telephone) pending further Order of the Court; and 5. Plaintiffs shall identify and disclose all expert witnesses and expert reports on or before March 1, 2022. Defendants shall identify and disclose all expert witnesses and reports on or before April 11, 2022. Rebuttal experts shall be permitted only by leave of court. Expert discovery shall be completed by May 16, 2022. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3la0apY at no extra charge.[CC] IMPAC MORTGAGE: Appeals Court Upholds Summary Judgment in Timm Suit ------------------------------------------------------------------- In the lawsuit titled IMPAC MORTGAGE HOLDINGS, INC. v. CURTIS J. TIMM, ET AL., Case No. 18, September Term 2020 (Md.), the Court of Appeals of Maryland affirms the judgment issued by the Court of Special Appeals. Judge Robert N. McDonald, writing for the Panel, notes that this case concerns the interpretation of an ambiguous provision in the charter of a corporation--an instrument that is regarded, under Maryland law, as a contract between the corporation and its shareholders. Petitioner Impac Mortgage Holdings, Inc., a publicly-held Maryland corporation, decided to raise some capital by issuing a series of preferred stock known as Series B. A provision of Impac's charter seemingly prohibited it from adversely changing the special rights and preferences of Series B stock without the approval of the owners of two-thirds of Series B shares. The meaning of that provision was rendered ambiguous when Impac later issued a nearly identical series of preferred stock known as Series C. To carry out the issuance and sale of the Series B preferred stock that the board had authorized, the April 29, 2004 board resolution also authorized Impac's officers to contract with a group of underwriters headed by Bear Stearns & Co., Inc. to underwrite an initial public offering of those shares. In 2009, after the company fell on hard times during the Great Recession, Impac sought to buy back the shares of both series at a severe discount and to eliminate the special rights and privileges associated with those shares. Owners of two-thirds of the shares of both series, tallied together, approved the measure; however, owners of less than two-thirds of Series B did so, if the votes of shareholders of the two series were tallied separately. In Impac's view, the approval of two-thirds of the Series B and Series C shares, counted together, provided the requisite approval required by the charter provision relating to Series B shares. Respondents Curtis J. Timm and Camac Fund LP ("Camac"), who own some of the Series B shares that remain outstanding, disagree. Mr. Timm filed this action, which Camac later joined, in the Circuit Court for Baltimore City, seeking to restore the rights and preferences of Series B shares. In ruling on cross-motions for summary judgment, the Circuit Court found that the charter language was ambiguous and that the extrinsic evidence and interpretive aids referenced by the parties did not resolve the ambiguity. The court then construed the provision against Impac as the drafter of the provision, under a canon of construction that courts use to construe a contract when neither the contract language nor extrinsic evidence illuminates the parties' intent. The court ruled that shareholders of the two series of stock were to vote separately on Impac's proposal to buy back the shares and eliminate their special rights and privileges. The failure to obtain the approval of owners of two-thirds of the Series B shares doomed that proposal as to Series B. On appeal, the Court of Special Appeals opined that the charter language was unambiguous, but reached the same ultimate result. The Court of Appeals concludes that the charter provision is ambiguous. That ambiguity is resolved by the contemporaneous and undisputed documentation of Impac's undertaking to the Series B shareholders that it would not amend its charter adversely as to their shares unless the requisite supermajority of shares of that series voted to approve the amendment. Accordingly, without resorting to construing the charter provision against the drafter--which, in any event, was Impac--the Court of Appeals holds that the Circuit Court reached the correct result when it granted summary judgment in favor of the shareholders on that issue and that the Court of Special Appeals did not err in affirming that judgment. Background On Dec. 7, 2011, Mr. Timm filed a complaint in the Circuit Court for Baltimore City, on his own behalf and as a class action on behalf of the Series B and Series C shareholders who had not tendered their shares. He named as defendants Impac and various Impac officers and board members. The complaint alleged, among other things, that Impac's amendment of the Series B Articles Supplementary following the May 2009 tender offer was invalid because Impac had not obtained the requisite two-thirds approval from the Series B shareholders, tallied separately from the votes of Series C shareholders. The complaint included several counts alleging breach of the articles supplementary for both series, as well as a count alleging breach of fiduciary duty and of the obligation of good faith and fair dealing with respect to the articles supplementary. In his complaint, Mr. Timm asked that the action be certified as a class action with himself as class representative. His requests for relief included reinstatement of the original articles supplementary as to both series of preferred stock, a declaration of the rights of shareholders of both series under the respective articles supplementary, an order enjoining the Defendants from taking any action inconsistent with the rights of those shareholders under the original articles supplementary, an order authorizing those shareholders to set an election for two directors, compensatory damages if the requests for declaratory and injunctive relief were not granted, and punitive damages. Impac and the Individual Defendants moved to dismiss the complaint. Treating the motion as one for summary judgment, the Circuit Court granted judgment in favor of the Individual Defendants. As to Impac, the court granted the motion in part (including the claims related to the vote of Series C shares), but denied the motion as it related to Mr. Timm's claim that Impac was required to obtain two-thirds approval of the Series B shareholders in order to amend the Series B Articles Supplementary (Timm v. Impac Mortgage Holdings, Inc., 2013 WL 605867 (Md. Cir. Ct. Jan. 28, 2013)). In its memorandum opinion, the Circuit Court noted that the language of the Voting Provision of the Series B Articles Supplementary could be interpreted in two ways as to how Impac was to count the responses of Series B and Series C shareholders to the tender offer and consent solicitation. On the one hand, the court noted, the Voting Provision prohibited an amendment adverse to the rights and preferences of Series B shares "without the affirmative vote or consent of the holders of at least two-thirds of the shares of the Series B Preferred Stock outstanding at the time," thereby suggesting that only Series B shareholders could approve amendments to Series B Articles Supplementary. On the other hand, the Voting Provision specified that Series B shareholders were to vote on amendments "separately as a class with all series of Parity Preferred that the Corporation may issue upon which like voting rights have been conferred and are exercisable"--thereby suggesting instead that Impac could treat the two series as one "class" and amend the articles supplementary of both series if two-thirds of the shareholders in that "class" approved the amendments. Concluding that the Voting Provision in the Series B Articles Supplementary was ambiguous and that "its meaning cannot be fixed as a matter of law without consideration of extrinsic evidence to determine the parties' intent," the Circuit Court denied Impac's motion to dismiss as it related to the Voting Provision. A few months later, in June 2013, Camac Fund LP, also a Series B and Series C shareholder, filed a motion to intervene in the action. The Circuit Court granted that motion in March 2014 and Camac filed a "Class Action Complaint in Intervention" in the existing action. Camac's complaint was virtually identical to Mr. Timm's complaint, naming the same Defendants and causes of action and asserting class representative status on behalf of Series B and Series C shareholders, who had not tendered their shares. After a period of discovery, Impac moved, and Mr. Timm and Camac jointly cross-moved, for summary judgment on the grounds that there was no genuine dispute of material fact and that their respective interpretations of the Voting Provision entitled them to judgment as a matter of law. In support of their respective positions, the parties submitted extrinsic evidence in the form of documents, affidavits, and deposition testimony. Both sides also relied on various grammatical rules, cited statements made by Impac at the time of the tender offer, and pointed out similarities or distinctions between the Voting Provision and voting provisions in offerings of preferred stock by other companies. In a thorough memorandum opinion dated Dec. 29, 2017, the Circuit Court again concluded that the Voting Provision was ambiguous as to whether the Series B Articles Supplementary could be amended without approval of owners of two-thirds of Series B shares counted separately from Series C shares (Timm v. Impac Mortgage Holdings, Inc., 2017 Md. Cir. Ct. LEXIS 12 (Dec. 29, 2017)). Accordingly, the court considered the extrinsic evidence offered by the parties. Impac appealed. Mr. Timm cross-appealed concerning claims on which the Circuit Court had entered judgment in Impac's favor in 2013; Camac did not cross-appeal. The Court of Special Appeals affirmed the Circuit Court's judgment (Impac Mortgage Holdings, Inc. v. Timm, 245 Md.App. 84, 103 (2020)). However, it arrived there by a different route than the Circuit Court. The intermediate appellate court concluded that the Voting Provision was unambiguous and required a two-thirds vote of each series, tallied separately--which would compel the award of summary judgment in favor of Mr. Timm and Camac on that issue. Specifically, the Court of Special Appeals concluded that the clause providing that "the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds of the shares of the Series B Preferred Stock outstanding at the time" could only be interpreted to mean one thing: "that Impac can't take the actions that follow without the vote or consent, to the extent there's a difference, of the Class [sic] B shareholders." The Court of Special Appeals also found that the other clause at issue, which provides that Series B is "voting separately as a class with all series of Parity Preferred," refers simply to the fact that both series of preferred stock are to vote physically separately but at the same time — thereby effectuating the first clause. In sum, the intermediate appellate court concluded that the Voting Provision unambiguously means that "Series B and C shareholders vote, by class, at the same time, and their votes on proposed amendments are counted separately." Because it had concluded that the language of the Voting Provision was unambiguous, the intermediate appellate court did not address the extrinsic evidence submitted by the parties and analyzed by the Circuit Court. Nor did it need to evaluate Impac's argument that ambiguity in the language of the Voting Provision should be construed against the plaintiffs on the theory that Bear Stearns was the drafter and that the Plaintiffs stood in the shoes of Bear Stearns. Impac filed a petition for a writ of certiorari, which the Court of Appeals granted. Discussion To decide this appeal, the Court of Appeals must address these issues: (1) Is the Voting Provision ambiguous or unambiguous as to whether the responses of Series B shareholders were to be counted separately or collectively with the responses of the Series C shareholders to determine whether the two-thirds threshold was satisfied? (2) If the Voting Provision is ambiguous, does the extrinsic evidence submitted by the parties resolve the ambiguity as a matter of law, or does it raise material factual issues that must be resolved by a jury? and (3) If the Voting Provision is ambiguous, and the extrinsic evidence neither resolves the ambiguity nor presents jury questions that, when answered, would resolve the ambiguity, how should the language be construed against the drafter? The Court of Appeals agrees with the Circuit Court that the Voting Provision, when read as a whole, is ambiguous as to whether the approval of an amendment to the Series B Articles Supplementary is to be determined by the votes of the Series B shareholders alone or, instead, by the votes of Series B and Series C shareholders combined. Because the Voting Provision is ambiguous, the Court of Appeals may consider relevant admissible extrinsic evidence that illuminates the mutual intent of the parties. To assess the extrinsic evidence, as well as to apply the other principles of contract construction in the context of a corporate charter, the Court of Appeals must first identify the parties to the contract containing the provision in question--in this case, the charter and its amendment by the Articles Supplementary. Judge McDonald notes that the Series B Articles Supplementary are also material to Impac's assertion that the underwriters were parties to the amendment of Impac's charter, and there is no dispute as to the language of that document, either. In executing the Articles Supplementary for filing with the State Department of Assessments and Taxation ("SDAT"), Impac's president acknowledged it "to be the corporate act of the Corporation," not of any other entity, and the Articles Supplementary do not mention Bear Stearns or any other entity as a party to that document. The fact that the underwriting agreement referred to the Articles Supplementary might make the charter amendment part of the underwriting contract, but it does not make the underwriting agreement part of Impac's charter, the Judge opines. Neither document contains any ambiguity on the underwriters' role that would make material (or even admissible) the testimony of Impac's and Bear Stearns' attorneys who stated that they participated, and worked together, in negotiating or drafting the documents related to the Series B offering; to the contrary, the merger clause in the underwriting agreement expressly makes such negotiations irrelevant, Judge McDonald explains. Judge McDonald holds that the Circuit Court correctly held as a matter of law that Bear Stearns, while an "advisor" to Impac in the formulation of the offering documents, was not a party to the Series B Articles Supplementary and that the shareholders to whom those Articles granted voting rights were Impac's "counterparties" as to that provision. The record in this appeal contains only one document--the Series B prospectus supplement--that addresses the meaning of the Voting Provision and that was publicly available to investors at the time of the Series B public offering of stock, Judge McDonald notes. There, under the caption "Prospectus Summary," Impac described the voting rights of the Series B shareholders without any reference to the votes of the shareholders of any other series. The prospectus summary leads to only one interpretation of the Voting Provision: Impac could not amend its charter in such a way as to materially and adversely affect certain Series B rights and preferences unless Impac had obtained the votes of two-thirds of the outstanding shares of Series B, Judge McDonald holds. He adds that that meaning is also confirmed by the April 2004 board resolution which, as the Circuit Court noted, was the board's contemporaneous expression as to its intent as to the voting rights of purchasers of the soon-to-be-offered Series B stock, and that resolution did not provide that the votes of any shareholders other than those of Series B stock could be included in the tally of votes on charter amendments affecting Series B preferences. Judge McDonald points out that these two documents establish that the Impac board's expressed understanding of the Voting Provision at the time the company issued the Series B shares converged with the understanding that a reasonable investor would have gleaned from the prospectus summary at that same time. Because these documents resolve the ambiguity in the Voting Provision, the Court of Appeals need not resort to the canon of interpretation that permits a court to construe a contract against its drafter when extrinsic evidence fails to illuminate the parties' intent at the time of the execution of the contract. The Court of Appeals also agrees with the Circuit Court that the extrinsic evidence that it discounted--the opinion of a securities attorney on the meaning of the Voting Provision, the recollections of the Impac and Bear Stearns attorneys about their subjective, unexpressed intentions when they were working on the public offering, the charts prepared for this litigation that compare the Voting Provision to voting provisions applicable to shareholders of preferred stock of other entities, Impac's conduct of the election in 2009 as indicative of its interpretation--was not material to determining the reasonable expectations of a purchaser of the Series B shares. Finally, even if the Court of Appeals were to conclude that the relevant admissible extrinsic evidence did not resolve the ambiguity in the Voting Provision and resorted to construing the provision against the drafter, Court of Appeals says it would reach the same result. For the reasons explained, Impac--not the shareholders--would be considered to be the author of the Voting Provision and, so, were the Court of Appeals to apply that rule of interpretation, it would construe the provision against Impac. Conclusion For the reasons set forth in the Opinion, the Court of Appeals holds that: (1) The Voting Provision in the original Series B Articles Supplementary is ambiguous. (2) The extrinsic evidence relating to the Voting Provision that is relevant and admissible as to the understanding of that language by a reasonable shareholder resolves that ambiguity as a matter of law in favor of separate voting by Series B shareholders in the 2009 tender offer and consent solicitation; and (3) Even if one were to conclude that the Voting Provision remained ambiguous after consideration of extrinsic evidence, the relevant language would be construed against the drafter--i.e., Impac--with the same ultimate result. Accordingly, given that fewer than two-thirds of the Series B shareholders consented to the proposed 2009 amendments to the Series B Articles Supplementary, those amendments were not validly adopted. The Circuit Court's awards of declaratory and injunctive relief were appropriate. Judgment of Court of Special Appeals affirmed. Costs are to be paid by the Petitioner. A full-text copy of the Court's Opinion dated July 15, 2021, is available at https://tinyurl.com/b8m7uvkc from Leagle.com. INSTANT CHECKMATE: Wins Bid to Compel Arbitration in Fischer Suit ----------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to compel arbitration of Plaintiff Tiffany Adams' claim in the lawsuit styled ROBERT FISCHER, STEPHANIE LUKIS, and TIFFANY ADAMS, individually and on behalf of all others similarly situated, Plaintiffs v. INSTANT CHECKMATE LLC, Defendant, Case No. 19 C 4892 (N.D. Ill.). Robert Fischer and Stephanie Lukis brought this putative class action against Instant Checkmate LLC in the Circuit Court of Cook County, alleging violations of the Illinois Right of Publicity Act ("IRPA"). Instant Checkmate removed the suit under the Class Action Fairness Act ("CAFA"). Last year, the Court denied Instant Checkmate's motion to dismiss, and later denied its motions for reconsideration, leave to appeal, and summary judgment. The Plaintiffs then amended their complaint to add Tiffany Adams as a named plaintiff. Instant Checkmate moves under the Federal Arbitration Act ("FAA") to compel arbitration of Adams's claim. Background On a motion to compel arbitration, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his or her favor. Ms. Adams joined this suit on Dec. 3, 2020. At that time, discovery as to Lukis's and Fischer's claims was ongoing, and in a joint status report filed days later, the parties agreed that by providing discovery to the original Plaintiffs, Instant Checkmate does not waive any rights to raise issues of arbitrability with respect to the newly added Plaintiff. Instant Checkmate answered the amended complaint on Dec. 17, asserting arbitrability as a defense. On Jan. 13, 2021, Instant Checkmate sent Adams an informal discovery request for "all email addresses" she used. She responded days later with one email address. On Jan. 26, Andrew Johnson, a senior software engineer at Instant Checkmate's parent company, searched Instant Checkmate's user database for that address. His search revealed that, on Aug. 21, 2013, Adams had entered her name and email address into a registration form on the Instant Checkmate website. Ms. Adams does not seriously contest this fact. Granted, Adams avers that she does not recall going to the website or completing the form in 2013. But in opposing the motion to compel, Adams does not contend that Instant Checkmate's records reflecting that she did complete the form are inaccurate or unreliable. There, accordingly, is no dispute that Adams entered her name and email on a registration form on the website. Mr. Johnson's declaration provides "a screenshot of a webpage materially identical to the page Adams would have seen on August 21, 2013." Ms. Adams argues that this screenshot is inadmissible because Instant Checkmate does not show that Johnson has the requisite personal knowledge to authenticate it. Mr. Johnson's first declaration states that he started work as a software engineer with Instant Checkmate's parent company in May 2015, and provides little foundation for his knowledge of how the website appeared in August 2013. After Adams objected to the screenshot's admission, Instant Checkmate submitted another declaration from Johnson, in which he avers: "In my role as a Software Engineer, I regularly review and maintain records associated with users' historic and current use of the Instant Checkmate website. I also regularly review and maintain records associated with the historic and current design of the Instant Checkmate website." He further avers that "Instant Checkmate has limited historical screenshots of the website." District Judge Gary Feinerman holds that the screenshot is sufficiently authenticated under Rule 901 of the Federal Rules of Evidence. He holds, among other things, that its "appearance" and "contents" tend to suggest that it is genuine under Rule 901(b)(4), as Instant Checkmate sells its background reports through a subscription service. Moreover, Johnson's second declaration adequately establishes his personal knowledge of the screenshot's authenticity. Admissible evidence, therefore, shows that, when Adams entered her name and email on a registration form on Instant Checkmate's website in August 2013, the webpage stated that clicking "Continue" constituted acceptance of Instant Checkmate's Terms of Use, Judge Feinerman holds. Returning to the course of the litigation, on Feb. 19, 2021, the parties filed a status report in which Instant Checkmate stated that its investigation to determine whether it has potential arbitration defenses against Adams is ongoing. That day, Instant Checkmate served written discovery requests on Adams, which it described as "limited solely to information necessary to evaluate Instant Checkmate's potential arbitration rights with respect to Adams." On March 29, Adams responded with, among other things, a web activity report showing that she visited the Instant Checkmate website on April 24, 2017, Dec. 21, 2017, and July 11, 2019. Instant Checkmate moved to compel arbitration three weeks later. Waiver Ms. Adams first argues that Instant Checkmate, through its delay in filing the present motion, waived its right to compel arbitration. Judge Feinerman notes that Instant Checkmate has not acted inconsistently with its right to arbitrate Adams's claim. Adams joined the litigation via an amended complaint on Dec. 3, 2020. Since then, Instant Checkmate's sole focus as to Adams has been to redirect her claim to arbitration. Ms. Adams argues that Instant Checkmate at that time should have moved to compel arbitration but that it instead waited until April 16, after the close of fact discovery, to do so. During that time frame, however, Instant Checkmate continued its exclusive focus on arbitrability, Judge Feinerman notes. In a joint status report on Feb. 19, 2021, Instant Checkmate stated that its investigation as to arbitration was ongoing. That day, it served formal discovery requests on Adams, each related to arbitration rather than the merits of her IRPA claim. Judge Feinerman opines that none of Instant Checkmate's actions between December 2020, when the amended complaint was filed, and mid-April 2021, when it moved to compel arbitration, manifested an intention to resolve the dispute through the processes of this federal court. To the contrary, Instant Checkmate did all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration. Hence, there was no waiver. Judge Feinerman explains that this case stands in sharp contrast to Lukis v. Whitepages Inc., 2021 WL 1600194 (N.D. Ill. Apr. 23, 2021), where the court held that an IRPA defendant in a similar case had waived its right to arbitrate the claim of one of the plaintiffs there, Stephanie Lukis. In the case, as to Adams, Instant Checkmate focused single-mindedly on the arbitration issue from the moment that she joined the litigation. In sum, Judge Feinerman points out, when it came to preserving its right to seek arbitration, Instant Checkmate did everything right as to Adams's claim, while Whitepages substantially and unjustifiably delayed its motion to compel arbitration of Lukis's claim. Merits Turning to the merits of Instant Checkmate's motion, courts evaluate agreements to arbitrate under the same standards as any other contract, which include "all general principles of state law. The parties agree that Illinois law governs the issue of contract formation. Although Adams apparently visited the Instant Checkmate website several times in recent years, Instant Checkmate moves to compel arbitration based only on her completing a registration on the website in 2013. Adams retorts that no contract formed between her and Instant Checkmate because the 2013 webpage did not reasonably communicate that users, who registered were assenting to the Terms of Use. Whether a website gives adequate notice of its terms of use is "a fact-intensive inquiry" turning the specifics of the website at issue, Judge Feinerman opines. In the end, decisions addressing differently constructed websites do not answer the dispositive question: whether the circumstances support the assumption that the user received reasonable notice of the terms. Here, the answer is yes, Judge Feinerman states. The disclosure of the Terms of Use was certainly not the most prominent feature of Instant Checkmate's registration webpage, but the page provided reasonable notice, unambiguously referring to the Terms in legible text and providing easy access for users who cared to read further, Judge Feinerman explains. As in the pre-digital world, internet users "are free to sign legal documents without reading them, but the documents are binding whether read or not," Judge Feinerman points out, citing Novitsky v. Am. Consulting Eng'rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999). When Adams entered her information on the registration form and clicked "Continue," she assented to the Terms. The Court holds only that Adams assented to the arbitration agreement found in the 2013 version of the Terms of Use; it does not hold that her claim falls within the agreement's scope, as the agreement delegates that arbitrability issue to the arbitrator. Nor does the court decide whether, as Instant Checkmate argues Adams's visits to its website in 2017 and 2019 establish her assent to the more recent versions of the Terms of Use. The resolution of that question could affect whether Adams's claim is subject to arbitration, as the more recent versions of the Terms narrow the class of disputes subject to arbitration. Conclusion Instant Checkmate's motion to compel arbitration is granted. If Adams wishes to pursue her claim against Instant Checkmate, she must do so in arbitration, where the arbitrator will determine whether her claim is arbitrable and, if so, will resolve it on the merits. This suit is stayed as to Adams's claim pending resolution of the arbitration. A full-text copy of the Court's Memorandum Opinion and Order dated July 19, 2021, is available at https://tinyurl.com/377uxfhu from Leagle.com. INTERNATIONAL PAPER: Court Grants Slocum's Bid to Strike Experts ---------------------------------------------------------------- The U.S. District Court for the Eastern District of Louisiana grants the Plaintiffs' Motion to Strike Experts from the Phase I Negligence Trial in the lawsuits entitled SHIRLEY SLOCUM, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL.; DERRICK SANDERS, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL.; and BRENT JARRELL, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL., SECTION "L" (1), Case Nos. 16-12563, No. 16-12567., 16-13793 (E.D. La.). This set of cases arises out of damages allegedly sustained by the Plaintiffs due to the discharge of "black liquor" at the Bogalusa Paper Mill on June 10, 2015. The Plaintiffs assert claims against the Defendant, International Paper Company ("IP"). The Plaintiffs' theories of liability sound in negligence, strict liability, and nuisance. Black liquor is a by-product of the paper making process. Black liquor is typically recycled in evaporator tanks for repeated use in the pulping process. On June 10, 2015, the sight glass on an evaporator tank containing black liquor ruptured at the Bogalusa Paper Mill, which resulted in a stream of black liquor erupting several feet into the air and dispersing into the atmosphere. The next day, the Defendants advised the media that there was a "slight leak" in a process unit that led to the dispersal of diluted black liquor, but that the Defendants were "confident that there is no risk to human health or the environment." The Plaintiffs disagree. They contend that the dispersal of black liquor caused personal injury, property damage and/or emotional distress, and argue the Defendants are liable for the Plaintiffs' damages. For instance, the Welch Plaintiffs claim the dispersal caused a black mist to descend on their house, and that the mist stuck to the exposed skin of themselves and their children. For a few days after, the Welches experienced itchy, burning, watery eyes, and headaches with throat and upper respiratory irritation. The Welches concede that their physical symptoms cleared in a short period of time, but argue they continue to suffer emotional distress and fear about a reoccurrence of the event. Other Plaintiffs claim similar damages. On May 21, 2019, the Court certified this matter as an issue-based class action under Rule 23(c)(4) of the Federal Rules of Civil Procedure. The class consisted of "all persons or entities who were physically present or owned property within Bogalusa, Louisiana, Parish of Washington on June 10, 2015, and who sustained injuries or damages as a result of the discharge of 'black liquor' at the Bogalusa Paper Mill owned by the International Paper Company." The class was broadly described to allow the parties an opportunity to prepare a public a notice to determine the extent and nature of the potential claims. After some initial discovery, a two-day hearing, and a site visitation to Bogalusa, Louisiana, with the attorneys for the involved parties, the Court drew more precise boundaries for the class: * Northern Boundary: Derbigny Street to Austin Street, north on Austin Street to Bayer Street, east on Bayer Street; * Eastern Boundary: Columbia Street to Saba Street, east on Saba Street to Florence Avenue, south on Florence Avenue to North Avenue, east on North Ave to Ruby Road, south on Ruby Road; * Southern Boundary: St Lewis Street to New Orleans Street to West 12th Street; and * Western Boundary: Avenue F to Willis Avenue to Madison Street. These boundaries included both potential personal injury claims and potential property damage claims. The Court also determined that 773 gallons of black liquor were released during the event, which lasted from 6:40 p.m. to 7:18 p.m. No appeal was taken from this class certification ruling pursuant to Rule 23(f). The Court next bifurcated the case into liability and damages phases. The liability phase, with the consent of the parties, was to be handled by the Court without a jury, and the damages phase, if necessary, was to be handled by multiple juries for the various cases. The Phase I Liability Trial The sole issue to be resolved at the liability phase is whether the Incident on June 10, 2015, at the Bogalusa Paper Mill causing "black liquor" to be released from the third effect evaporator tank was due to the negligence of the Defendant, International Paper Company. Specifically, the relevant common liability issues include: whether the Defendants owed the Plaintiffs a general duty, whether the Defendants' conduct failed to conform to the general standard of care, and whether the scope of the Defendants' duty includes preventing the type of harm the Plaintiffs allegedly suffered. District Judge Eldon E. Fallon notes that these issues have not changed since the Class Certification Order on May 19, 2019. What has changed, however, is the Plaintiffs' requested relief. The Plaintiffs have withdrawn their requests for declaratory or injunctive relief. As a result, certain factual determinations no longer need to be decided. The Court has instructed the parties to begin to group the cases with like claims into subclasses to aid in the efficient resolution of these issues. Accordingly, the Court finds the Defendant's claim that the current trial plan will "force the parties--and the Court--to compound the waste by litigating common issues repeatedly in every plaintiff's case" to be without merit. Present Motion The Defendants have listed six experts, which they intent to call during the first phase of this litigation, scheduled to begin on Aug. 30, 2021. The Plaintiffs now move to strike Defendant IP's six experts, arguing that they exclusively opine on individual plaintiff issues, general causation, and damages. The Plaintiffs argue that the export reports submitted by IP do not pertain to negligence, despite the Court's instructions regarding the nature and scope of the Phase I trial, and therefore must be excluded from the bench trial as irrelevant under Federal Rules of Evidence 401-403. IP opposes the motion, arguing that it designated these experts in response to the Plaintiffs' expert designations and in accordance with the Class Certification Order. IP further argues that the resolution of all common issues must occur in Phase I to avoid waste. IP urges the Court to resolve factual issues regarding the airborne concentrations and surface depositions in specific geographical areas, the constituents of the black liquor, and whether it is harmful to the Plaintiffs or their property in Phase I. Discussion The present motion seeks the exclusion of the testimony and expert reports of IP's six experts on the basis that they are al both irrelevant and prejudicial pursuant to Federal Rules of Evidence 401, 402, and 403. The anticipated testimony of IP's experts is as follows: (1) Rick Crowsey, Ph.D., a forensic geographer, would testify as to the locations of individual plaintiffs on the day of the incident, in addition to pinpointing air and deposition concentrations of Black Liquor; (2) Douglas Austin Swift, M.D., M.S.P.H., would provide an occupational and environmental medicine perspective regarding potential effects from an exposure to Black Liquor vapor; (3) Gale Hoffnagle, C.C.M, Q.E.P., would analyze the path, air concentrations, and deposition of the Black Liquor released from the Bogalusa Mill; (4) Glenn Milner, Ph.D., would opine on the concentration levels of Black Liquor at which adverse health effects may occur following a short-term exposure; (5) Mark Rockel, Ph.D., an environmental economist, would testify regarding the feasibility of Plaintiffs' damage claims pertaining to claims for trees, plants, paint and other similarly related damages; and (6) Timothy Myers, Ph.D., P.E., would review the Plaintiffs' expert calculations of particular dose or exposure to the Plaintiffs within the class boundary. The Court, having carefully examined Defendants' expert reports, concludes that these experts must be deferred until Phase II of the litigation. Judge Fallon finds that IP has failed to demonstrate how its proposed experts' testimony is relevant as to whether the June 10, 2015 Incident was due to the negligence of the Defendant, and instead, seeks to broaden the nature and the scope of the Phase I trial--a request which the Court has previously rejected. IP's proposed expert testimony solely pertains to issues of general causation, damages, and exposures of individual plaintiffs, and accordingly, the Court finds that it would not assist the trier of fact to understand the determinative facts at issue during the Phase I trial under Federal Rule of Evidence 702 and Daubert. Conclusion For these reasons, the Plaintiffs' Motion to Strike is granted. The Defendant's experts are to be deferred until Phase II of this litigation. The Plaintiffs' Motion for Partial Summary Judgment that Black Liquor can be Corrosive to Metals; Motion for Partial Summary Judgment that Black Liquor can Cause Staining to Property; Motion for Partial Summary Judgment that Black Liquor can Cause Adverse Health Effects; Motion for Partial Summary Judgment that Black Liquor can Cause Damage to Vegetation and Defendant's Motion for Partial Summary Judgment Requesting Dismissal of Claims for Damage to Vegetation are dismissed without prejudice to be reurged after Phase I. The motions for leave to file documents related to R. Docs. 355 and 361 under seal is dismissed as moot. A full-text copy of the Court's Order and Reasons dated July 15, 2021, is available at https://tinyurl.com/bu5s9433 from Leagle.com. ITG INC: Mauthe Seeks Initial Approval of Settlement Deal --------------------------------------------------------- In the class action lawsuit captioned as ROBERT W. MAUTHE, M.D., P.C., individually and as the representatives of a class of similarly situated persons, v. ITG, INC.; ITG INVESTMENT RESEARCH, INC., and M. SCIENCE LLC, Case No. 5:18-cv-01968-CFK (E.D), the Plaintiff asks the Court to enter an order 1. preliminarily approving the parties' proposed class action Settlement Agreement; 2. approving the form of Class Notice and its dissemination to the Settlement Class by both U.S. Mail and by facsimile; and 3. setting dates for opt-outs, objections, and a fairness hearing. ITG provides automated equity trading and transaction research services. A copy of the Plaintiff's motion dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3lbbRfP at no extra charge.[CC] The Plaintiff is represented by: Phillip A. Bock, Esq. Jonathan B. Piper, Esq. Molly E. Stemper, Esq. Bock Hatch & Oppenheim, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@classlawyers.com - and - Richard E. Shenkan, Esq. Shenkan Injury Lawyers, LLC P.O. Box 7255 New Castle, PA 16107 Telephone: (248) 562-1320 Facsimile: (888) 769-1774 E-mail: rshenkan@shenkanlaw.com - and - Andrew J. Riley, Esq. SAXTON & STUMP 100 Deerfield Lane, Suite 240 Malvern PA 19355 Telephone: (484) 328-8514 E-mail: ajr@saxtonstump.com J.B. HUNT: Final OK of Class Settlement Deal Sought in Wilson ------------------------------------------------------------- In the class action lawsuit captioned as KAREEM WILSON, on behalf of himself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, v. J.B. HUNT LOGISTICS, INC., an Arkansas corporation; J.B. HUNT TRANSPORT, INC., a business entity of unknown form; and DOES 1 through 50, inclusive, Case No. 2:18-cv-03487-SVW-AFM (C.D. Cal.), the Plaintiff asks the Court to enter an order: 1. finally approving the Joint Stipulation and Settlement Agreement; 2. confirming the certification of the Class solely for settlement purposes pursuant to Federal Rule of Civil Procedure 23 ("Rule 23"); 3. confirming the appointment of David Spivak of The Spivak Law Firm and Walter Haines of United Employees Law Group as Class Counsel; 4. confirming the appointment of Plaintiff as Class Representative; and 5. granting final approval to an allocation of $4,000 for claims for civil penalties under the Labor Code Private Attorneys General act of 2004, of which $3,000 or 75% will be paid to the Labor and Workforce Development agency ("LWDA") and the remaining 25% or $1,000 of which will go to PAGA Releasees; and 6. directing that [Proposed] Final Approval Order and Final Judgment be entered as called for under the Settlement. "Class Members" are all persons employed by Defendants in California as hourly, non-driver Installation Specialists ("Installers"), at any time from March 2, 2014 through January 3, 2020. A copy of the Plaintiff's motion to certify class dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3zOLmAO at no extra charge.[CC] The Plaintiff is represented by: David G. Spivak, Esq. Caroline Cahmassian, Esq. THE SPIVAK LAW FIRM 16530 Ventura Bl., Ste. 203 Encino, CA 91436 Telephone (213) 725-9094 Facsimile (213) 634-2485 E-mail: david@spivaklaw.com caroline@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 E-mail: walter@uelglaw.com JAGUAR LAND: Block Seeks to Certify Class Action ------------------------------------------------ In the class action lawsuit captioned as AMY BLOCK and VICTORYA MANAKIN on behalf of themselves and the Putative Class, v. JAGUAR LAND ROVER NORTH AMERICA, LLC, Case No. 2:15-cv-05957-SRC-CLW (D.N.J.), the Plaintiff asks the Court to enter an order: 1. granting class certification pursuant to Federal Rule of Civil Procedure 23; and 2. appointing Nagel Rice, LLP as Class Counsel. Jaguar Land manufactures luxury sedans, sports cars and SUVs. A copy of the Plaintiffs' motion dated July 23, 2021 is available from PacerMonitor.com at https://bit.ly/3C01t0v at no extra charge.[CC] The Plaintiffs are represented by: Greg M. Kohn, Esq. Bruce H. Nagel, Esq. NAGEL RICE, LLP gkohn@nagelrice.com bnagel@nagelrice.com 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 618-0400 Facsimile (973) 618-9194 The Defendant is represented by: Stephen A. Loney, Jr., Esq. Jessica K. Jacobs, Esq. HOGAN LOVELLS US LLP 1735 Market Street, Floor 23 Philadelphia, PA 19103 Michael L. Kidney, Esq. HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 JET AUTOMOTIVE: Conditional Cert. of Rivera Class Action Nixed -------------------------------------------------------------- In the class action lawsuit captioned as KENNIS RIVERA, et al, v. JET AUTOMOTIVE SERVICES, LLC, Case No. 1:20-cv-01037-JKB (D. Md.), the Hon. Judge James K. Bredar entered an order denying the Plaintiffs' motion for conditional certification of a collective action. The Court said, "At a minimum, the Defendants point out that identifying the theory under which each additional plaintiff would dispute Defendants' pay logs, and the proofs he or she would bring in support of that theory, would require additional discovery. The Court has already declined to extend the significant discovery period in this case because Plaintiffs have failed to show good cause for doing so. On the current record, Plaintiffs have failed to show that similarly situated plaintiffs in fact exist, much less that they could be manageably added to this case." The Plaintiffs Kennis Rivera and Ada Mejia have sued the Defendants Jet Automotive and Anthony Korolev, alleging that the Defendants have failed to pay them required overtime pay in violation of the Fair Labor Standards Act (FLSA) and state law. The Plaintiffs also assert that there are at least twenty other Jet employees who are similarly situated to Plaintiffs and have sought to convert this case into a collective action under 29 U.S.C. section 216(b). A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3BWbv2v at no extra charge.[CC] JOHN MULVANEY: Deadline for Class Cert Bid Filing Set for Nov. 8 ---------------------------------------------------------------- In the class action lawsuit captioned as JONES et al v. MULVANEY, et al., Case No. 1:18-cv-02132 (D.D.C.), the Hon. Judge Beryl A. Howell entered an order resetting deadlines as follows: -- Expert rebuttal reports due by: Sept. 17, 2021 -- Notice of class certification Sept. 24, 2021 expert depositions due by: -- Expert depositions to be Oct. 15, 2021 completed and a status report filed by: -- Motion for class certification Due by: Nov. 8, 2021 Opposition due by: Dec. 20, 2021 Reply due by: Jan. 18, 2022 The nature of suit states Civil Rights -- Employment.[CC] JOHNSON & JOHNSON: McLaughlin Balks at Misbranded Sun Care Products ------------------------------------------------------------------- Timothy McLaughlin v. Johnson & Johnson Consumer, Inc., Johnson & Johnson, and Costco Wholesale Corporation, Case No. 3:21-cv-13710-ZNQ-TJB (D.N.J., July 15, 2021) arises from adulterated, misbranded, and unapproved sunscreen and after sun care products that were designed, manufactured, marketed, distributed, packaged, and/or sold by the Defendants in the United States. The specific sunscreen products currently include all aerosol sunscreen products manufactured by Johnson & Johnson and its subsidiaries, Neutrogena and Aveeno, which were recalled on July 14, 2021. These Sunscreen Products are not merchantable, and are not of the quality represented by Defendants named herein. Allegedly, the Defendants' Sunscreen and After-Sun Care Products contain dangerously high levels of benzene, a hazardous genotoxic class I human carcinogen. These dangerously high levels of benzene are not disclosed by the Defendants, and were only discovered very recently when a third-party pharmacy tested Defendants' Sunscreen and After Sun Care Products. Sunscreen and After-Sun Care Products in the United States are considered drugs, and are regulated by the Unites States Food and Drug Administration ("FDA"). As such, these products, including Defendants' Sunscreen and After-Sun Care Products, must comply with the Food, Drug and Cosmetic Act, the FDA regulations and guidance promulgated thereunder, as well as analogous state statutory and common law schemes pertaining to the safety, quality, and sale of OTC drugs. Plaintiff McLaughlin is a resident of Fulton County, Georgia. During the class period, Plaintiff paid money for one or more of Defendants' Sunscreen and After-Sun Care Products. Johnson & Johnson has been engaged in the manufacture, sale, marketing, and/or distribution of adulterated and/or misbranded Sunscreen Products in the United States, including but not limited to Georgia and New Jersey.[BN] The Plaintiff is represented by: Marlene J. Goldenberg, Esq. Noah C. Lauricella, Esq. Goldenberg Law, PLLC 800 LaSalle Avenue, Ste. 2150 Minneapolis, MN 55402 Telephone: (612) 436-5028 E-mail: mjgoldenberg@goldenberglaw.com nlauricella@goldenberglaw.com - and - David J. Stanoch, Esq. Allan Kanner, Esq. Conlee S. Whiteley, Esq. Layne Hilton, Esq. KANNER & WHITELEY , LLC 701 Camp Street New Orleans, LA 70130 Telephone: (504)-524-5777 E-mail: d.stanoch@kanner-law.com a.kanner@kanner-law.com c.whiteley@kanner-law.com l.hilton@kanner-law.com KANSAS: Kanatzar, et al. File Writ of Habeas Corpus ---------------------------------------------------- A petition for writ of habeas corpus has been filed in the case styled as CALEB Kanatzar, William Tyler, Thomas Legrand, David Minish, Terry Jackson, Michael Neloms, on their own, and on behalf of a class of similarly situated persons, Petitioners v. Jeff Zmuda, in his official capacity as the Secretary of Corrections of the State of Kansas, Respondent, Case No. 124161, in the Kansas Supreme Court and Court of Appeals on July 16, 2021. The Petitioners appear pro se.[BN] KEYSTONE RV: Wins Summary Judgment Bid vs Cole ---------------------------------------------- In the class action lawsuit captioned as JUDITH COLE, et al., v. KEYSTONE RV COMPANY, Case No. 3:18-cv-05182-TSZ (W.D. Wash.), the Hon. Judge Thomas S. Zilly entered an order that: 1. Keystone's Motion for Summary Judgment is granted and Plaintiffs' CPA claim is dismissed with prejudice; 2. The pending motion to Exclude Plaintiffs' Expert Witness is stricken as moot; and 3. The Clerk is directed to enter judgment consistent with this Order and to 10 send a copy of the Judgment and this Order to all counsel of record. The Court said, "The Plaintiffs assert that Keystone violated this provision by not disclosing: (1) any of the serious health hazards which can result from the ordinary use of an RV, (2) any restrictions on the prolonged occupancy of an RV, and (3) any of the warranty exclusions for living in an RV. Resp. But Plaintiffs make only conclusory statements that Keystone violated the ADPA, which is insufficient to survive summary judgment. Even so, the Court has already determined that Keystone's representations on mold, prolonged occupancy, formaldehyde, and its limited warranty were not deceptive. Again, the Plaintiffs' failure to meet this first element is fatal to their claim and the Court need not address the other elements." Keystone RV manufactures recreational vehicles in North America. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3yg7bcm at no extra charge.[CC] KNIGHT TRANSPORTATION: Opposition to Class Cert. Bid Due Sept. 7 ---------------------------------------------------------------- In the class action lawsuit captioned as Patrick LaCross, et al., v. Knight Transportation Incorporated, et al., Case No. 2:15-cv-00990-JJT (D. Ariz.), the Hon. Judge John J. Tuchi entered an order: 1. granting the Amended Joint Stipulation to Continue Defendants' Deadline to File Opposition to Plaintiffs' Motion for Class Certification; 2. extending the Defendants' deadline to file their Opposition to Plaintiffs' Motion for Class Certification to September 7, 2021; 3. granting Plaintiffs' reply brief in support of their motion due October 4, 2021. Knight Transportation is part of North America's largest truckload fleet, providing multiple truckload services. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/376Ejr5 at no extra charge.[CC] KRAFT HEINZ CO: Tarantino Sues Over Toxic Substance in Products --------------------------------------------------------------- Kelly Tarantino, individually and on behalf of all others similarly situated, Plaintiff v. The Kraft Heinz Company a/k/a Kraft Heinz Foods Company, Defendant, Case No. 21-cv-04013 (E.D. N.Y., July 15, 2021), seeks monetary and statutory damages, treble damages for knowing and willful violations of New York General Business Law, punitive damages, costs and expenses incurred in this action, including reasonable allowance of fees for attorneys and experts and such other and further relief for breach of warranty and violations of various states' warranty laws and for violation of the Magnuson-Moss Warranty Act. Kraft Heinz Foods Company is into the marketing and sales of "Kraft Mac & Cheese" products throughout the State of New York and throughout the country. Tarantino claims that Kraft failed to disclose on their products' packaging and labels that their products contain "ortho-phthalates," that are dangerous and harmful chemicals when consumed, especially by pregnant women and children. [BN] Plaintiffs are represented by: Jason P. Sultzer, Esq. Joseph Lipari, Esq. Daniel Markowitz, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Tel: (845) 483-7100 Fax: (888) 749-7747 Email: sultzerj@thesultzerlawgroup.com liparij@thesultzerlawgroup.com markowitzd@thesultzerlawgroup.com - and - David C. Magagna Jr., Esq. Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Tel: (215) 592-1500 Email: dmagagna@lfsblaw.com cschaffer@lfsblaw.com LAS VEGAS SANDS: Briefings on Bid to Nix Trust Suit Due August 5 ---------------------------------------------------------------- Las Vegas Sands Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 23, 2021, for the quarterly period ended June 30, 2021, that all briefings on the motion to dismiss is scheduled to be completed by August 5, 2021. On October 22, 2020, The Daniels Family 2001 Revocable Trust, a putative purchaser of the Company's shares, filed a purported class action complaint in the U.S. District Court against the company (LVSC), Sheldon G. Adelson and Patrick Dumont. The complaint asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and alleges that LVSC made materially false or misleading statements, or failed to disclose material facts, from February 27, 2016 through September 15, 2020, with respect to its operations at the Marina Bay Sands, its compliance with Singapore laws and regulations, and its disclosure controls and procedures. On January 5, 2021, the U.S. District Court entered an order appointing Carl S. Ciaccio and Donald M. DeSalvo as lead plaintiffs. On March 8, 2021, Lead Plaintiffs filed a purported class action amended complaint against LVSC, Sheldon G. Adelson, Patrick Dumont, and Robert G. Goldstein, alleging similar violations of Sections 10(b) and 20(a) of the Exchange Act over the same time period of February 27, 2016 through September 15, 2020. On March 22, 2021, the U.S. District Court granted Lead Plaintiffs' motion to substitute Dr. Miriam Adelson, in her capacity as the Special Administrator for the estate of Sheldon G. Adelson, for Sheldon G. Adelson as a defendant in this action. On May 7, 2021, the defendants filed a motion to dismiss the amended complaint. Lead Plantiffs filed an opposition to the motion to dismiss on July 6, 2021. All briefings on the motion to dismiss is scheduled to be completed by August 5, 2021. Las Vegas Sands said, "This action is in a preliminary stage and management has determined that based on proceedings to date, it is currently unable to determine the probability of the outcome of this matter or the range of reasonably possible loss, if any. The Company intends to defend this matter vigorously." Las Vegas Sands Corporation is an American casino and resort company based in Paradise, Nevada, United States. Its resorts feature accommodations, gaming and entertainment, convention and exhibition facilities, restaurants and clubs, as well as an art and science museum in Singapore. The company is based in Las Vegas, Nevada. LEVY PREMIUM: Peskett Seeks Approval of Class Certification Bid --------------------------------------------------------------- In the class action lawsuit captioned as SHARON PESKETT, individually and on behalf of other individuals similarly situated, v. LEVY PREMIUM FOODSERVICE LIMITED PARTNERSHIP an Illinois limited partnership, COMPASS GROUP USA, INC, a Delaware corporation, Case No. 2:20-cv-05694-SVW-PVC (Filed June 25, 2020, C.D. Cal.), the Plaintiff asks the Court to enter an order granting motion for class certification. This case challenges the Defendants' systematic under-compensation of their employees through unlawful policies and practices uniformly applied in California. The basis of Plaintiff's Complaint is that Defendants fail to pay their employees for time spent undergoing security inspections and check-in procedures for Defendants' benefit. The Defendants employ the Class Members as premium club attendants, food runners, bussers, dishwashers, cashiers, concession stand workers, cooks, prep cooks, line cooks, bartenders, barbacks and baristas, among other positions, at major entertainment and sports venues in California. Shifts for these workers are long, the Plaintiff contends. The Defendant Levy Premium Foodservice is a restaurant and hospitality company based in Chicago specializing in providing food and beverages to major entertainment and sports venues in California and nationwide. Among other venues and locations in California, the Defendants operate at the Staples Center in Los Angeles, the Oakland Arena, Dodger Stadium in Los Angeles, the Rose Bowl in Pasadena, and Levi's Stadium. The Defendant Levy is a wholly-owned subsidiary of Defendant Compass Group USA. Following Compass' acquisition of Levy, annual revenues increased tenfold -- from $200 million to $2 billion. Plaintiff Peskett worked for Defendants a "Runner" at Dodger Stadium from 2018 to 2019 and as a "Premium Suite Attendant" at the Rose Bowl in Pasadena until 2020. A copy of the Plaintiff's motion to certify class dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3BSqvhR at no extra charge.[CC] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Lirit A. King, Esq. BRADLEY/GROMBACHER, LLP 31365 Oak Crest Drive, Suite 240 Westlake Village, CA 91361 Telephone: (805) 270-7100 Facsimile: (805) 270-7589 E-Mail: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com lking@bradleygrombacher.com LIBERTY MUTUAL: Filing of Class Status Bid Due Dec. 8 ----------------------------------------------------- In the class action lawsuit captioned as SHARON MIDDLETON, et al., v. LIBERTY MUTUAL PERSONAL INSURANCE COMPANY, et al., Case No. 1:20-cv-00668-DRC (S.D. Ohio), the Hon. Judge Douglas R. Cole entered a second amended calendar order as follows: -- Motions to amend the pleadings November 3, 2021 and/or add additional parties: -- Plaintiffs' class certification November 4, 2021 expert report(s) and designation(s): -- Plaintiffs' Motion for Class December 8, 2021 Certification: -- Defendants' class certification December 29, 2021 expert report(s) and designation(s): -- Disclosure of lay witnesses: January 5, 2022 -- Defendants' Opposition to January 20, 2022 Motion for Class Certification: -- Plaintiffs' Reply to Defendants' February 7, 2022 Opposition to Motion for Class Certification: A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3rFZABf at no extra charge.[CC] LIFE LINE: Laird FLSA Suit Seeks to Certify Collective Action ------------------------------------------------------------- In the class action lawsuit captioned as LANETTE LAIRD, et al., v. LIFE LINE SCREENING OF AMERICA LTD., Case No. 5:21-cv-01244-SL (N.D. Ohio), the Plaintiffs Lanette Laird and Jessica Elliott, on behalf of themselves and on behalf of those similarly situated, ask the Court to enter an order: 1. conditionally certifying their proposed collective Fair Labor Standards Act (FLSA) class defined as: "All current and former Health Service Coordinators employed by Defendant from July 19, 2018, (three years prior for the date of the filing of this action) through the present who were paid on an hourly basis, and who did not receive overtime payment at a rate of one and one-half times their regular rate of pay for all hours worked in a workweek in excess of 40 or who were required to work “off the clock;" 2. implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claim is sent (via U.S. Mail and e-mail) to Plaintiffs' proposed class as set forth above; and 3. requiring Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs who worked for the Defendant. This is an action for unpaid overtime wages brought pursuant to the FLSA and filed as a collective action. The Named Plaintiffs, Lanette Laird and Jessica Elliott, filed this action on June 24, 2021, alleging that Defendant Life Line Screening of America Ltd. failed to pay them and similarly situated individuals for all wages earned, including overtime compensation at the rate of one and one half times their respective regular rates for the hours worked in excess of 40 hours in a workweek. The Defendant Life Line Screening of America Ltd. is a preventative health screening provider with locations throughout the United States, including Canton, Ohio and Cleveland, Ohio. The Defendant employed 25 or more Health Service Coordinators at any given time who scheduled and coordinated health screening events. A copy of the Plaintiffs' motion to certify class dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3yb9qO7 at no extra charge.[CC] The Plaintiffs are represented by: Rachel Sabo Friedmann, Esq. Peter G. Friedmann, Esq. Jamie R. Bailey, Esq. THE FRIEDMANN FIRM LLC 1457 S. High Street Columbus, OH 43207 Telephone: (614) 610-9756 Facsimile: (614) 737-9812 E-mail: Rachel@TFFLegal.com Pete@TFFLegal.com Jamie@TheFriedmannFirm.com LILLY-JO LLC: Roberts Sues to Recover Withheld Tips --------------------------------------------------- Sarah Roberts, individually and on behalf of all others similarly situated, v. Lilly-Jo, LLC, and Billy Yuzar, Defendants, Case No. 21-cv-03178, (W.D. Mo., July 15, 2021) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest and costs, including reasonable attorneys' fees for failure to pay minimum wages as required by the Fair Labor Standards Act and the wage laws of the Missouri Revised Statutes. Defendants own and operate "Kiko Japanese Steakhouse and Sushi Lounge" in West Plains where Roberts worked as an hourly-paid sushi chef from October of 2020 until June of 2021. Roberts claims that Defendants regularly withheld her tips. [BN] Plaintiff is represented by: Courtney Harness, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy., Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: harness@sanfordlawfirm.com LOEWS HOLLYWOOD: California Sup. Ct. Flips Judgment in Ferra Suit ----------------------------------------------------------------- In the lawsuit captioned JESSICA FERRA, et al., Plaintiffs and Appellants v. LOEWS HOLLYWOOD HOTEL, LLC, Defendant and Respondent, Case No. S259172 (Cal.), the Supreme Court of California reverses the judgment of the Court of Appeal and remands for further proceedings. In the underlying wage and hour class action lawsuit, the trial court granted summary adjudication for Loews. The Court of Appeal affirmed. Justice Goodwin Hon Liu authored the Opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuellar, Kruger, Groban, and Jenkins concurred. Under California law, employers must provide employees with overtime pay when employees work more than a certain amount of time, Labor Code, Section 510, subd. (a) (section 510(a)). To calculate overtime pay, section 510(a) requires an employer to compensate an employee by a multiple of the employee's "regular rate of pay." California law also provides for meal, rest, and recovery periods. If an employer does not provide an employee with a compliant meal, rest, or recovery period, section 226.7, subdivision (c) (section 226.7(c)) requires the employer to "pay the employee one additional hour of pay at the employee's regular rate of compensation." The question here is whether the Legislature intended "regular rate of compensation" under section 226.7(c) to have the same meaning as "regular rate of pay" under section 510(a), such that the calculation of premium pay for a non-compliant meal, rest, or recovery period, like the calculation of overtime pay, must account for not only hourly wages but also other nondiscretionary payments for work performed by the employee. The Supreme Court holds that the terms are synonymous: "regular rate of compensation" under section 226.7(c), like "regular rate of pay" under section 510(a), encompasses all non-discretionary payments, not just hourly wages. Background From June 16, 2012, to May 12, 2014, Defendant Loews Hollywood Hotel, LLC (Loews), employed Plaintiff Jessica Ferra as a bartender. Loews paid Ferra hourly wages, as well as quarterly nondiscretionary incentive payments. The Supreme Court uses the term "nondiscretionary payments" to mean payments for an employee's work that are owed pursuant to a prior contract, agreement, or promise, not determined at the sole discretion of the employer (Division of Labor Standards Enforcement (DLSE), Update of the DLSE Enforcement Policies and Interpretations Manual (rev. 2019) (2019 DLSE Manual)). If an hourly employee was not provided with a compliant meal or rest period, Loews paid the employee an additional hour of pay according to the employee's hourly wage at the time the meal or rest period was not provided. If the employee earned any nondiscretionary payments in addition to an hourly wage, like Ferra's quarterly incentive payments, Loews did not factor these payments into the calculation of premium pay owed under section 226.7(c). In 2015, Ferra filed a class action suit against Loews. Among other claims, Ferra alleged that Loews, by omitting nondiscretionary incentive payments from its calculation of premium pay, failed to pay her for non-compliant meal or rest breaks in accordance with her "regular rate of compensation" as required by section 226.7(c). The trial court granted summary adjudication for Loews on the ground that calculating premium pay according to an employee's base hourly rate is proper under section 226.7(c). The court agreed with Loews that the "regular rate of compensation" in section 226.7(c) is "not interchangeable" with the term "regular rate of pay" under section 510(a), which governs overtime pay. In light of this holding, the court held that Loews's due process challenge to section 226.7 was moot. The court granted summary judgment to Loews on Ferra's remaining causes of action. The Court of Appeal affirmed, holding that "regular rate of compensation" in section 226.7(c) and "regular rate of pay" in section 510(a) are "not synonymous, and the premium for missed meal and rest periods is the employee's base hourly wage." Justice Lee Anne Smalley Edmon dissented on this point. Tracing the history of sections 510(a) and 226.7(c) and the meaning of "regular rate" in case law and legislative usage, she concluded that "'regular rate of compensation' has the same meaning as 'regular rate of pay,' and thus includes nondiscretionary bonuses 'that are a normal and regular part of an employee's income.'" The Supreme Court granted review. Discussion Section 226.7(c) provides: "If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, . . . the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided." Similar language appears in a wage order promulgated by the Industrial Welfare Commission (IWC), see Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 262, fn. 5. IWC Wage order No. 5-2001, which applies to hotel workers, bartenders, and similar workers, says that if an employer does not provide a compliant meal or rest period, "the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that" the meal or rest period is not provided. (IWC wage order No. 5-2001, Sections 11(B), 12(B) (Wage Order No. 5-2001). Justice Liu notes that the question is what the Legislature meant when it used the phrase "regular rate of compensation" in section 226.7(c). Neither the Labor Code nor Wage Order No. 5-2001 defines the term, and the words by themselves may reasonably be construed to mean either hourly wages, as Loews contends, or hourly wages plus non-discretionary payments, as Ferra contends. Central to the parties' dispute is a comparison of the term "regular rate of compensation" in section 226.7(c), which addresses premium pay for meal, rest, or recovery period violations, with the term "regular rate of pay" in section 510(a), which addresses overtime pay. Did the Legislature intend "regular rate of compensation" to be synonymous with "regular rate of pay," a term long understood to encompass not only hourly wages but also non-discretionary payments? The Court of Appeal answered no, relying on the principle that "'[w]here different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning.'" But another principle of construction provides that "where statutes use synonymous words or phrases interchangeably, those words or phrases should be understood to have the same meaning," Justice Liu notes. Section 226.7(c) and section 510(a) both use the term "regular rate," and the history of these provisions shows that "regular rate" is a term of art encompassing not only hourly wages but also non-discretionary payments, Justice Liu explains. Further, the words "compensation" and "pay" appear interchangeably in legislative and judicial usage, and the Supreme Court finds no indication that the Legislature intended "regular rate of pay" in section 510(a) and "regular rate of compensation" in section 226.7(c) to have different meanings. Specifically, the Supreme Court finds no evidence that the "regular rate of compensation" means hourly wages only. In sum, Justice Liu states, the legislative history shows that the term "regular rate" in section 7(a) of the Fair Labor Standards Act accounts for not only hourly wages but also non-discretionary payments and that the term "regular rate of pay" as used in section 510(a) and in the IWC's earlier wage orders has the same meaning as "regular rate" in the FLSA. With this backdrop in mind, the Supreme Court now turns to the phrase "regular rate of compensation" in the context of premium pay for a non-compliant meal, rest, or recovery period. Justice Liu notes that the IWC adopted a premium pay requirement for meal or rest break violations using the term "regular rate of compensation" at the same time and in the same wage order (i.e., Wage Order No. 5-2001) that it adopted revised overtime provisions using the term "regular rate of pay." The IWC's official explanation of its action described this premium pay as "one additional hour of pay at the employee's regular rate of pay." Then, in enacting section 226.7(c), the Legislature defined premium pay for break violations as "one additional hour of pay at the employee's regular rate of compensation" to track the meal and rest break provisions of Wage Order No. 5-2001. But even if the Supreme Court were to agree with Loews that "compensation" and "pay" mean different things, there is little reason to think the former would mean something narrower than the latter, Justice Liu says. He adds that the Supreme Court has previously rejected the argument that because premium pay under section 226.7(c) is "not proportional to time worked," it is "unlike overtime premiums" (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105 (Murphy)). In Murphy, the Supreme Court acknowledged that "a one-to-one ratio does not exist between the economic injury caused by meal and rest period violations on the one hand and the remedy selected by the Legislature on the other hand." Nevertheless, the Supreme Court said, premium pay under section 226.7(c) does not differ in this respect from other remedies the Legislature has chosen "to compensate employees for certain kinds of labor or scheduling resulting in a detriment to the employee." As Murphy makes clear, contrary to Loews's argument, the 50% (or 100%) overtime premium (Section 510(a)), like the "additional hour of pay" premium for meal or rest break violations (Section 226.7(c)), "compensates the employee for events other than time spent working," Justice Liu holds. He explains that employees may suffer "noneconomic injuries" when they are forced to work through break periods, like greater risks of work-related accidents and increased stress, or denials of time free from employer control that is often needed to be able to accomplish important personal tasks. The Supreme Court sees nothing illogical about using the same metric ("regular rate") to calculate the amount of the premium owed in both contexts. While it may be difficult to assign a value to these non-economic injuries, the Legislature has selected an amount of compensation it deems appropriate, Justice Liu points out. In sum, the Supreme Court holds that the term "regular rate of compensation" in section 226.7(c) has the same meaning as "regular rate of pay" in section 510(a) and encompasses not only hourly wages but all non-discretionary payments for work performed by the employee. This interpretation of section 226.7(c) comports with the remedial purpose of the Labor Code and wage orders and with our general guidance that the "state's labor laws are to be liberally construed in favor of worker protection." In this case, the Supreme Court interprets a statute against the backdrop of a divided Court of Appeal decision and conflicting opinions of various federal district courts. The Supreme Court neither overrules nor disapproves any decision. Justice Liu holds, among other things, that the considerations bearing on the IWC's and Legislature's intent do not support the application of the canon cited by Loews. For these reasons, the Supreme Court rejects Loews's request that the Supreme Court applies its decision only prospectively. Conclusion The Supreme Court reverses the judgment of the Court of Appeal and remands for further proceedings consistent with this opinion. A full-text copy of the Court's Opinion dated July 15, 2021, is available at https://tinyurl.com/mnabuc8w from Leagle.com. Moss Bollinger, Dennis F. Moss -- dennis@dennismosslaw.com -- Ari E. Moss -- ari@mossbollinger.com; Law Offices of Sahag Majarian II and Sahag Majarian II for Plaintiffs and Appellants. Altshuler Berzon, Michael Rubin -- mrubin@altber.com -- Eileen B. Goldsmith -- egoldsmith@altshulerberzon.com; Haffner Law, Joshua H. Haffner -- jhh@haffnerlawyers.com -- Graham G. Lambert -- gl@haffnerlawyers.com; Stevens and Paul D. Stevens -- pstevens@stevenslc.com -- for California Employment Lawyers Association and Jacqueline F. Ibarra as Amici Curiae on behalf of Plaintiffs and Appellants. Capstone Law, Melissa Grant -- Melissa.Grant@CapstoneLawyers.com -- Ryan H. Wu -- Ryan.Wu@CapstoneLawyers.com -- and John E. Stobart -- John.Stobart@CapstoneLawyers.com -- for Bet Tzedek as Amicus Curiae on behalf of Plaintiffs and Appellants. Ballard Rosenberg Golper & Savitt, Richard S. Rosenberg -- rrosenberg@brgslaw.com -- John J. Manier -- jmanier@brgslaw.com -- and David Fishman -- dfishman@brgslaw.com -- for Defendant and Respondent. Seyfarth Shaw, Jeffrey A. Berman -- jberman@seyfarth.com -- Brian T. Ashe -- bashe@seyfarth.com -- and Kiran A. Seldon -- kseldon@seyfarth.com -- for California Employment Law Counsel, Employers Group and Chamber of Commerce of the United States as Amici Curiae on behalf of Defendant and Respondent. Blank Rome LLP, Brock Seraphin; Lathrop GPM and Laura Reathaford -- laura.reathaford@lathropgpm.com -- for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendant and Respondent. LOWE'S HOME: Wins Bid to Dismiss and Arbitrate Finch's Claims ------------------------------------------------------------- The U.S. District Court for the District of South Carolina, Columbia Division, grants the Defendant's Motion to Dismiss and to Compel Arbitration in the lawsuit styled Perry Finch and others similarly situated, Plaintiffs v. Lowe's Home Centers, LLC, formerly known as Lowe's Home Centers, Inc., Defendant, Case No. 3:20-cv-02981-JMC (D.S.C.). The matter is before the Court on Lowe's Motion to Dismiss and to Compel Arbitration of Plaintiff's Claims pursuant to the Federal Arbitration Act ("FAA") and Rules 12(b)(1), 12(b)(3), and/or 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Perry Finch filed this putative class action seeking damages from Defendant Lowe's Home Centers, LLC, formerly known as Lowe's Home Centers, Inc., for classifying the Plaintiff and other similarly-situated workers, who provided installation services, as independent contractors rather than employees and for failing to give Installers typical employee benefits. Specifically, the Plaintiff asserts claims against Lowe's for violating the South Carolina Payment of Wages Act and the Fair Labor Standards Act. The Plaintiff has worked "almost exclusively" as a Lowe's Installer in South Carolina for more than twenty (20) years. Over the course of that time, the Plaintiff signed multiple new contracts with Lowe's. The Plaintiff alleges these contracts--before the contract at issue in the instant case--were hand-signed in person during meetings with the District Sales Manager. In 2014, Lowe's emailed Installers a "Contract for Installation Services," which the Plaintiff electronically signed on Dec. 10, 2014. The Contract includes an arbitration clause. This arbitration clause is much more comprehensive than those in prior contracts between Lowe's and its Installers. The Plaintiff alleges that Lowe's made changes to the arbitration clause in the Contract and dumped it on the Installers as a reaction to a class action settlement in 2014 in California where Lowe's paid $6.5 million to independent contractors for causes of action almost identical to the ones brought in the instant case. On Aug. 8, 2018, the Plaintiff filed a Collective and Class Action Complaint alleging Lowe's misclassified the Installers as independent contractors rather than employees. As a result of the misclassification, the Plaintiff alleges that Installers are entitled to damages equivalent to Lowe's paid time off, including vacation, holidays, sick and volunteer time and maternity and parental leave, as well as reimbursement of all costs and expenses which Lowe's improperly charged Installers. Lowe's filed the instant Motion on Oct. 1, 2020, arguing that the arbitration clause in the Contract between the parties is valid and that, pursuant to the FAA, the clause mandates the arbitration of the Plaintiff's claims. Lowe's argues that the Court should dismiss the action and compel arbitration pursuant to a valid and enforceable arbitration agreement. The Plaintiff does not dispute the scope of the Contract's arbitration agreement. Instead, the Plaintiff argues the arbitration agreement is unenforceable for want of consideration and because it is unconscionable. Consideration Lowe's argues that the parties' mutual promise to arbitrate is sufficient consideration to create a valid arbitration agreement. Under South Carolina law, a mutual promise to arbitrate does constitute sufficient consideration to underpin an arbitration agreement (O'Neil v. Hilton Head Hosp., 115 F.3d 272, 275 (4th Cir. 1997)). District Judge J. Michelle Childs finds that the terms of the arbitration clause of the Contract demonstrate a mutual promise to arbitrate between the Plaintiff and Lowe's. She holds that the arbitration clause, in and of itself, evidences a mutual promise to arbitrate. The Plaintiff claims that the Contract's modifications clause renders Lowe's promise to arbitrate illusory. Therefore, the Plaintiff contends, Lowe's did not bind itself and there is no mutual promise to arbitrate to function as consideration therefor. Judge Childs notes that the modifications clause in the present case explicitly lists specific provisions of the Contract that are subject to modification and explicitly states that the list is nonexhaustive. The arbitration clause is a provision in the Contract not listed by the modifications clause. The Court finds the modifications clause expressly stating that such a non-enumerated provision is subject to modification directly applies to the arbitration clause. Thus, the Plaintiff's illusory promise challenge is one to the arbitration agreement itself and is for the Court to decide. The Court finds the modifications clause does not render Lowe's promise to arbitrate illusory because the clause does not give Lowe's unfettered discretion. Any modifications Lowe's makes to the provisions of the Contract do not come into effect until those modifications are accepted by the Installers through their "acceptance of Orders and performance of Installation Services." While the Plaintiff can argue that this may not be particularly fair, the fact that modifications must be accepted before taking effect means the promise of Lowe's to arbitrate is not illusory, Judge Childs holds. Therefore, there is valid consideration to support the arbitration agreement. Unconscionability To prove the arbitration clause was unconscionable under North Carolina law, the Plaintiff bears the burden of showing both procedural unconscionability and substantive unconscionability. Procedural unconscionability involves bargaining naughtiness in the form of unfair surprise, lack of meaningful choice, and an inequality of bargaining power. In Tillman v. Com. Credit Loans, Inc., 655 S.E.2d 362, 370 (N.C. 2008), the leading North Carolina case on the unconscionability of arbitration agreements, the North Carolina Supreme Court's plurality found procedural unconscionability based on five (5) factors: (1) the plaintiffs were rushed through signing the contract; (2) the closing officer indicated where to sign; (3) there was no mention of the arbitration clause at the closing; (4) the defendants admitted they would have refused to complete the deal rather than negotiate terms of the arbitration agreement; and (5) "the bargaining power between the defendants and the plaintiffs was unquestionably unequal in that the plaintiffs were relatively unsophisticated consumers contracting with corporate defendants." Judge Childs finds that many of the factors present in Tillman are missing from the instant case. The Plaintiff makes no allegation that he was rushed through signing the Contract. To the contrary, the internal audit proffered by Lowe's shows that the email sent to the Plaintiff's account containing the Contract was opened (and, presumably, read) twice before the Contract was signed. Upon consideration, the Court finds that the Plaintiff has failed to meet his burden to establish procedural unconscionability. Substantive unconscionability refers to harsh, one-sided, and oppressive contract terms. The terms must be so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other. The Court finds that the Plaintiff's argument, supported by no authority and based solely on a hypothetical modification, is not enough to overcome his burden to prove that the modifications clause as applied to the arbitration clause amounts to contract terms so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other. Thus, the Plaintiff has failed to meet his burden to show that the arbitration agreement's terms are so "harsh, one-sided, and oppressive" as to be substantively unconscionable, Judge Childs holds, citing Wilner v. Cedars of Chapel Hill, LLC, 773 S.E.2d 337 (N.C. Ct. App. 2015). Considering all the facts and circumstances of this particular case, the Court finds the Plaintiff has failed to show that the arbitration agreement is unconscionable. Arbitration and Dismissal As the Plaintiff has failed to meet his burden to show the arbitration agreement is unenforceable and makes no argument that the agreement's scope does not cover the causes of action in the present case, the Court finds that all of the Plaintiff's claims are arbitrable. Following the Fourth Circuit's direction, the Court finds dismissal is a proper remedy in the case. Conclusion For these reasons, the Court grants Lowe's Motion to Dismiss and to Compel Arbitration of Plaintiff's Claims. The case is dismissed without prejudice. A full-text copy of the Court's Order and Opinion dated July 15, 2021, is available at https://tinyurl.com/3rnbbjdv from Leagle.com. LYFT INC: Islam Appeals Ruling in Breach of Contract Suit --------------------------------------------------------- Plaintiff MD Islam filed an appeal from a court ruling entered in the lawsuit styled MD Islam, on behalf of himself and those similarly situated v. LYFT, INC., Case No. 20-cv-3004, in the U.S. District Court for the Southern District of New York (New York City). As reported in the Class Action Reporter on April 22, 2020, the lawsuit is brought for breach of contract on behalf of similarly situated New York City drivers. The Plaintiff alleges that the drivers, during the period from June 27, 2019, to the present, have been subjected to Lyft's unlawful practice, in violation of the driver agreement, of forcibly logging off Lyft drivers from the Lyft app if they perform fewer than 100, or 180 rides in a 30-day period. Such actions violate the spirit, if not the letter, of Taxi and Limousine Commission regulations intended to confer basic labor protections upon some of the City's most vulnerable low-wage workers, the Plaintiff contends. Crucially, the Plaintiff notes, the Lyft contracts specifically provide that drivers shall have no limitations on their ability of where and when to access the Lyft app. Thus, Lyft's forced log-outs and restricted access to the Lyft app constitute a material breach of Lyft's contract with its drivers, the Plaintiff argues. Although Lyft had long had a practice of forcibly logging out drivers, who did not respond to trip requests, indicating that they were not ready to perform work, Lyft had never previously suspended drivers, who were ready, willing, and able to perform trips for Lyft, the Plaintiff adds. Lyft's forced logouts of its affiliated drivers amount to nothing less than short term layoffs of workers, who have come to depend on the availability of full-time work in order to meet their work expenses, let alone the cost of living in New York City, the Plaintiff contends. The effect of Lyft's unilateral shift in policies has been to significantly reduce the working hours of thousands of drivers overnight. These drivers are now earning hundreds of dollars less per week and may, if Lyft's breach of contract continues unchecked, cost drivers thousands of dollars per year in take-home pay, says the complaint. The Plaintiff now seeks a review of the Court's Opinion and Order dated March 9, 2021, granting Defendant's motion to compel arbitration and to stay the litigation and denying Plaintiff's motion for discovery as moot, and the Court's Memorandum Opinion and Order dated June 28, 2021, denying Plaintiff's motion for reconsideration. The appellate case is captioned as Islam v. Lyft, Inc., Case No. 21-1772, in the United States Court of Appeals for the Second Circuit, filed on July 21, 2021.[BN] Plaintiff-Appellant MD Islam, on behalf of himself and those similarly situated, is represented by: Ria Julien, Esq. MIRER MAZZOCCHI & JULIEN, PLLC 1 Whitehall Street New York, NY 10004 Telephone: (212) 231-2235 E-mail: ria@mmsjlaw.com Defendant-Appellee Lyft, Inc. is represented by: Matthew David Ingber, Esq. MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 506-2373 E-mail: mingber@mayerbrown.com LYONS DOUGHTY: Saroza Appeals Summary Judgment Ruling in FDCPA Suit ------------------------------------------------------------------- Plaintiff Nestor Saroza filed an appeal from a court ruling entered in the lawsuit styled NESTOR SAROZA v. LYONS, DOUGHTY & VELDHUIS, P.C., Case No., Case No. 1-17-cv-00523, in the United States District Court for the District of New Jersey. As reported in the Class Action Reporter on June 29, 2021, the Hon. Judge Robert B. Kugler entered an order holding that: 1) Plaintiff's Motion to Certify Class is denied as moot; 2) Defendant's Motion for Summary Judgment is granted; 3) Defendant's Motion to Seal is granted; and 4) Plaintiff's Motion for Summary Judgment is denied as moot. The lawsuit is a putative class action alleging violations of the Fair Debt Collection Practices Act by Defendant Lyons, Doughty & Veldhuis, P.C. Plaintiff Saroza, an individual who was a Capital One cardholder, defaulted on his Capital One account, and Capital One charged off his account balance of $9,971.75. After Saroza defaulted, Capital One referred Saroza's delinquent account to Defendant LDV, a debt collection firm, for litigation. The Defendant filed suit in the Superior Court of New Jersey against Plaintiff Nestor Saroza seeking to recover $9,971.55 of credit card debt that Saroza allegedly failed to pay. In its collection efforts, LDV paid $75.00 to file the action on behalf of Capital One and also paid a $7.00 fee for certified mail service of the Summons and Complaint. Together, the collection costs totaled $82.00, the suit says. After filing the lawsuit, on January 19, 2016, the Defendant sent a letter to Saroza. Saroza contends that the Letter misrepresented the total debt that he owed because the Letter did not itemize the $82.00 as separate and apart from the principal balance amount of $9,971.55. Believing this to be a violation of the FDCPA, Saroza filed the present putative class action alleging violations of the FDCPA, added the suit. The Plaintiff now seeks a review of the order entered by Judge Kugler, which order granted Defendant's Motion for Summary Judgment, among others. The appellate case is captioned as Nestor Saroza v. Lyons Doughty & Veldhuis, Case No. 21-2350, in the United States Court of Appeals for the Third Circuit, filed on July 19, 2021.[BN] Plaintiff-Appellant NESTOR SAROZA, on behalf of himself and all other similarly situated, is represented by: Lawrence C. Hersh, Esq. 17 Sylvan Street Rutherford, NJ 07070 Telephone: (201) 507-6300 E-mail: lh@hershlegal.com Defendant-Appellee LYONS DOUGHTY & VELDHUIS is represented by: Laurie H. Lyons, Esq. LYONS DOUGHTY & VELDHUIS 136 Gaither Drive, Suite 100 Mount Laurel, NJ 08054 Telephone: (856) 222-0166 MADERA COUNTY: Court Tosses Cuellar Bid for Injunctive Relief -------------------------------------------------------------- In the class action lawsuit captioned as TRAVIS JUSTIN CUELLAR, v. MADERA COUNTY DEPT. OF CORRECTIONS, BENJAMIN MENDOZA, ALVAREZ, Case No. 1:20-cv-00388-HBK (E.D. Cal.), the Court entered an order denying the plaintiff's motions for injunctive relief. The Court said, "Here, Cuellar seeks prospective relief so he may access the courts to litigate his pending federal and state cases. But Cuellar is no longer incarcerated or detained in the Madera County Correctional Facility. Cuellar does not claim that Defendants are taking ongoing actions to violate his access to the courts now that he has been released from custody. Further, the Court finds the actions complained of by Cuellar for which he seeks injunctive relief are not reasonably expected to recur in the future. Therefore, the Plaintiff's motions for injunctive relief are denied as moot." The Plaintiff Travis Justin Cuellar initiated this action while he was an inmate in the Madera County Correctional Facility by filing a pro se civil rights complaint under 42 U.S.C. section 1983 on March 16, 2020. The Plaintiff is proceeding on his First Amended Complaint filed April 23, 2020. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/2WGaH1X at no extra charge.[CC] MAJOR LEAGUE: Faces Minor League Baseball Players' Class Action --------------------------------------------------------------- Law360 reports that a class of minor league baseball players suing over alleged starvation wages won a California federal court order on July 23 allowing some of them to pursue an injunction requiring Major League Baseball to comply with labor laws. [GN] MDL 2179: Bid to Dismiss DeSilva's Claim in Oil Spill Suit Denied ----------------------------------------------------------------- The U.S. District Court for the Eastern District of Louisiana denies BP's motion to dismiss John DeSilva's complaint in the multidistrict litigation styled In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, SECTION: J(2). Applies to: No. 16-05277, master MDL docket, MDL No. 10-md-2179 (E.D. La.). Before the Court is BP's Motion to Dismiss for Lack of Standing to Prosecute the Claim, which seeks to dismiss the complaint by John DeSilva. After considering the parties' arguments, the record, and the applicable law, the Court finds that BP's motion should be denied. However, in light of certain misrepresentations by DeSilva and his counsel, the Court further orders DeSilva and his attorney to show cause why they should not be sanctioned. John DeSilva filed this action seeking to recover economic losses that allegedly resulted from the oil spill, which began in April 2010. Years before the oil spill, DeSilva purchased property located at 2707 Pass-A-Grille Way in St. Pete Beach, Florida ("Property"). The Property consists of three buildings with nine guest rooms and a large dock. There is no dispute that DeSilva was the titled owner of the Property until he sold it in 2017. Mr. DeSilva was also the sole owner and operator of The Bird of Paradise, LLC ("TBOP"), a limited liability company organized under Florida law. In 2004, the State of Florida issued to TBOP a Single Resort Dwelling License. This license allowed the Property "to be rented as a resort property and to generate potential revenue." While the complaint states that it is brought by "JOHN DeSILVA, INDIVIDUALLY, AND AS THE SOLE MEMBER, OWNER, AND OPERATOR OF THE BIRD OF PARADISE, LLC," the record is now clear that DeSilva is the only plaintiff. TBOP is not a party to the lawsuit. The current evidence reflects that the Property was being rented to various guests prior to the oil spill, generating around $44,000 per month in gross revenue. DeSilva asserts that, at the time of the oil spill, preparations were underway to commence a major renovation that would have increased guest capacity and transformed the estate into a "celebrity guest and charity venue." Indeed, in 2009 the City of St. Pete Beach granted a zoning variance for the planned expansion. In February 2010, a lender tentatively committed to finance the renovation. DeSilva alleges that revenue would have dramatically increased had the renovation occurred. Multiple reservations were cancelled following the oil spill, and revenue was only $15,000 for the rest of 2010 (May to Dec.). Furthermore, the lender withdrew its tentative commitment, citing the oil spill. Alternative financing was not obtained, and the renovations never occurred. Seven years later, on June 16, 2017, DeSilva sold both the Property and TBOP to entities controlled by Steven MacDonald. DeSilva did not reserve for himself any claims for spill-related losses when these transfers occurred. TBOP was dissolved in September 2020. Mr. DeSilva seeks to recover for the following economic losses: (1) the loss of prespill value of the Property when sold post-spill, (2) loss of rental and other business revenue due to the spill, and (3) the loss of financing and the related inability to effect the planned expansion of the Property and business. There is no dispute that the Property was not oiled, and DeSilva does not claim that any physical damage occurred. The first issue presented in BP's motion is whether DeSilva "owns" the claims asserted in his complaint. BP points out that the Single Resort Dwelling License, which allowed the Property to be rented, was in TBOP's name, and DeSilva's previous filings in this litigation indicate that "the claim" was TBOP's asset. As a limited liability company, TBOP was an entity distinct from its members. Its property is separate from that of its member, and it can sue and be sued in its own name. Moreover, when DeSilva sold TBOP in 2017, he did not reserve any claim for himself. Thus, BP argues that the claims are not DeSilva's to pursue. Mr. DeSilva responds that the claims always belonged to him, personally. DeSilva points out that the Property was in his name, not TBOP's, until he sold it in 2017. DeSilva contends the Property would have sold for more had the oil spill not occurred; therefore, he personally incurred that loss. He also asserts that TBOP owned no assets, although he simultaneously concedes that the Single Resort Dwelling License was TBOP's property. The Court need not spend much time on this question. On June 8, 2021, Steven MacDonald, whose companies purchased the Property and TBOP in 2017, executed an assignment transferring any oil spill claims he or his companies may have acquired back to DeSilva. MacDonald further states, "It was my, TBOP's and MacDonald's other company's intent that the Claims were always to be those of John R. DeSilva, and there was never any intent to acquire those Claims as part of either TBOP or 2707 Pass-A-Grille Way property acquisitions from Mr. DeSilva." In light of this assignment, the Court finds that to the extent any oil spill claims were included in the 2017 transfer, they are now back with DeSilva. Arguing in the alternative, BP contends that DeSilva cannot personally assert these claims because he failed to opt out of the Deepwater Horizon Economic and Property Damages Settlement ("Settlement"). Under the Settlement, class members released and promised not to sue certain parties for certain types of claims unless the class member submitted a valid opt-out by Nov. 1, 2012. There is no dispute that if DeSilva did not opt out of the Settlement, then the Settlement's class-wide release bars his lawsuit. DeSilva contends he did opt out of the Settlement and provides a copy of the purported opt-out. BP argues that this document excluded TBOP from the Settlement, not DeSilva. The purported opt-out is a form that was created by DeSilva's attorney. At the top of the form is a space to write the "Claimant Name." "The Bird of Paradise, LLC by John DeSilva" is printed in this space. DeSilva did personally sign the opt-out. However, immediately underneath his signature are the words "The Bird of Paradise, LLC by John DeSilva." In November 2012 and in March 2016, the claims administrator's vendor filed lists of timely and valid opt-outs. TBOP is included on these lists; DeSilva is not. Considering this, the Court finds that, strictly speaking, the opt-out excluded the TBOP from the Settlement, not DeSilva. Nevertheless, the Court construes DeSilva's position to be that the opt-out should be deemed to have opted out both TBOP and DeSilva, even if it literally did not do so. In an appeal that arose from another case in this MDL, the Fifth Circuit noted that other circuits and district courts have sometimes enforced "informal" or "imperfect" opt-out requests, see In re Deepwater Horizon (Mason), 819 F.3d 190, 196-97 (5th Cir. 2016). Still, Mason refused to construe a motion to sever the plaintiff's case from the MDL as an opt-out, even though the motion was filed before the opt-out deadline. To be sure, the Fifth Circuit did not decide in Mason whether it would permit an "informal" or "imperfect" opt-out request. However, this Court believes that the Circuit would accept such a request if presented under the right set of circumstances. Furthermore, this Court believes those circumstances exist here. District Judge Carl Barbier notes that first and foremost, DeSilva personally signed the opt-out request and submitted it before the deadline, which sets him apart from Mason and many other failed opt-out attempts in this MDL. Thus, Judge Barbier opines, among other things, that there can be no doubt that DeSilva personally and timely gave his express consent to exclude his wholly-owned LLC, if not explicitly himself, from the Settlement. Accordingly, the Court deems TBOP's opt-out as excluding DeSilva from the Settlement, as well. The Court will deny BP's motion for the stated reasons. It now turns to DeSilva's and his attorney's conduct during these proceedings. Until very recently, DeSilva and his attorney have repeatedly and vigorously asserted that DeSilva never sold TBOP. The issue was first brought to the Court's attention on Sept. 9, 2020, almost a year ago, when the Court held a status conference with counsel to discuss this case and about a dozen others. There BP's attorney argued that it appeared that DeSilva had sold TBOP in 2017 and they don't see evidence that he actually retained the claim. Mr. DeSilva's attorney did not dispute at that time that DeSilva had sold TBOP; rather, he argued that the claim was simply not included in the sale. While discussing what discovery might be needed to resolve this issue, the Court commented that "it just strikes me fundamentally that a document that might be relevant would be whatever documents related to the sale of the business, because those documents perhaps state whether this claim was sold or retained or what." DeSilva's attorney responded. Following the status conference, the Court entered PTO 69, which set forth a discovery and briefing schedule for this case and several others. After the status conference and despite further requests from BP, DeSilva did not produce any documents concerning the sale of TBOP, although he did produce documents concerning the sale of the Property. On Feb. 22, 2021, BP filed the instant motion where it argued that the evidence it did have indicated that the claim at issue belonged to TBOP, that TBOP was sold in 2017 along with the Property, and that there is no evidence that DeSilva retained TBOP's claim after the sale. BP relied on, inter alia, the fact that the Florida Department of State's website showed that (1) Steven MacDonald had replaced DeSilva as the manager of TBOP in April 2018, and (2) TBOP was subsequently dissolved while under MacDonald's management. Mr. DeSilva filed an opposition in which he repeatedly denied that TBOP was ever sold. DeSilva's attorney made similar statements at a hearing on April 21, 2021. Non-party Steven MacDonald subsequently produced documents that prove the statements by DeSilva and his attorney were patently false. MacDonald produced a signed purchase agreement dated June 16, 2017, whereby DeSilva sold 100% of his interest in TBOP to a company controlled by MacDonald. The agreement also states that TBOP owns a license that permits TBOP "to operate as a private resort at the property located at 2707 Pass-A-Grille Way." Thus, this transfer gave MacDonald control over not only TBOP, but the resort license, as well. Furthermore, MacDonald explained in a declaration under penalty of perjury that, consistent with the purchase agreement, he listed himself as the member-manager of TBOP with the Florida Department of State in April 2018. Two days after MacDonald produced the purchase agreement, DeSilva admitted at his deposition that he had indeed sold TBOP in 2017. Judge Barbier states that DeSilva and his attorney have misrepresented facts to the Court. It appears that their false statements have delayed resolution of this matter and created additional and unnecessary work for the Court, BP, and non-party MacDonald. Consequently, the Court orders DeSilva and his attorney to show cause in writing by no later than Aug. 2, 2021, why either or both of them should not be sanctioned under the Court's inherent authority and/or Fed. R. Civ. P. 11. The Court is considering imposing the following sanctions: (1) requiring DeSilva and/or his attorney to pay some of BP's expenses and attorney fees; and/or (2) requiring DeSilva and/or his attorney to pay a fine to the Court. BP may file a reply, if it chooses to do so, by no later than Aug. 9, 2021. Accordingly, BP's Motion to Dismiss for Lack of Standing to Prosecute the Claim is denied. Plaintiff John R. DeSilva and his attorney, Ronnie G. Penton, will show cause in writing by no later than Aug. 2, 2021, why either or both of them should not be sanctioned as set forth in Part IV of this Order. BP may file a reply by no later than Monday, Aug. 9, 2021. A full-text copy of the Court's Order & Reasons dated July 19, 2021, is available at https://tinyurl.com/6jmm9abx from Leagle.com. METLIFE GROUP: Plan Members' ERISA Suit Allege Fund Mismanagement ----------------------------------------------------------------- Rita Kohari, John Radolec and Mohani Jaikaran, individually and as representatives of a class of similarly situated persons, and on behalf of the MetLife 401(k) Plan (formerly the Savings and Investment Plan for Employees of Metropolitan Life and Participating Affiliates), Plaintiffs, v. MetLife Group, Inc., Metropolitan Life Insurance Company, the Benefit Plans Investment Advisory Committee, and John and Jane Does 1-20, Defendants, Case No. 21-cv-06146 (S.D. N.Y., July 19, 2021), seeks appropriate monetary, equitable and other relief under the Employee Retirement Income Security Act of 1974. The MetLife 401(k) Plan was sponsored by Metropolitan Life Insurance Company until September 2018, when MetLife Group became the plan sponsor. It covers eligible employees of Metropolitan Life, MetLife Group, Metropolitan Property and Casualty Insurance Company, MetLife Funding, Inc., MetLife Credit Corp. and SafeGuard Health Plans, Inc. Eligible employees saving for retirement may contribute a percentage of their earnings on a pre-tax basis to the plan. Metropolitan Life is one of the largest global providers of insurance, annuities and employee benefits. MetLife Group is a subsidiary of MetLife, Inc. Plaintiffs are plan members. They claim that the Defendants breached their fiduciary duties with respect to the plan by applying an imprudent and disloyal preference for MetLife index fund products within the plan, despite their poor performance, high costs and lack of traction among fiduciaries of similarly sized plans. The plan's investment menu consists of nine investment options and a self-directed brokerage account. Eight of the nine investment options are MetLife proprietary investments, including all seven of the at-issue index funds. [BN] Plaintiff is represented by: Paul J. Lukas, Esq. Kai H. Richter, Esq. Brock J. Specht, Esq. Grace I. Chanin, Esq. NICHOLS KASTER, PLLP 4700 IDS Center 80 S 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 Email: lukas@nka.com krichter@nka.com bspecht@nka.com gchanin@nka.com MIDLAND, TX: Nichols Bid for Leave to File Amended Complaint OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as DEBBIE NICHOLS v. RORY MCKINNEY, RICHARD GILLETTE IN HIS CAPACITY AS MIDLAND COUNTY SHERRIFF, and MIDLAND COUNTY, TEXAS, Case No. 7:20-cv-00043-DC (W.D. Tex.), the Hon. Judge David Counts entered an order: 1. granting motion for leave to file amended complaint; and 2. directing the Plaintiff to move to certify a class within 45 days of the entry of this Order. The Court said, "Since Plaintiff submitted the Motion for Leave a full day before the deadline for amendments in the scheduling order, she did not trigger Rule 16. Therefore, the issue of amendment is governed by Rule 15(a). As amendment is permissible with the consent of the opposing party, there are no issues with respect to that claim. The Defendants oppose Plaintiff's request for leave to expand the class action complaint. The Plaintiff's Motion for Leave argues that justice requires granting the motion. The Defendants' Response specifically asserts that three of the five Foman factors are present: bad faith or dilatory motive, undue prejudice, and futility." The Plaintiff filed this civil action in the United States District Court on February 18, 2020. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3BPhjLk at no extra charge.[CC] MINNESOTA: Gamble Appeals Ruling in Civil Rights Suit to 8th Cir. ----------------------------------------------------------------- Plaintiffs David Gamble, et al., filed an appeal from a court ruling entered in the lawsuit styled DAVID LE ROY GAMBLE, JR., CYRUS PATRICK GLADDEN, II, DAVID JAMES JANNETTA, JERRAD WILLIAM WAILAND, and CLARENCE ANTONIA WASHINGTON, and all others similarly situated, Plaintiffs v. MINNESOTA STATE-OPERATED SERVICES, MINNESOTA STATE INDUSTRIES, MINNESOTA SEX OFFENDER PROGRAM, DEPARTMENT OF HUMAN SERVICES, THE STATE OF MINNESOTA, EMILY JOHNSON PIPER, and JODI HARPSTEAD, in her official capacity, Defendants, Case No. 16-cv-02720-JRT, in the U.S. District Court for the District of Minnesota. The Plaintiffs, civil detainees in the Minnesota Sex Offender Program (MSOP) and participants in MSOP's Vocational Work Program, initiated this case against MSOP, claiming that the Program constitutes employment under the Fair Labor Standards Act and MSOP improperly withholds a portion of their wages. The Defendants have filed a motion for summary judgment, and Plaintiffs have filed a partial motion for summary judgment as to Defendants' liability. On June 30, 2021, Chief Judge John R. Tunheim entered an Order granting Defendants' motion and denying Plaintiffs' motion because there remains no genuine dispute of material fact that the VWP is not employment as defined in the FLSA. The Court further denied Plaintiffs' motion because Defendants are immune from liability under the Portal-to-Portal Act. The Plaintiffs now seek a review of the order entered by Judge Tunheim. The appellate case is captioned as David Gamble, et al. v. Minnesota State-Operated Svcs, et al., Case No. 21-2626, in the United States Court of Appeals for the Eighth Circuit, filed on July 23, 2021.[BN] Plaintiffs-Appellants David Leroy Gamble, Cyrus Patrick Gladden, II, David James Jannetta, Jerrad William Wailand, Clarence Antonia Washington, and all others similarly situated, are represented by: Charlie R. Alden, II, Esq. GILBERT & ALDEN 2801 Cliff Road, E., Suite 200 Burnsville, MN 55337 Telephone: (612) 990-2484 Defendants-Appellees Minnesota State-Operated Services, Minnesota State Industries, Minnesota Sex Offender Program, Department of Human Services, State of Minnesota, and Jodi Harpstead, Acting Minnesota Department of Human Services Commissioner, in her official capacity, are represented by: Kathryn Iverson Landrum, Esq. ATTORNEY GENERAL'S OFFICE 445 Minnesota Street, Suite 1100 Saint Paul, MN 55101 Telephone: (651) 757-1189 E-mail: kathryn.landrum@ag.state.mn.us MIYABI INC: Minnesota Court Approves Settlement; Seow Suit Tossed ----------------------------------------------------------------- The U.S. District Court for the District of Minnesota grants the parties' motion for approval of settlement and dismisses with prejudice the lawsuit styled Kok Haut Seow, Jisoo Kim, and Nae Kyong Yom, Plaintiffs v. Miyabi Inc., Lin Sushi Inc., Cher Leong Yong, Zhongzi Zhen, Kevin Yong, and Youyan Chen, Defendants, Case No. 19-cv-2692(JNE/DTS) (D. Minn.). Plaintiffs Kok Haut Seow, Jisoo Kim, and Nae Kyong Yom worked at the Defendants' restaurant. The Plaintiffs allege that the Defendants violated the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq. ("FLSA"), as well as the Minnesota Fair Labor Standards Act. Though the Plaintiffs brought the case as a collective action and class action, they have not filed a motion for certification and no other individuals have opted in. On July 30, 2020, the parties reached a settlement at a settlement conference before the Honorable David T. Schultz, United States Magistrate Judge. The Plaintiffs subsequently filed an unopposed motion to approve the settlement agreement. However, the parties admitted that they did not separately negotiate attorney fees as the Plaintiffs had a contingency agreement in place with their counsel. Consequently, the Court denied the motion to approve the settlement agreement. The Plaintiffs and their counsel have since set aside their contingency agreement and the parties have negotiated a new settlement agreement, again before Magistrate Judge Schultz. The parties assert that they negotiated the attorney fee amount separately from the Plaintiffs' claims and that the settled attorney fee amount is based on an exchange of itemized time entries. According to the parties, the settled attorney fee amount represents a 62% reduction in fees from a pure lodestar method. As part of the settlement agreement, the Plaintiffs agree to dismiss their claims with prejudice. When considering whether a settlement is fair and reasonable, courts look to various factors, including: (1) the stage of the litigation and the amount of discovery exchanged, (2) the experience of counsel, (3) the probability of the plaintiff's success on the merits, (4) any overreaching by the employer in the settlement negotiations, and (5) whether the settlement is the product of arm's length negotiations between represented parties based on the merits of the case. See Stainbrook v. Minn. Dep't of Pub. Safety, 239 F.Supp.3d 1126 (D. Minn. 2017)). District Judge Joan N. Ericksen finds that the parties' settlement is fair and reasonable. As to the first factor, written discovery has taken place and the parties have had several settlement discussions. As to the second factor, both parties' attorneys are competent. The parties assert that their attorneys have handled numerous cases involving complex litigation. Regarding the third factor, the Plaintiffs maintain that their FLSA claims are strong and can be proven at trial. However, a finding of liability is never assured, and the settlement agreement avoids delay and uncertainty. Concerning the fourth and fifth factors, there is no indication of the Defendants' overreaching, Judge Ericksen notes. Magistrate Judge Schultz mediated the settlement in a court-ordered settlement conference. If FLSA settlements are subject to judicial review, the Court has the authority to ensure attorney fees are "negotiated separately and without regard to the plaintiff's FLSA claim." Here, the parties negotiated the attorney fee amount separately from the Plaintiffs' FLSA claims, Judge Ericksen finds. The parties assert that the fee amount is based on an exchange of itemized time entries. Furthermore, the fee amount is not so exorbitant as to indicate collusion. According to the parties, the settled fee amount represents a 62% reduction in fees from a pure lodestar method. Based on the files, records, and proceedings, and for the reasons stated, the Motion for Approval of Settlement is granted. The action is dismissed with prejudice. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/3277mtem from Leagle.com. MOLSON COORS: Wagner Slams Seltzer Drink's Deceptive Labels ----------------------------------------------------------- Joseph Wagner as an individual, on behalf of himself, the general public and those similarly situated, Plaintiff, v. Molson Coors Beverage Company, Defendant, Case No. 21-cv-05461 (N.D. Cal., July 15, 2021), seeks redress for alleged deceptive and unlawful practices in labeling and marketing its Vizzy Hard Seltzer in violation of the Consumers Legal Remedies Act of the California Civil Code, and False Advertising Law of the Business and Professions Code. Wagner accuses Molson Coors of fortifying its alcoholic beverage with nutrients by adding insignificant amounts of Vitamin C and misrepresented its labels and advertising with statements affirmatively promoting antioxidants from Vitamin C from "Acerola Superfruit" thereby deceiving its consumers. [BN] Plaintiff is represented by: Seth A. Safier, Esq. Marie A. Mccrary, Esq. Hayley Reynolds, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 639-9090 Facsimile: (415) 449-6469 MONTGOMERY, AL: Carter Appeals Class Cert. Bid Denial to 11th Cir. ------------------------------------------------------------------ Plaintiff ALDARESS CARTER filed an appeal from a court ruling entered in the lawsuit entitled ALDARESS CARTER, individually and on behalf of a class of similarly situated persons, v. THE CITY OF MONTGOMERY, et al., Case No. 2:15-cv-00555-RCL-SMD, in the U.S. District Court for the Middle District of Alabama. The Plaintiff alleges that several of his statutory and constitutional rights were violated by Defendants' "policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets." In sum, the Plaintiff alleges that in 2011 he was placed on "probation" under the supervision of Defendant JCS for failure to pay fines, fees and costs related to traffic tickets. After the Plaintiff failed to respond to several "failure to report" letters issued by JCS, which the Plaintiff alleges he did not receive, JCS petitioned for Plaintiff's "probation" to be revoked. The Plaintiff never received notice that a hearing was being held, but on January 30, 2013, Montgomery issued a warrant for Plaintiff's arrest for "Failure to Appeal" in court. The Plaintiff was arrested nearly a year later, still without having received notice of the earlier court dates or bench warrant until his arrival at the Montgomery City jail. When Plaintiff appeared before the judge he was ordered to pay $915 for the fines and fees associated with his unpaid traffic tickets to secure his release. The Plaintiff was released on January 30, 2014, after his mother paid $452 on his behalf. The Plaintiff then discovered that Defendant Branch D. Kloess had entered a notice of appearance on his behalf, though he had never met Kloess and did not know who he was. Defendant Kloess "did not appear before the judge to plead [Plaintiff's] indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with [Plaintiff] and file any pleading raising the issue of his indigency." Mr. Carter moved to certify four classes: a City class, a JCS Bearden subclass, a Kloess subclass, and a false-imprisonment class. 1. City Class consists of: "all individuals the Montgomery Municipal Court placed on JCS-supervised probation, who (1) had debt commuted to jail time in a JCS-supervised case after JCS petitioned the court to revoke probation; and (2) served any of that jail time on or after August 3, 2013." 2. JCS Bearden Subclass consists of: "all individuals in the City Class who served any of their post-commutation jail time on or after September 11, 2013." 3. Kloess Subclass consists of: "all individuals in the City Class whose debt was commuted to jail time on a date when Branch Kloess was the public defender assigned to the jail docket or for whom Benchmark court records or other documents indicate the individuals were represented by Branch Kloess for the commutation." 4. False-Imprisonment Class consists of: "all individuals the Montgomery Municipal Court placed on JCS-supervised probation, who (1) had debt commuted to jail time in a JCS-supervised case after JCS petitioned the court to revoke probation; and (2) served any of that jail time on or after September 11, 2009." The Plaintiff now seeks a review of the Court's Memorandum Opinion and Order dated May 21, 2021, denying his motion for class certification. The appellate case is captioned as Aldaress Carter v. The City of Montgomery, et al., Case No. 21-12468, in the United States Court of Appeals for the Eleventh Circuit, filed on July 23, 2021. The briefing schedule in the Appellate Case states that: -- Appellant's Certificate of Interested Persons is due on or before August 6, 2021 as to Appellant Aldaress Carter; and -- Appellee's Certificate of Interested Persons is due on or before August 20, 2021 as to Appellees Judicial Correctional Services, Inc., et al. [BN] Plaintiff-Appellant ALDARESS CARTER, individually, and for a class of similarly situated persons or entities, is represented by: Leslie Andrea Bailey, Esq. Brian Hardingham, Esq. John He, Esq. PUBLIC JUSTICE, PC 475 14th St Ste 610 Oakland, CA 94612-1928 Telephone: (510) 622-8203 - and - Alexandra Brodsky, Esq. PUBLIC JUSTICE, PC 1620 L St NW Ste 630 Washington, DC 20036 Telephone: (202) 797-8600 - and - George Daniel Evans, Esq. Maurine C. Evans, Esq. Alexandria Parrish, Esq. THE EVANS LAW FIRM, PC 1736 Oxmoor Rd Ste 101 Birmingham, AL 35209 Telephone: (205) 870-1970 E-mail: gdevans@evanslawpc.com mevans@evanslawpc.com ap@evanslawpc.com - and - Toby James Marshall, Esq. TERRELL MARSHALL & DAUDT, PLLC 936 N 34th St Ste 400 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Defendants-Appellees THE CITY OF MONTGOMERY, BRANCH D. KLOESS, and JUDICIAL CORRECTIONAL SERVICES, INC. are represented by: Michael David Brymer, Esq. Kimberly Owen Fehl, Esq. OFFICE OF THE CITY ATTORNEY 103 N Perry St Montgomery, AL 36104 Telephone: (334) 241-2050 - and - Richard Hamilton Gill, Esq. Shannon L. Holliday, Esq. Robert D. Segall, Esq. COPELAND FRANCO SCREWS & GILL, PA 444 S Perry St Montgomery, AL 36104 Telephone: (334) 834-1180 E-mail: holliday@copelandfranco.com - and - Micheal Stewart Jackson, Esq. WEBSTER HENRY LYONS BRADWELL COHAN & BLACK, PC PO Box 239 105 Tallapossa St Ste 101 Montgomery, AL 36101 Telephone: (334) 264-9472 E-mail: mjackson@websterhenry.com - and - Wilson Franklin Green, Esq. FLEENOR & GREEN, LLP 1657 McFarland Blvd N Ste G2A Tuscaloosa, AL 35406 Telephone: (205) 722-1018 - and - Jonathan Griffith, Esq. Michael Leon Jackson, Esq. Larry Logsdon, Esq. Wesley Kyle Winborn, Esq. WALLACE JORDAN RATLIFF & BRANDT, LLC PO Box 530910 Birmingham, AL 35253 Telephone: (205) 870-0555 E-mail: mjackson@wallacejordan.com llogsdon@wallacejordan.com wwinborn@wallacejordan.com MT. HAWLEY INSURANCE: N.D. Illinois Dismisses Byberry Class Suit ---------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motion to dismiss the lawsuit styled BYBERRY SERVICES AND SOLUTIONS, LLC, et al., Plaintiffs v. MT. HAWLEY INSURANCE COMPANY, Defendant, Case No. 20-cv-03379 (N.D. Ill.). Plaintiffs Byberry Services and Solutions, LLC, JA Fitness 1, LLC, and JA Fitness 2, LLC bring this action against Mt. Hawley Insurance Company individually and on behalf of a class. The Plaintiffs allege that Mt. Hawley breached its insurance contract with them by failing to compensate them for losses that arose during the COVID-19 pandemic. Mt. Hawley asserts that the complaint fails to state a claim and has moved for its dismissal. Background The Plaintiffs operate franchises of Snap Fitness Center, a 24-hour gym. Byberry Services and Solutions, LLC, operates a Snap in Columbus, New Jersey, while JA Fitness 1, LLC and JA Fitness 2, LLC each operate a gym in Ohio. Mt. Hawley Insurance Company is incorporated in Delaware and its principal place of business is Peoria, Illinois. Snap Fitness has about 800 franchises total. As franchisees, the Plaintiffs are required to participate in Snap's insurance plan. Mt. Hawley insures all Snap franchises under a single "all risk" policy. The policy provided includes business income coverage, extra expense coverage, civil authority coverage, and so-called "sue and labor" coverage. The business income section of the policy states: "We will pay for the actual loss of 'earnings' you sustain due to the necessary suspension of your 'operations' during the 'period of restoration.' The suspension must be caused by direct physical loss of or damage to property at the location(s) scheduled in this policy." The policy covers up to 12 months of lost income. Mt. Hawley also agreed to "pay your reasonable 'extra expense' necessary to avoid or minimize the suspension of business and to continue 'operations.'" In addition, the policy covers against certain losses that were the product of government decree. The policy also states that the insured will "take all reasonable steps to protect the property at the scheduled location(s) from further damage" and "keep a record of your expenses," the Plaintiffs describe the expenses associated with this requirement as "sue and labor" coverage. Notably, the policy does not contain an explicit exclusion of losses caused by viruses or communicable diseases, a relatively common provision. On March 16, 2020, in response to the growing COVID-19 pandemic, the governor of New Jersey ordered that all gyms close that evening. The next day, the Ohio Department of Health ordered the closure of all non-essential businesses, including gyms, by March 22. In response to the orders and the pandemic, the Plaintiffs closed their gyms. On May 26, gyms in Ohio were permitted to reopen, albeit with significant safety restrictions including limited capacity. JA Fitness 1 and 2 reopened after having been closed for roughly two months, although, consistent with the state rules, they operated at limited capacity. Months later, on Sept. 1, 2020, gyms were permitted to reopen in New Jersey at 25% capacity. Byberry reopened that day. In response to the pandemic and government requirements, all the Plaintiffs made significant changes to their gyms. For example, they reduced the amount of equipment to allow for better distancing, installed plexiglass at the front desk, removed furniture from the waiting room, limited the use of group exercise rooms, and hired more staff for cleaning, to pick a few examples. Recently, an employee who works at both JA Fitness locations tested positive for COVID-19. Similarly, a member of the Byberry gym was diagnosed with the disease. In response to the incidents, the gyms underwent costly and time-consuming "deep cleanings." On April 1 and April 6, 2020, Mt. Hawley received claims for loss of income from JA Fitness 1 and 2 and Byberry, respectively. In May of that year, Mt. Hawley sent letters to the franchisees declining to cover the lost income. The Plaintiffs then filed a class-action suit in this Court, seeking damages for breach of contract and a declaratory judgment that the Plaintiffs' losses arising from the closure orders and the COVID-19 pandemic are covered by the insurance policy. The Defendants have moved to dismiss the Complaint for failing to state a claim. A. The Plaintiffs' Claims for Business Income Fail The insurance policy at issue in this case covers lost business income "caused by direct physical loss of or damage to property." Byberry and JA advance two grounds for their business income and extra expense claims. They argue that the state-mandated shutdowns created a "direct physical loss" of their property. And they argue that COVID-19 physically contaminated their gyms, damaging their property. District Judge Mary M. Rowland finds that both theories fail. She opines, among other things, that permitting recovery based on the states' shutdown orders would effectively eliminate the word "physical" from the contract. And while the plaintiffs did physically alter their property in response to the orders--installing plexiglass among other changes--such measures do not qualify as a physical loss. The state orders cannot serve as a basis for recovery under the business income provision, Judge Rowland holds. Even if COVID-19 contamination can, the allegations here are insufficient to state a claim. As a result, the Plaintiffs' claim for violations of the business income and extra expense provisions are dismissed without prejudice. B. Civil Authority Coverage Does Not Apply The Plaintiffs also say that their lost business income is covered by the policy's civil authority coverage. The Plaintiffs argue that the state lockdown orders qualify as an "action of civil authority" leading to coverage. But the Plaintiffs do not identify any surrounding properties that were physically damaged and do not establish that that damage led to the state-wide orders, Judge Rowland holds. Instead, the Complaint notes that the New Jersey closure order was "part of the State's mitigation strategy to combat COVID-19 and reduce the rate of community spread." Hence, the Plaintiffs' civil authority claim is dismissed without prejudice. C. The Sue and Labor Claims Also Fail Finally, the Plaintiffs assert a "sue and labor" claim against Mt. Hawley. Sue and labor covers the expenses incurred when the insured take all reasonable steps to protect the property at the scheduled locations from further damage and keep a record of the insured's expenses. Both parties agree, however, that this provision only comes into issue when a direct physical loss of or damage to property has been established. Judge Rowland points out that as described, the Plaintiffs have not alleged a direct physical loss of or damage to their covered property. The sue and labor claim is, thus, dismissed without prejudice. Conclusion For the stated reasons, Mt. Hawley's Motion to Dismiss is granted. The Plaintiffs' claims are dismissed without prejudice. While the Court believes amending the complaint would be futile, it will allow the Plaintiffs one opportunity to amend. The Plaintiffs have until Aug. 9, 2021, to file an amended complaint. If the Plaintiffs do not do so, this dismissal will convert automatically to a dismissal with prejudice and the Court will enter judgment. A full-text copy of the Court's Memorandum Opinion and Order dated July 19, 2021, is available at https://tinyurl.com/f27k4zhm from Leagle.com. NAGOYA INC: Jiang Seeks Conditional Certification of Collective --------------------------------------------------------------- In the class action lawsuit captioned as Lichun Jiang, on his own behalf and on behalf of others similarly situated v. NAGOYA INC, NEW NAGOYA, LLC, NEW NAGOYA, INC d/b/a NAGOYA SUSHI & HIBACHI, and Wei Lin, Case No. 3:21-cv-00121-KHJ-MTP (S.D. Miss.), the Plaintiff asks the Court to enter an order: 1. conditionally certifying the proposed Collective pursuant to 29 U.S.C. section 216(b); and 2. directing the Defendant New Nagoya, Inc d/b/a Nagoya Sushi & Hibachi to produce a computer-readable list of the names, last known mailing addresses, last known telephone numbers, last known email addresses, and dates of work for all Collective Members, and the Social Security numbers of those Collective Members whose notices are returned undeliverable. Nagoya is a restaurants company based out of 278 North Ave, Westfield, New Jersey. A copy of the Plaintiff's motion to certify class dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3rDArY4 at no extra charge.[CC] The Plaintiff is represented by: Jiajing Fan, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Ave, Suite 10G Flushing, NY 11354 Telepgone: (718) 353-8588 E-mail: jfan@hanglaw.com NATIONAL CREDIT: Portnoy Bid to Amend Complaint Nixed w/o Prejudice ------------------------------------------------------------------- In the class action lawsuit captioned as ALYSSA PORTNOY, et al., v. NATIONAL CREDIT SYSTEMS, INC., et al., Case No. 1:17-cv-00834-MRB (S.D. Ohio), the Hon. Judge Michael R. Barrett entered an order that: 1. the Plaintiffs' Motions to Amend the Complaint, for an Order Prohibiting NCS from Transferring Business Assets, and for Sanctions are each denied without prejudice; 2. NCS's Motion for Protective Order is dismissed as moot in light of the parties' representations to the Court at the July 9, 2021 discovery conference, i.e., that they will to submit an agreed protective order; 3. the Plaintiffs' Motion for a 30-Day Continuance to Disclose Expert Witnesses and Reports is granted , and the Court will discuss the calendar in this matter with the parties at the next telephone status conference which the Court will schedule shortly; and 4. NCS's request for an award of attorney's fees is denied. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3ye3UdD at no extra charge.[CC] NATURAL THOUGHTS: Agrees Not to Seek Indemnification From Admiral ----------------------------------------------------------------- Law360 reports that Admiral Insurance Co. told a Texas federal court it has settled a coverage dispute with massage oil maker Natural Thoughts Inc. related to a proposed products liability class action in Houston, saying the oil maker has agreed not to seek indemnification from Admiral in the underlying suit. [GN] NCAA: Weed Seeks Damages Over Football-linked Health Issues ----------------------------------------------------------- William Weed, III, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 21-cv-02037 (S.D. Ind., July 15, 2021), seeks economic, monetary, actual, consequential, compensatory, and punitive damages, past, present and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings, litigation and attorney fees, prejudgment and post-judgment interest, injunctive and/or declaratory relief and such other and further relief resulting from negligence, fraudulent concealment, breach of express contract, breach of implied contract, breach of third-party express contract and unjust enrichment. Weed played football at Puget Sound in 1999, as a linebacker. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Weed now suffers from issues including, but not limited to, impaired memory, impaired attention, executive dysfunction, impulsivity, depression, suicidality, anxiety, fearfulness, irritability, motor impairments and balance issues. NCAA is an unincorporated association with its principal office located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics. Weed alleges NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries and sub-concussive injuries that resulted from playing college football, but did nothing.[BN] Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Tel: (312) 589-6370 Fax: (312) 589-6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Tel: (415) 212-9300 Fax: (415) 373-9435 Email: rbalabanian@edelson.com NETWORK TRANSPORT: Messer Labor Suit Seeks Unpaid Overtime Pay -------------------------------------------------------------- Clint Messer, individually and on behalf of all others similarly situated, Plaintiff, v. Network Transport LLC and American Logistics, Inc., Defendants, Case No. 21-cv-00162 (E.D. Tenn., July 16, 2021), seeks monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorney's fees, as a result of failing to pay overtime compensation for the hours in excess of 40 hours in a single week under the Fair Labor Standards Act. Plaintiff began working for American Logistics, Inc. on March 14, 2019, as a National Account Executive/Freight Broker for their Niagra Water Group division. In early 2020, Network Transport assumed his employment after Network Transport acquired certain assets of American Logistics. Network Transport, LLC is a nationwide shipping broker with offices located in Chattanooga, Tennessee, Salt Lake City, Utah, and Dallas, Texas. The complaint alleges that Clint Messer is an Account Executive/Freight Broker and was misclassified as an exempt employee. He regularly works in excess of 40 hours in a workweek without receiving overtime compensation at a rate of one and one-half times his regular rate of pay for all hours worked in excess of forty in a workweek, says the complaint. [BN] Plaintiff is represented by: Frank P. Pinchak, Esq. H. Eric Burnette, Esq. BURNETTE, DOBSON & PINCHAK 711 Cherry Street Chattanooga, TN 37402 Phone: (423) 266-2121 Fax: (423) 266-3324 Email: fpinchak@bdplawfirm.com eburnette@bdplawfirm.com NEW PENN: Mattson Appeals Class Cert. Bid Denial to 9th Cir. ------------------------------------------------------------ Plaintiff Erik Mattson filed an appeal from a court ruling entered in the lawsuit entitled Erik Mattson v. New Penn Financial, LLC, Case No. 3:18-cv-00990-YY, in the U.S. District Court for the District of Oregon, Portland. The Plaintiff brings claims under the Telephone Consumer Protection Act of 1991, 47 U.S.C. Section 227. He accused New Penn Financial of calling his cellphone while it was registered on the National Do Not Call Registry. New Penn filed for summary judgment and the court denied the motion, finding that a genuine issue of material fact existed regarding whether Mattson's number was a residential or business phone number. After losing the motion, New Penn rallied and filed a motion to deny class certification, arguing that the uncertainty about the use of Mattson's phone number made him an atypical and inadequate class representative. Magistrate Judge Youlee Yim You issued a Findings and Recommendation on March 8, 2021, in which she recommends that the Court grant Defendant's Motion to Deny Class Certification. On July 9, 2021, the Court adopted in part Magistrate Judge You's Findings and Recommendation, granting Defendant's motion to deny class certification. Mr. Mattson now seeks a review of the Order pursuant to the Federal Rule of Civil Procedure 23(f), denying his motion for class certification. The appellate case is captioned as Erik Mattson v. New Penn Financial, LLC, Case No. 21-80089, in the United States Court of Appeals for the Ninth Circuit, filed on July 23, 2021.[BN] Plaintiff-Petitioner ERIK MATTSON, Individually and on behalf of all others similarly situated, is represented by: John P. Kristensen, Esq. KRISTENSEN LLP 12540 Beatrice Street, Suite 200 Los Angeles, CA 90066 Telephone: (310) 507-7924 E-mail: john@kristensenlaw.com - and - Leigh Skye Montgomery, Esq. ELLZEY & ASSOCIATES, PLLC 1105 Milford Street Houston, TX 77006 Telephone: (713) 554-0092 Defendant-Respondent NEW PENN FINANCIAL, LLC is represented by: Jeffrey G. Bradford, Esq. TONKON TORP, LLP 888 S.W. Fifth Avenue 1600 Pioneer Tower Portland, OR 97204-2099 Telephone: (503) 802-5724 E-mail: jeffrey.bradford@tonkon.com - and - Lauri Anne Mazzuchetti, Esq. James B. Saylor, Esq. KELLEY DRYE & WARREN LLP 3 World Trade Center 175 Greenwich Street New York, NY 10007 Telephone: (212) 808-7800 E-mail: lmazzuchetti@kelleydrye.com jsaylor@kelleydrye.com NEW YORK CITY: Seeks Aug. 9 Extension to Oppose Class Cert. Bid --------------------------------------------------------------- In the class action lawsuit captioned as McQueen et ano. v. City of New York et al., Case No. 1:20-cv-04879-BMC (E.D.N.Y.), the Defendants ask the Court to enter an order that the deadline for them to file their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c) and their opposition to Plaintiffs' motion for class certification be extended by two weeks and that the remaining dates in the current briefing schedule be concomitantly extended. The Plaintiffs allege that there is a class of individuals whose rights have been violated by the Defendants' alleged failure to issue certain individuals a Desk Appearance Ticket when required to do so by law. Defendants dispute these allegations and will argue in their forthcoming motion to dismiss that Plaintiffs fail to state a claim and are not proper class representatives. The proposed modified briefing schedule would be as follows: -- Defendants to file their August 9, 2021 motion to dismiss and opposition -- The Plaintiffs to file their Sept. 1, 2021 opposition and reply -- The Defendants to file Sept. 15, 2021 their reply, if any A copy of the Defendants' motion dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3zKVH0L at no extra charge.[CC] The Defendants are represented by: Mark G. Toews, Esq. THE CITY OF NEW YORK LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-0871 Facsimile: (212) 356-2088 E-mail: mtoews@law.nyc.gov NEW YORK: Knight Appeals Dismissal of Suit v. MTA-NY to 2nd Cir. ---------------------------------------------------------------- Plaintiff Christine N. Knight filed an appeal from a court ruling entered in the lawsuit styled CHRISTINE N. KNIGHT, individually and on behalf of others similarly situated v. MTA-NEW YORK CITY TRANSIT AUTHORITY, Case No. 1:19-cv-09960, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit seeks to address the Defendant's failure to pay overtime wage after 40 hours of work in a week, as required by the Fair Labor Standards Act. The Plaintiff is an employee of NYCT since 1999, and currently works as an Associate Transit Management Analyst (Material Forecaster/Project Coordinator). The Plaintiff seeks declaratory relief, lost wages, exemplary relief, and all other relief allowed under Federal and State law. Ms. Knight is seeking a review of the Court's Memorandum and Opinion and Judgment dated June 15, 2021, granting Defendant's motion to dismiss Plaintiff's amended complaint. The appellate case is captioned as Knight v. MTA-New York City Transit Authority, Case No. 21-1700, in the United States Court of Appeals for the Second Circuit, filed on July 13, 2021.[BN] Plaintiff-Appellant Christine N. Knight, individually and on behalf of others similarly situated, is represented by: Laine Armstrong, Esq. Arthur Zachary Schwartz, Esq. ADVOCATES FOR JUSTICE, CHARTERED ATTORNEYS 225 Broadway New York, NY 10007 Telephone: (212) 285-1400 E-mail: laine@advocatesny.com aschwartz@advocatesny.com Defendant-Appellee MTA-New York City Transit Authority is represented by: Joshua Fox, Esq. PROSKAUER ROSE LLP 11 Times Square New York, NY 10036 Telephone: (212) 969-3507 E-mail: jfox@proskauer.com NEWMONT CORP: Shareholder Class Suit in Ontario Underway -------------------------------------------------------- Newmont Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action pending before the Ontario Superior Court of Justice. On October 28, 2016 and February 14, 2017, separate proposed class actions were commenced in the Ontario Superior Court of Justice pursuant to the Class Proceedings Act (Ontario) against the Company and certain of its current and former officers. Both statement of claims alleged common law negligent misrepresentation in Goldcorp, Inc.'s public disclosure concerning the Peñasquito mine and also pleaded an intention to seek leave from the Court to proceed with an allegation of statutory misrepresentation pursuant to the secondary market civil liability provisions under the Securities Act (Ontario). By a consent order, the latter lawsuit proceeded, and the former action has been stayed. The active lawsuit purports to be brought on behalf of persons who acquired Goldcorp Inc.'s securities in the secondary market during an alleged class period from October 30, 2014 to August 23, 2016. An amended complaint has been filed in the active lawsuit, which removes the individual defendants, and requests leave of the Court to pursue only the statutory cause of action. The Company intends to vigorously defend this matter, but cannot reasonably predict the outcome. No further updates were provided in the Company's SEC report. Newmont Corporation engages in the production and exploration of gold, copper, silver, zinc, and lead. The Company has operations and/or assets in the United States, Canada, Mexico, Dominican Republic, Peru, Suriname, Argentina, Chile, Australia, and Ghana. Newmont Corporation was founded in 1916 and is headquartered in Greenwood Village, Colorado. NIELSEN HOLDINGS: Must Oppose Class Cert. Bid by October 12 ----------------------------------------------------------- In the class action lawsuit RE NIELSEN HOLDINGS PLC SECURITIES LITIGATION, Case No. 1:18-cv-07143-JMF (S.D.N.Y.), the Hon. Judge Jesse M. Furman entered an order adopting the parties' proposed schedule, except that, unless and until the Court orders otherwise, the Court will decide Plaintiffs' pending motion for class certification without a hearing. The pretrial conference scheduled for December 21, 2021, remains in effect. The parties stipulated and agreed the following: 1. By October 12, 2021, Defendants will file an opposition to Plaintiffs' Motion for Class Certification. 2. Discovery related to class certification shall be completed by November 22, 2021. 3. By December 13, 2021, Plaintiffs will file their reply in support of their Motion for Class Certification. A copy of the Court's order dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3l8nGDH at no extra charge.[CC] The Attorneys for Lead Plaintiff Public Employees' Retirement System of Mississippi and Lead Counsel for the Proposed Class: Eric J. Belfi, Esq. Carol C. Villegas, Esq. Christine M. Fox, Esq. Jake Bissell-Linsk, Esq. Charles Farrell, Esq. LABATON SUCHAROW LLP 140 Broadway, 34th Floor New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: ebelfi@labaton.com cvillegas@labaton.com cfox@labaton.com jbissell-linsk@labaton.com cfarrell@labaton.com The Attorneys for Additionally Named Plaintiff Monroe County Employees' Retirement System, and Additional Counsel for the Proposed Class,are: Shawn A. Williams, Esq. Christopher P. Seefer, Esq. Patton L. Johnson, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 288-4545 Facsimile: (415) 288-4534 E-mail: shawnw@rgrdlaw.com chriss@rgrdlaw.com pjohnson@rgrdlaw.com The Attorneys for the Defendants Nielsen Holdings plc., Dwight Mitchell Barns, Kelly Abcarian, and Jamere Jackson, are: Paul C. Curnin, Esq. Craig S. Waldman, Esq. Tyler A. Anger, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: pcurnin@stblaw.com cwaldman@stblaw.com tyler.anger@stblaw.com NORTHSTAR LOCATION: Keevan FCRA Suit Removed to N.D. Illinois ------------------------------------------------------------- The case styled as Anthony Keevan, individually and on behalf of all others similarly situated v. Northstar Location Services, LLC, Case No. 2021CH02890 was removed from the Cook County Illinois Circuit Court, Chancery Division to the U.S. District Court for the Northern District of Illinois on July 28, 2021. The District Court Clerk assigned Case No. 1:21-cv-04020 to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. The Northstar Companies -- https://www.gotonls.com/ -- provides a full-service receivables debt collection solution.[BN] The Plaintiff appears pro se. ODA INC: Discriminates Blind People, Fischler ADA Suit Says ----------------------------------------------------------- BRIAN FISCHLER, Individually and on behalf of all other persons similarly situated v. ODA INC., Case 1:21-cv-04079 (E.D.N.Y., July 20, 2021) is a civil rights action against Defendant for its failure to design, construct, maintain, and operate its website, www.oda.co, to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Plaintiff asserts claims under the Americans With Disabilities Act, New York State Human Rights Law, and New York City Human Rights Law. According to the complaint, Plaintiff cannot use a computer without the assistance of screen-reading software. He is, however, a proficient screen-reader user and uses it to access the Internet. He has visited the Website on separate occasions using screen-reading software. During his visits to the website, the last occurring on or about July 13, 2021, Plaintiff encountered multiple access barriers that denied him the enjoyment of the facilities, goods, and services of the website, as well as to the goods and services of Defendant's entertainment subscription services and retail operations. Because of these barriers, he was unable to be substantially equal to sighted individuals. Because simple compliance with the Web Content Accessibility Guidelines would provide Plaintiff and other visually-impaired consumers with equal access to the website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, adds the complaint. Defendant Oda, Inc. is a foreign business corporation that is organized under Delaware law and is authorized to do business in the State of New York. [BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10017-6705 Tel: 212-392-4772 E-mail: doug@lipskylowe.com chris@lipskylowe.com PARETEUM CORP: Loskot Putative Class Suit Ongoing ------------------------------------------------- Pareteum Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended March 31, 2021, that the company continues to defend a putative class action suit initiated by Douglas Loskot. Douglas Loskot v. Pareteum Corporation, et al., is a putative class action pending in the Superior Court of California, County of San Mateo. It was filed on May 29, 2020 on behalf of all former stockholders of iPass Inc. who received shares of the Company's common stock pursuant to a February 12, 2019 Offer to Exchange. The defendants are the Company, Robert H. Turner, Edward O'Donnell, Victor Bozzo, Yves van Sante, Robert Lippert and Luis Jimenez-Tunon. The complaint alleges that the defendants caused the Company to issue materially false or misleading statements in SEC filings submitted in connection with the Offer to Exchange in violation of Sections 11 and 15 of the Securities Act. Pareteum Corporation formerly known as Elephant Talk Communications, Inc., is an international provider of business software and services to the telecommunications and financial services industry. Pareteum Corporation is based in New York, New York. PARETEUM CORP: Putative Securities Class Suit in New York Underway ------------------------------------------------------------------ Pareteum Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended March 31, 2021, that the company continues to defend a putative securities class action suit entitled, In re Pareteum Securities Litigation. In re Pareteum Securities Litigation is the consolidation of various putative class actions that were filed in the United States District Court for the Southern District of New York. The cases were assigned to Judge Alvin Hellerstein, who consolidated the actions on January 10, 2020 and named the Pareteum Shareholder Investor Group as the Lead Plaintiff. The Lead Plaintiff is asserting claims on behalf of purported purchasers and/or acquirers of Company securities between December 14, 2017 and October 21, 2019. The defendants are the Company, Robert H. Turner, Edward O'Donnell, Victor Bozzo, Denis McCarthy, Dawson James Securities Inc., and Squar Milner LLP. The Lead Plaintiff alleges that Defendants caused the Company to issue certain materially false or misleading statements in SEC filings and other public pronouncements in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Sections 11, 12 and 15 of the Securities Act. The Lead Plaintiff seeks to recover compensatory damages with interest for itself and the other class members for all damages sustained as a result of Defendants' alleged wrongdoing and reasonable costs and attorney's fees incurred in the case. Pareteum Corporation formerly known as Elephant Talk Communications, Inc., is an international provider of business software and services to the telecommunications and financial services industry. Pareteum Corporation is based in New York, New York. PENNSYLVANIA: Court Refuses to Dismiss Jennings v. Wolf and DHS --------------------------------------------------------------- The U.S. District Court for the Middle District of Pennsylvania deny the Defendants' motion to dismiss the lawsuit entitled RUSSEL "JOEY" JENNINGS, RINALDO SCRUCI, ROBERT B. CARSON, LAUREN LOTZI, BETH LAMBO, MARIA KASHATUS, DAVID NAULTY, MAUREEN JORDA, JANINE WINSOCK, CYNTHIA MARTIN, TERRY D. HETRICK, SHARON MCCABE and VIOLA "VIANNE" CAYE, Plaintiffs v. TOM WOLF, TERESA D. MILLER, KRISTIN AHRENS, SUE RODGERS, MARK J. GEORGETTI, PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, PENNSYLVANIA OFFICE OF DEVELOPMENT PROGRAMS, POLK CENTER and WHITE HAVEN CENTER, Defendants, Case No. 3:20-0148 (M.D. Pa.). On Jan. 29, 2020, Russel Jennings, Rinaldo Scruci, Robert Carson, Lauren Lotzi, Beth Lambo, Maria Kashatus, David Naulty, Maureen Jorda, Janine Winsock, Cynthia Martin, Terry Hetrick, Sharon McCabe and Viola Caye, ("Plaintiffs"), all residents of Intermediate Care Facilities for Individuals with Intellectual Disabilities ("ICF/IID") in the state of Pennsylvania, by and through their guardians or substitute decision makers, filed a complaint in this District seeking equitable and injunctive relief on behalf of a prospective class. The complaint named as Defendants Pennsylvania Governor Tom Wolf, the Pennsylvania Department of Human Services ("DHS"), Secretary of the Pennsylvania DHS Teresa Miller, Pennsylvania DHS Office of Developmental Programs ("ODP"), Deputy Secretary of ODP Kristin Ahrens, ICF/IID Polk Center, Polk Center Facility Director Sue Rodgers, ICF/IID White Havens Center, and White Haven Facility Director Mark Georgetti. The complaint contained four separate claims seeking injunctive relief, including claims alleging violations of the Americans with Disabilities Act, 42 U.S.C. Section 12132; the Rehabilitation Act, 29 U.S.C. Section 794; various Medicaid federal statutes and regulations incorporated into Pennsylvania Law; and the United States Constitution, 42 U.S.C. Section 1983. On July 10, 2020, the Defendants filed a motion to dismiss the Plaintiffs' complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). Background The Plaintiffs are individuals suffering from severe intellectual disabilities and other ailments, and are residents of one of two ICF/IIDs in Pennsylvania, Polk Center or White Haven Center. These two centers are operated by the Pennsylvania Department of Human Services in conjunction with the Center for Medicare and Medicaid Services ("CMS"), and offer various resources and programs, including extensive personal care, health care services, ambulation assistance, and significant behavioral support. On Aug. 14, 2019, Defendant DHS, through its Secretary, Defendant Miller, announced that it would be closing both the Polk Center and the White Haven Center, and projected that the process of closing these facilities would take roughly three years. According to the Plaintiffs, before this point, all residents of the Polk Center and the White Haven Center were evaluated by their treating professionals and determined to be in need of ICF/IID services, and the best setting for the Plaintiffs to receive those services was at PC or WHC as determined by the professional judgment of these professionals. As a result, the Plaintiffs claim that the Defendants' efforts to relocate the Plaintiffs to other facilities would be improper as the Polk and White Haven Centers provide the least restrictive and most appropriate setting for their needs. Therefore, the Plaintiffs seek injunctive and equitable relief to ensure that any potential relocation not result in the Plaintiffs receiving treatment and services in a setting more restrictive to their rights than the current location or failing to meet the accepted professional standards inequal to the care they currently received, and that the Plaintiffs and their treating professionals maintain a certain level of control over placement in a new facility while ensuring that staffing levels are maintained and independent treatment plans are followed. Discussion The Plaintiffs raise four separate grounds upon which they claim they are entitled to equitable and injunctive relief. These claims include violations of (1) the Americans with Disabilities Act ("ADA"), (2) the Rehabilitation Act ("RA"), (3) the Medicaid Act, and (4) Constitutional Due Process. A. Claim Preclusion Under Benjamin v. Dept. of Public Welfare As a preliminary matter, the Defendants contend that the current litigation is precluded by the settlement agreement in Benjamin v. Department of Public Welfare, 1:09-cv-01182-JEJ (M.D. Pa.). A review of the settlement in Benjamin indicates that the initial class action litigation was brought on behalf of individuals, who "currently or in the future will reside in one of Pennsylvania's state ICFs/ID" that "could reside in the community with appropriate supports and services" and "do not or would not oppose community placement," District Judge Malachy E. Mannion notes. Though the Plaintiffs do represent individuals currently residing in a State ICF/IID that may have qualified as members of the Benjamin class, the settlement itself merely provided the choice for class members to move to a community setting if they so desired, the Judge points out. In light of the terms of the agreement, if the Benjamin settlement was to hold sway on the present action, as the Defendants argue, it would, thus, seem that the Plaintiffs would maintain the ability to choose whether they would prefer either a community-based setting or an institutional setting, Judge Mannion holds. He adds that as the settlement agreement, however, seemingly terminated in June 2018 and the settlement does not reflect the same factual allegations or "waive any potential claims [of] a class member ... to challenge or object to a decision to close or attempt to close that state ICF/ID," the current litigation appears free from any preclusion. B. Americans With Disabilities Act Violation Title II of the Americans with Disabilities Act provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. In addition, the parties agree that the Plaintiffs' ADA claim is also governed by Olmstead v. L.C., 527 U.S. 581 (1999). Olmstead created a three-prong test that the Supreme Court used to determine when the ADA requires placement of persons with mental disabilities in community settings rather than in institutions. Judge Mannion states that it is unquestioned that the Plaintiffs are qualified individuals, who suffer from different forms of mental disabilities. It is also unquestioned by the parties that the State intends to close both the Polk and White Haven Centers, and that the Plaintiffs will be denied the benefits of the services, programs, or activities provided by these facilities. As the Defendants, thus, do not assert that the Plaintiffs failed to meet the basic requirements for an ADA claim, the Court will deny the Defendants' motion in this regard. As the Plaintiffs allege that a reasonable accommodation that would best reflect the most "integrated setting appropriate" for the Plaintiffs would be an institutionalized setting rather than a community-based setting, and that Defendants intend to deprive them of these accommodations, Plaintiffs have met their burden.3 Accordingly, Defendants' motion to dismiss Plaintiffs' claim under the ADA will be denied. C. Rehabilitation Act Violations Judge Mannion notes that it is well settled that the same standard governs both Rehabilitation Act and Americans with Disabilities Act violations, citing McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir. 1995). In regards to their claim under the ADA, Judge Mannion finds that the Plaintiffs sufficiently assert that the proposed class includes qualified individuals suffering from disabilities who face the denial of benefits of the services, programs, or activities of a public entity. In addition, it is clear that Pennsylvania's Medicaid program received federal financial assistance. As a result, the Defendants' motion to dismiss the Plaintiffs' RA claim will be denied. D. Medicaid Act and Regulatory Violations The Medicaid Act established a combined federal-state funding program for the purpose of providing medical assistance to eligible low-income persons. The Plaintiffs allege that the Commonwealth of Pennsylvania has voluntarily assumed certain obligations under federal law in return for federal funding under the Medical Assistance Program authorized by 42 U.S.C. Section 1396, et seq. The Plaintiffs argue that these obligations include: (a) choice of an ICF/IID institutional placement, subject to a hearing, under 42 U.S.C. Section 1396n and 42 CFR Section 441.302(d); (b) provision of ICF/IID services under 42 U.S.C. Sections 1396a(a)(10) and 1396d(a)(15); (c) competent evaluation for placement in an institutional ICF/IID facility under 42 CFR Section 483.440(b)(3); and (d) a continuous active treatment program as defined in 42 CFR Section 483.440(a)(1)." As the Plaintiffs allege that the Defendants violated these obligations by deciding to close the Polk and White Haven Centers and the Defendants do not claim the Plaintiffs failed to meet their burden, the Defendants' motion to dismiss the Plaintiffs' Medicaid Act and regulatory violations will be denied, Judge Mannion holds. E. Constitutional Due Process Violations The Plaintiffs raise a claim under 42 U.S.C. Section 1983 alleging a deprivation of their civil rights. Section 1983 authorizes redress for violations of constitutional rights. Regarding the constitutional-violation prong of Section 1983, the Plaintiffs claim a violation of the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving any person of life, liberty, or property, without due process of law. The Plaintiffs claim that the Defendants should know or have reason to know that placing the Plaintiffs in other settings, including non-ICF/IID settings, would substantially increase the Plaintiffs' likelihood of injury from abuse, neglect, error, lack of appropriate services, or other causes. The Defendants' alleged failure to provide such adequate safeguards to prevent such harm would thus arguably be a violation of the Plaintiffs' constitutional right not to be deprived of life or liberty without due process of law. The Defendants, in response, argue that any harm to the Plaintiffs resulting from discharge from the Polk or West Haven Centers would be prospective as their complaint is based on speculative harm that might occur. Such a determination, however, would be improper at this juncture and would best be reserved for a motion for summary judgment following further factual development, Judge Mannion opines. Therefore, the Defendants' motion to dismiss the Plaintiffs' due process claim will be denied. Conclusion For these reasons, the Court denies the Defendants' motion to dismiss. A full-text copy of the Court's Memorandum dated July 19, 2021, is available at https://tinyurl.com/y7s4f5wy from Leagle.com. PERRIGO COMPANY: Loses Bid for Summary Judgment in Securities Suit ------------------------------------------------------------------ District Judge Denise Cote of the U.S. District Court for the Southern District of New York issued an Opinion and Order granting the Plaintiffs' motion for summary judgment and denying the Defendants' motion for summary judgment in the lawsuit entitled IN RE PERRIGO COMPANY PLC SECURITIES LITIGATION, Case No. 19cv70 (DLC) (S.D.N.Y.). Investors in Perrigo bring the class action against Perrigo, its CEO, Murray S. Kessler, and its former CFO, Ronald L. Winowiecki, for securities fraud. The parties have cross-moved for summary judgment. Background In December 2013, Perrigo purchased the Ireland-based company Elan Corporation PLC, which allowed Perrigo to establish its tax domicile in Ireland. Shortly before the acquisition, Elan had sold its stake in the multiple sclerosis drug Tysabri to Biogen Idec Inc. for an up-front payment of over $3.2 billion, plus contingent royalty payments. In its tax returns, Perrigo treated over $6 billion in proceeds from the Tysabri sale as "trading income," subject to a $12.5% tax rate under Irish law. Capital gains, by contrast, are subject to a 33% tax rate. Irish Office of Revenue Commissioners' Initial Inquiry On Oct. 19, 2016, Irish Office of Revenue Commissioners informed Perrigo that it was reviewing its December 2012 tax computation for the Elan transaction and, in particular, certain amortization deductions Perrigo had taken against intellectual property ("IP") assets. On Nov. 10, Irish Revenue asked Perrigo to "provide further details/support as to why the amortization charge in relation to intangible assets has not been added back in the company's tax computation. On what basis is it considered to be an expense that is revenue rather than capital in nature? Capital expenditure is not deductible as a trading expense. In your reply, please reference relevant case law/legislation in support of the position the company has taken." Around this time, Perrigo was preparing to sell off its remaining rights to the Tysabri royalty stream, the proceeds of which Perrigo intended to treat as subject to the 12.5% trading income rate. Perrigo's VP of Tax immediately understood the implications of Irish Revenue's November 10 inquiry. On November 11, he expressed his concern to Perrigo's International Director of Tax and International Tax Manager that the Irish Revenue inquiry "could turn the tables on a 33% tax rate vs 12.5%." The Formal Audit On Nov. 20, 2017, Irish Revenue informed Perrigo that it had commenced a formal audit of its treatment and disposal of IP during 2012 and 2013. On Nov. 29, Irish Revenue sent Perrigo an outline of items that detailed the areas the auditors would like to review on the opening day of the audit. The initial audit meeting occurred on Jan. 29, 2018. On Aug. 13, Irish Revenue informed Perrigo that it had carried out a review of the documentation that Perrigo provided to Irish Revenue following the initial audit meeting and had not arrived at a definitive position in relation to Perrigo's treatment of Intellectual Property. Irish Revenue sought any further available documentation or analysis supporting Perrigo's treatment of IP as trading income. Perrigo submitted a written response on September 27. The Audit Findings Letter On Oct. 30, 2018, Irish Revenue sent the findings of its audit ("Audit Findings Letter" or "Letter") to Perrigo. The Letter went on to note that the Tysabri transaction had been treated as a Case I receipt--that is, as trading income subject to the 12.5% tax rate--on Perrigo's 2013 tax return. The Letter summarized Perrigo's arguments in favor of treating the proceeds as trading income and Irish Revenue's reasons for rejecting those arguments, concluding that Perrigo should have applied a capital treatment to its IP and to the Tysabri IP in particular. The Letter described this in various places as a revised treatment or proposed treatment. The Letter provided detailed calculations of how capital treatment would change Perrigo's tax filings and found that Perrigo had a tax liability of EUR1,636,047,646, or approximately $1.9 billion. One calculation included in the Letter was the portion of the Tysabri development costs that Perrigo could subtract from the sale proceeds for the purpose of determining the "chargeable gain" taxable at the 33% rate. The Letter noted that, as outlined by Perrigo's then International Director of Tax at the initial audit meeting of Jan. 29, 2018, Perrigo and Biogen shared development costs on Tysabri of $851m between Aug. 15, 2000, to the end of 2006, and no significant work was carried out on Tysabri post 2006. The Letter concluded by again noting that if Perrigo disagreed with the findings, it should inform Irish Revenue and provide the basis for its position. At the time it received the Audit Findings Letter, Perrigo had approximately $400 million in cash on hand and $4.8 billion in annual revenues. The EUR1.6 billion figure in the letter amounted to 40% of Perrigo's revenues for 2018, over four times the amount of Perrigo's available cash as of Sept. 29, 2018, and approximately one-third of Perrigo's total Shareholders' equity as of Sept. 30, 2018. The claims in this lawsuit now hinge on the adequacy of Perrigo's disclosure of Irish Revenue's Audit Findings Letter in its Nov. 8, 2018 Form 10-Q. The Notice of Amended Assessment On Nov. 29, 2018, Irish Revenue sent Perrigo a "Notice of Amended Assessment," which indicated that under the amended assessment Perrigo had a "balance payable" of EUR1,636,047,645.88--the same amount disclosed in the Audit Findings Letter. On Dec. 20, Perrigo filed a Form 8-K disclosing its receipt of the Notice of Amended Assessment from Irish Revenue and the EUR1.6 billion tax liability. The Form 8-K also described the background of the Tysabri sale and the content of the Audit Findings Letter. The Form 8-K asserted that Perrigo strongly disagreed with Irish Revenue's assessment and would pursue all available administrative and judicial avenues" available to appeal the assessment. Perrigo's stock price closed at $52.36 on Dec. 20. On Dec. 21, Perrigo's stock price opened at $44.14 and closed at $37.03. Procedural History The original complaint in this action was filed on Jan. 3, 2019. On March 26, the City of Boca Raton General Employees' Pension Plan and Palm Bay Police and Firefighters' Pension Fund were appointed as lead plaintiffs, see The Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. Section 78u-4(a)(3). The lead plaintiffs filed an amended complaint on April 12, and a second amended complaint ("SAC") on May 31. The SAC alleged violations of Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b); 15 U.S.C. Section 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5. An Opinion of Jan. 23, 2020, granted in part the Defendants' motion to dismiss, see In re Perrigo Co. PLC Sec. Litig., 435 F.Supp.3d 571 (S.D.N.Y. 2020). The Plaintiffs' claims arising from Perrigo's statements made prior to the filing of the November 2018 Form 10-Q were dismissed, as were the claims against one of the individual defendants. The plaintiffs' claim that the November 2018 Form 10-Q was misleading was allowed to proceed. A class was certified in September. The class action notice was distributed on Jan. 19, 2021. Discovery was completed on March 5. On March 31, the Plaintiffs filed a partial motion for summary judgment on the elements of falsity, materiality, and loss causation, and the defendants filed motions for summary judgment. The parties also cross-moved to exclude each parties' accounting experts, and the Defendants moved to exclude the Plaintiffs' loss causation expert. The motions became fully submitted on May 25. An Opinion of July 11, 2021, granted the Plaintiffs' motion to exclude the Defendants' accounting expert and denied the Defendants' cross-motion to exclude the Plaintiffs' accounting expert ("July Opinion"). The July Opinion held that Accounting Standards Codification ("ASC") 450 governs the adequacy of the disclosures in the November 2018 Form 10-Q. An Order of July 13 denied the parties' motions for summary judgment with respect to loss causation and denied the Defendants' motion to exclude the Plaintiffs' loss causation expert. Falsity The Plaintiffs contend that Perrigo's exclusion of the EUR1.6 billion figure set out in the Audit Findings Letter from the November 2018 Form 10-Q did not comply with ASC 450 and is, therefore, presumptively misleading. They are correct, Judge Cote holds. Judge Cote opines that, once it received the Audit Findings Letter, Perrigo had a duty to disclose the loss contingency if the chance of occurrence was more than remote but less than likely, citing ASC-450-20-20. She points out that the Plaintiffs have demonstrated that the chance the loss contingency would be incurred was, at the very least, more than remote. She adds, among other things, that there is no reasonable question of fact that, after receipt of the Audit Findings Letter, an estimate of Perrigo's "possible loss" was reasonably calculable. As a result, the omission of the EUR1.6 billion is "presumptively misleading or inaccurate." The Defendants do not argue that the disclosure in the November 2018 Form 10-Q complied with ASC 450. Instead, they argue that ASC 740 governs their disclosure requirements. Accordingly, summary judgment is granted to the Plaintiffs on the issue of falsity. Confirming Perrigo's failure to comply with its duties under the securities laws, the November 2018 Form 10-Q contained another related misleading statement, Judge Cote notes. The November 2018 Form 10-Q states: "We disagree with the Irish Revenue position as asserted in the audit finding letter and intend to contest it, and therefore the amount of adjustments, if any, that may ultimately be asserted by the Irish Revenue cannot be quantified at this stage. The amount of any future assessment could be material." Viewing this statement in "context and manner of presentation," Perrigo misled investors about whether it could quantify the amount of adjustments Irish Revenue would ultimately assert, Judge Cote observes. The Audit Findings Letter set out Irish Revenue's detailed calculation of Perrigo's tax liability after a year-long audit. Judge Cote points out that it was misleading for Perrigo to state that it could not quantify the amount Irish Revenue may ultimately assert. The in-depth calculations in the Audit Findings Letter provided that exact quantification, even if it was not a final number. Materiality For an undisclosed fact to be material, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available, Judge Cote notes, citing In re Synchrony Fin. Sec. Litig., 988 F.3d 170 (2d Cir. 2021). The Plaintiffs contend that there is no question of fact that a tax liability of EUR1.6 billion was material to investors. Judge Cote holds that the Plaintiffs are correct, and the Defendants have not argued to the contrary. Judge Cote holds that the sheer size of the calculated tax liability in the Audit Findings Letter demonstrates that it would be material to a reasonable investor. Reasonable minds cannot differ that the omission of such a large number in relation to Perrigo's revenues and available cash would be material. Additionally, Perrigo has conceded materiality, Judge Cote notes. The Defendants argue in opposition that materiality is a question of fact that should not be decided on summary judgment. The Defendants also argue that prior to the issuance of the Notice of Assessment, "it was not a foregone conclusion that any assessment would be issued and the amount of any potential assessment was unknown." As a result, they argue, the EUR1.6 billion figure in the Audit Findings Letter was not material information. This argument is not about whether a reasonable investor would find the EUR1.6 billion figure in the Audit Findings Letter material, Judge Cote holds. She insists that this argument goes to Perrigo's duty to disclose, not the materiality of the disclosure. Conclusion The Plaintiffs' March 31, 2021 partial motion for summary judgment on the elements of falsity and materiality is granted. The Defendants' March 31, 2021 motion for summary judgment is denied. Whether the Defendants had the requisite scienter is a question of fact to be determined by a jury. A full-text copy of the Court's Opinion and Order dated July 15, 2021, is available at https://tinyurl.com/hdefd6jy from Leagle.com. Saxena White P.A., Steven B. Singer -- ssinger@saxenawhite.com -- Kyla Grant -- kgrant@saxenawhite.com -- Joshua H. Saltzman -- jsaltzman@saxenawhite.com -- in White Plains, New York, Maya Saxena -- msaxena@saxenawhite.com -- Joseph E. White, III -- jwhite@saxenawhite.com -- Lester R. Hooker -- lhooker@saxenawhite.com -- in Boca Raton, Florida; and Klausner Kaufman Jensen & Levinson, Robert D. Klausner -- bob@robertdklausner.com -- in Plantation, Florida, for the Plaintiffs. Fried, Frank, Harris, Shriver & Jacobson LLP, Samuel P. Groner -- samuel.groner@friedfrank.com -- Samuel M. Light -- samuel.light@friedfrank.com -- in New York City, James D. Wareham -- james.wareham@friedfrank.com -- James E. Anklam -- james.anklam@friedfrank.com -- Katherine St. Romain -- kate.st.romain@friedfrank.com -- in Washington, D.C., for Defendant Perrigo Company PLC. Simpson Thacher & Bartlett LLP, Amy Dawson -- amy.dawson@stblaw.com -- Joseph M. McLaughlin -- jmclaughlin@stblaw.com -- Shannon K. McGovern, in New York City, for Defendant Murray S. Kessler. Dechert LLP, Hector Gonzalez -- hector.gonzalez@dechert.com -- in New York City, Angelia Liu -- angela.liu@dechert.com -- in Chicago, Illinois, Carla Graff -- carla.graff@dechert.com -- Jeffrey Masters -- jeffrey.masters@dechert.com -- in Philadelphia, Pennsylvania, Tharuni Jayaraman -- tharuni.jayaraman@dechert.com -- in Washington, D.C., for Defendant Ronald Winowiecki. PHILIPS NORTH: Mitrovich Sues Over Defective Ventilators -------------------------------------------------------- Lisa Mitrovich, on behalf of herself and all others similarly situated, Plaintiff, v. Philips North America, LLC, Philips RS North America LLC (formerly Respironics, Inc.) and Koninklijke Philips Electronics N.V., Defendants, Case No. 21-cv-05793 (C.D. Cal., July 16, 2021), seeks injunctive and declaratory relief, compensatory, actual, statutory, consequential, punitive and/or any other form of damages, restitution, disgorgement and/or other equitable relief, costs of this action, including reasonable attorneys' fees, and, where applicable, expert fees, prejudgment and post judgment interest, award of such other and further relief resulting from breach of implied warranty under the Song-Beverly Consumer Warranty Act and for violation of the Magnuson-Moss Warranty Act, California's Unfair Competition Law. Philips recalled its Bi-Level Positive Airway Pressure, Continuous Positive Airway Pressure and mechanical ventilator devices involving an estimated 3 million to 4 million devices globally. Said products contained polyester based polyurethane foam that degrades and can be inhaled by the users, causing health risks, including respiratory issues and cancer. Mitrovich was diagnosed with sleep apnea and purchased a DreamStation BiPAP machine. Because of the recall, Mitrovich has been forced to continue using her DreamStation as she is unable to obtain a replacement machine and requires the assistance of a machine to sleep safely. She now suffers from bronchiectasis, honeycomb of the lungs, early pulmonary fibrosis and other issues. [BN] Plaintiff is represented by: David M. Birka, Esq. BIRKA-WHITE LAW OFFICES 178 E. Prospect Avenue Danville, CA 94526 Telephone: (925) 362-9999 Email: dbw@birka-whjte.com - and - Geoffrey P. Norton, Esq. NORTON & MELNIK 20920 Warner Center Lane Suite B 2 Woodland Hills, CA 91367 Telephone: (818) 999-9500 Ext. 1010 Facsimile: (818) 999-9155 Email: gnorton@nortonmelnik.com PORTLAND, OR: Filing of Class Certification Bid Extended Oct. 1 --------------------------------------------------------------- In the class action lawsuit captioned as Don't Shoot Portland et al v. City of Portland, Case No. 3:20-cv-00917 (D. Or.), the Hon. Judge Marco A. Hernandez entered an order granting class certification-related motion for extension of time. The discovery related to class certification is to be completed by Sept. 24, 2021. The Motion to Certify Class is due by Oct. 1, 2021, says Judge Hernandez. The nature of suit states Civil Rights -- Other Civil Rights. Portland, Oregon's largest city, sits on the Columbia and Willamette rivers, in the shadow of snow-capped Mount Hood. It's known for its parks, bridges and bicycle paths, as well as for its eco-friendliness and its microbreweries and coffeehouses. Iconic Washington Park encompasses sites from the formal Japanese Garden to Oregon Zoo and its railway.[CC] PROGRESSIVE DIRECT: Class of Insureds Certified in Stedman Suit --------------------------------------------------------------- The U.S. District Court for the Western District of Washington, Seattle, issued an order certifying class and appointing class counsel in the lawsuit titled JOEL STEDMAN and KAREN JOYCE, individually and on behalf of all others similarly situated, Plaintiffs v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant, Case No. C18-1254RSL (W.D. Wash.). Plaintiffs Joel Stedman and Karen Joyce purchased personal-injury-protection ("PIP") policies from Defendant Progressive Direct Insurance Company. The policies provide coverage for medical and hospital benefits. The policy language was approved by the Washington Office of the Insurance Commissioner, and the Washington Supreme Court has determined that the approved language sets forth the only four bases for lawfully denying, limiting, or terminating the medical and hospital benefits afforded by a PIP policy (Durant v. State Farm, 191 Wn.2d 1, 9 (2018)). In 2014, Ms. Joyce was injured in an automobile collision. Mr. Stedman was injured in an accident in 2016. They were both covered by a Progressive PIP policy and received some benefits thereunder. A few months after the accidents, Progressive requested that its insureds undergo an independent medical examination ("IME"). Both Ms. Joyce and Mr. Stedman agreed. Prior to the examinations, Progressive sent letters to the examining physicians providing background and materials regarding the insureds and requesting that the physician provide a narrative report addressing a list of specific issues, including whether the insured's condition were fixed and stable, at pre-injury status, had reached maximum therapeutic benefit, or had reached maximum medical improvement ("MMI"). This inquiry is part of Progressive's form template communication with medical examiners. Ms. Joyce's IME report indicated that she had reached MMI. In notifying the insured of the IME results and its coverage decision, Progressive acknowledged that most of Ms. Joyce's complaints were related to the accident and that the treatment she had received to date (with two exceptions) were reasonable and necessary. Based on the IME recommendations, Progressive determined that it was "unable to consider for payment, under your client's Personal Injury Protection coverage, treatment after 1/30/15 [the date of the IME] including MD visits, physical therapy, massage therapy, diagnostic testing and medications." No explanation for the termination is provided other than the MMI finding. On Feb. 14, 2017, Mr. Stedman received a copy of an IME report determining that he had reached MMI as of Aug. 31, 2016. Progressive sent him the same type of notification it had sent Ms. Joyce, acknowledging that his injuries were related to the accident and that the treatments received prior to Aug. 31, 2016, were reasonable and necessary. "Based on the IME recommendations," Progressive determined that it was "unable to consider for payment, under Joel Stedman's Personal Injury Protection coverage, physiatric, physical therapy and massage therapy treatment after 2/7/17 [the date of the IME]." Explanations for the termination included both the MMI finding and the examiner's opinion that treatments after Aug. 31, 2016, were not reasonable, necessary, and/or related to the motor vehicle accident. The letters Ms. Joyce and Mr. Stedman received follow Progressive's form template communication. In July 2018, the Plaintiffs filed this lawsuit, asserting that Progressive's reliance on an MMI determination to deny the payment of PIP benefits violates the Washington Insurance Fair Conduct Act ("IFCA") and the Washington Consumer Protection Act ("CPA"), constitutes tortious bad faith handling of insurance claims, and breaches the implied covenant of good faith and fair dealing. The Plaintiffs seek to certify a class comprised of: All insureds, as defined within Progressive's Automobile Policy, and all third-party beneficiaries of such coverage, under any Progressive insurance policy effective in the state of Washington between July 24, 2012 and the present, for whom Progressive limited benefits, terminated benefits, or denied coverage based, even in part, upon its determination that its insured or beneficiary had reached maximum medical improvement or a fixed and stable condition. The Defendant opposes class certification on the grounds that there are no common questions capable of class-wide answers and, even if there were, the individual issues will predominate and representative litigation is not the superior method for resolving Plaintiffs' claims. A. Prerequisites of a Class Pursuant to Rule 23 (a) of the Federal Rules of Civil Procedure, a court may certify a class only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. District Judge Robert S. Lasnik notes that Progressive does not dispute that the proposed class is of sufficient size to meet the numerosity requirement. The Judge also finds that common questions are at issue that are apt to drive the resolution of the litigation, and that Progressive has not shown that difficulties in class member identification prevent a finding of commonality. Progressive does not dispute that the Plaintiffs' claims are typical of the class. The Court finds no reason to suspect that the representative's claims are not "reasonably co-extensive with those of absent class members," citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Progressive also does not dispute that the named Plaintiffs and their counsel are committed to vigorously prosecuting this action on behalf of the class and will do so in an adequate manner. Maintenance of a Damages Class under Rule 23(b)(3) The Plaintiff argues that the provisions of Rule 23(b)(3) apply, pursuant to which the Court is required to find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the likely difficulties in managing a class action. Although each class member will have to prove his or her damages arising from Progressive's curtailment of PIP benefits, in this circuit, damage calculations alone cannot defeat certification under Rule 23(b)(3), Judge Lasnik opines, citing Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010). Judge Lasnik points out that as long as the class members are able to show that their damages stemmed from the conduct that created the common legal liability, the common questions predominate over any individualized damage calculation. Because there are no related cases and the putative class members have shown little interest in pursuing individual actions or controlling the prosecution of these claims, the first two factors of the Rule 23(b)(3) analysis weigh in favor of class action treatment, Judge Lasnik holds. The third factor, Rule 23(b)(3)(C), involves consideration of the desirability or undesirability of concentrating the litigation in a particular forum. The Court finds that this factor weighs in favor of class action treatment because the proposed class is limited to individuals in Washington, who are subject to Washington law. The Western District is therefore an entirely logical place for the case to proceed. The fourth Rule 23(b)(3) factor--the likely difficulties in managing the class action--weighs against class treatment where each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually such that the complexities of class action treatment outweigh the benefits of considering common issues in one trial. The parties have not addressed whether these issues should be resolved before the class is notified of this action or whether broader notice--potentially to all insureds whose PIP benefits were curtailed following an IME--would be appropriate. The Court finds that the benefits of a single class action that resolves the common issues identified outweighs the management challenges that will undoubtedly arise. Given that the other three of four matters pertinent to the Rule 23(b)(3) analysis favor class treatment, concerns regarding manageability will not preclude certification. Conclusion For all of these reasons, the Plaintiffs' motion for class certification is granted. It is ordered that the following class is certified pursuant to Fed. R. Civ. P. 23(b)(3): All insureds, as defined within Progressive's Automobile Policy, and all third-party beneficiaries of such coverage, under any Progressive insurance policy effective in the state of Washington between July 24, 2012 and the present, for whom Progressive limited benefits, terminated benefits, or denied coverage based, even in part, upon its determination that its insured or beneficiary had reached maximum medical improvement or a fixed and stable condition. Ms. Joyce and Mr. Stedman are appointed as representatives of the class. The Plaintiffs' counsel is designated as counsel for the class. The parties will meet and confer regarding a case management proposal to quickly and efficiently bring before the Court the issue of the meaning of "based on" as used in Durant in light of Progressive's communications with its insured. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/yjjxfvs9 from Leagle.com. QUEST DIAGNOSTICS: Bid to Dismiss AMCA Data Security Suit Pending ----------------------------------------------------------------- Quest Diagnostics Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 23, 2021, for the quarterly period ended June 30, 2021, that the company's motion to dismiss the consolidated putative class action suit related to the 2018-2019 AMCA Data Security Incident is still pending. On June 3, 2019, the Company reported that Retrieval-Masters Creditors Bureau, Inc./American Medical Collection Agency ("AMCA") had informed the Company and Optum360 LLC that an unauthorized user had access to AMCA's system between August 1, 2018 and March 30, 2019. Optum360 provides revenue management services to the Company, and AMCA provided debt collection services to Optum360. AMCA first informed the Company of the AMCA Data Security Incident on May 14, 2019. AMCA's affected system included financial information (e.g., credit card numbers and bank account information), medical information and other personal information (e.g., social security numbers). Test results were not included. Neither Optum360's nor the Company's systems or databases were involved in the incident. AMCA also informed the Company that information pertaining to other laboratories' customers was also affected. Following announcement of the AMCA Data Security Incident, AMCA sought protection under the U.S. bankruptcy laws. The bankruptcy proceeding has been dismissed. Numerous putative class action lawsuits were filed against the Company related to the AMCA Data Security Incident. The U.S. Judicial Panel on Multidistrict Litigation transferred the cases still pending to, and consolidated them for pre-trial proceedings in, the U.S. District Court for New Jersey. In November 2019, the plaintiffs in the multidistrict proceeding filed a consolidated putative class action complaint against the Company and Optum360 that named additional individuals as plaintiffs and that asserted a variety of common law and statutory claims in connection with the AMCA Data Security Incident. In January 2020, the Company moved to dismiss the consolidated complaint; the motion to dismiss is pending. No further updates were provided in the Company's SEC report. Quest Diagnostics Incorporated, incorporated on September 20, 1996, is a provider of diagnostic information services. The Company operates through two businesses: Diagnostic Information Services and Diagnostic Solutions. The company is based in Secaucus, New Jersey. QUEST DIAGNOSTICS: Bid to Nix Consolidated ERISA Suit Denied ------------------------------------------------------------ Quest Diagnostics Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 23, 2021, for the quarterly period ended June 30, 2021, that the court denied the company's motion to dismiss the consolidated putative class action suit entitled, In re: Quest Diagnostics ERISA Litigation In 2020, two putative class action lawsuits were filed in the U.S. District Court for New Jersey against the Company and other defendants with respect to the Company's 401(k) plan. The complaint alleges, among other things, that the fiduciaries of the 401(k) plan breached their duties by failing to disclose the expenses and risks of plan investment options, allowing unreasonable administration expenses to be charged to plan participants, and selecting and retaining high cost and poor performing investments. In October 2020, the court consolidated the two lawsuits under the caption In re: Quest Diagnostics ERISA Litigation and plaintiffs filed a consolidated amended complaint. In May 2021, the court denied the Company's motion to dismiss the complaint. Quest Diagnostics Incorporated, incorporated on September 20, 1996, is a provider of diagnostic information services. The Company operates through two businesses: Diagnostic Information Services and Diagnostic Solutions. The company is based in Secaucus, New Jersey. RADIOLOGY BOARD: Siva Appeals Anticompetitive Suit Dismissal ------------------------------------------------------------ Plaintiff Sadhish K. Siva filed an appeal from a court ruling entered in the lawsuit styled SADHISH K. SIVA, the Plaintiff, v. AMERICAN BOARD OF RADIOLOGY, the Defendant, Case No. 1:19-cv-01407, in the United States District Court for the Northern District of Illinois. As previously reported in the Class Action Reporter, the lawsuit challenges the Board's practice of requiring all radiologists to purchase maintenance of certification product (MOC) to maintain their initial American Board of Radiology (ABR) certifications. The case is about ABR's illegal and anti-competitive conduct in the market for initial board certification of radiology physicians and the market for maintenance of certification of radiologists. In very general terms, a radiologist identifies and assesses abnormalities in imaging studies such as X-rays, computer tomography (CT) scans, and magnetic resonance imaging (MRI) scans. ABR is illegally tying its initial certification product to its maintenance of certification product, referred to by ABR as MOC. The case is also about ABR's illegal creation and maintenance of its monopoly power in the market for maintenance of certification. ABR is the monopoly supplier of initial certifications for radiologists. Beginning in or about 1994, ABR used its monopoly position in the initial certification market to create a monopoly in the market of maintenance of certifications for radiologists, which is the subject of this lawsuit. Since then ABR has used various anti-competitive, exclusionary, and unlawful actions to promote MOC and prevent and limit the growth of competition from new providers of maintenance of certification for radiologists. ABR's conduct, including but not limited to tying and exclusive dealing, has harmed competition by preventing competition from others providing cheaper, less burdensome, and more innovative forms of maintenance of certification desired by radiologists. The tying product is ABR's initial board certification, which it sells to radiologists nationwide. ABR currently sells initial certification services to radiologists in four primary areas of radiology, diagnostic radiology, radiation oncology, medical physics, and interventional radiology/diagnostic radiology, and several subspecialties within the field of radiology. Many radiologists hold multiple initial ABR certifications, purchasing one or more primary certifications or subspecialties. The tied product is MOC, ABR's maintenance of certification. ABR has tied MOC to its initial certification. To drive sales of MOC and to monopolize the market for maintenance of certification, ABR has forced radiologists to purchase MOC, charged supracompetitive monopoly prices for MOC, and thwarted competition in the market formaintenance of certification. Currently, approximately 1,500-2,000 radiologists in the United States purchase ABR primary initial certifications annually. ABR has throughout the relevant period controlled the market for initial certification of radiologists in the United States. In 2016, the last year for which data is publicly available, ABR sold its MOC product to approximately 26,000 radiologists. Through its MOC program, ABR controls the market for maintenance of certification of radiologists. ABR has unlawfully obtained and maintained its monopoly power in the market for maintenance of certification services for the anti-competitive purpose of requiring radiologists to purchase MOC and not deal with competing providers of maintenance of certification services. The Plaintiff, individually and on behalf of all others similarly situated, now appeals to the U.S. Court of Appeals for the Seventh Circuit from the docket entry dated June 25, 2021, which dismissed the case without prejudice while also ordering "Civil case terminated," arising from the Court's Memorandum Opinion and Order dated January 8, 2021, dismissing all of Plaintiffs claims against the Defendant in the First Amended Complaint without prejudice and with leave to amend. The appellate case is captioned as SADHISH K. SIVA v. AMERICAN BOARD OF RADIOLOGY, Case No. 21-2334, in the U.S. Court of Appeals for the Seventh Circuit, filed on July 21, 2021.[BN] Plaintiff-Appellant Sadhish K. Siva, individually and on behalf of all others similarly situated, is represented by: C. Philip Curley, Esq. Cynthia H. Hyndman, Esq. Robert L. Margolis, Esq. ROBINSON CURLEY P.C. 300 South Wacker Drive, Suite 1700 Chicago, IL 60606 Telephone: (312) 663-3100 Facsimile: (312) 663-0303 E-mail: pceurley@robinsoncurley.com chyndman@robinsoncurley.com rmargolis@robinsoncurley.com - and - Katrina Carroll, Esq. CARLSON LYNCH LLP 111 West Washington, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: kcarroll@carlsonlynch.com - and - Michael J. Freed, Esq. Brian M. Hogan, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn IL 60015 Telephone: (224) 632-4500 E-mail: mfreed@fklmlaw.com bhogan@fklmlaw.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON & MILLEN LLC 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 234-6487 E-mail: jjagher@fkIlmlaw.com RAYMOND JAMES: Nguyen Seeks to Certify Class of Account Holders --------------------------------------------------------------- In the class action lawsuit captioned as KIMBERLY NGUYEN, On Behalf of Herself and All Others Similarly Situated, v. RAYMOND JAMES & ASSOCIATES, INC., Case No. 8:20-cv-00195-CEH-AAS (M.D. Fla.), the Plaintiff asks the Court to enter an order 1. certifying a class of: "All current and former Raymond James & Associates, Inc. account holders in the United States and its territories of a Freedom Account that was transferred from a Low- trading Activity commission-based account on or after January 24, 2016;" Excluded from the Class are the officers and directors of RJA at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns; and 2. appointing her as class representative and her attorneys as class counsel. The Defendant RJA, breached its fiduciary duties in order to enrich itself by recommending that clients with low-trading and, therefore, low-cost commission-based brokerage accounts switch to high-cost fee-based "Freedom Accounts" without conducting or documenting a proper analysis to determine whether the transfer was suitable for its clients. In fact, the Freedom Accounts were not suitable for low activity (i.e., buy and hold) commission account holders. As a result, Plaintiff and other class members paid on average between 9 and 22 times more in annual fees in the Freedom Accounts than they would have paid in the commission accounts. RJA operates as a wealth management firm. The Company offers portfolio management, financial planning, and advisory services. A copy of the Plaintiff's motion to certify class dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3BVt572 at no extra charge.[CC] The Plaintiff is represented by: Steven A. Schwartz, Esq. Zachary P. Beatty, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON- SMITH, LLP 361 West Lancaster Avenue Haverford, PA 29041 Telephone: (610) 649-8500 Facsimile: (610) 649-3633 E-mail: SAS@chimicles.com ZPB@chimicles.com - and - Franklin D. Azar, Esq. Margeaux Azar, Esq. Paul Wood, Esq. FRANKLIN D. AZAR & ASSOCIATES, P.C. 14426 East Evans Ave Aurora, CO 80014 Telephone: (303) 757-3300 Facsimile: (720) 213-5131 E-mail: Azarf@fdazar.com Azarm@fdazar.com Woodp@fdazar.com - and - Steven W. Teppler, Esq. MANDELBAUM SALSBURG, P.C. 11891 U.S. Highway One, Suite 100 North Palm Beach, FL 33408 Telephone: (561) 328-4617 Facsimile: (561) 214-4130 E-mail: steppler@lawfirm.ms REATA PHARMACEUTICALS: Francis Named Lead Plaintiff in Patel Suit ----------------------------------------------------------------- In the lawsuit captioned TOSHIF PATEL, Individually and On Behalf of All Others Similarly Situated v. REATA PHARMACEUTICALS, INC., ET AL., Case No. 4:20-CV-796-SDJ (E.D. Tex.), the U.S. District Court for the Eastern District of Texas, Sherman Division, issued an order: (1) granting the Motion of Russell Francis, Sr., for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Counsel; (2) denying the Motion of Jason Childs for Appointment as Lead Plaintiff and Approval of His Selection of Counsel; (3) denying the Motion of Waterford Township General Employees Retirement System as Lead Plaintiff and Approval of Selection of Counsel; and (4) denying the Motion of Luke G. Massar for Appointment as Lead Plaintiff and Approval of Lead Counsel. Background Defendant Reata, headquartered in Plano, Texas, is a "clinical stage biopharmaceutical company that develops novel therapeutics for patients with serious or life-threatening diseases by targeting molecular pathways that regulate cellular metabolism and inflammation." In October 2019, Reata was, and currently is, developing a drug called "omaveloxolone," which was and remains in Phase Two clinical development to treat Friedreich's ataxia ("FA") within the United States. On Oct. 14, 2019, during after-market hours, Reata issued a press release announcing positive outcomes from its Phase Two "MOXIe" clinical trial of omaveloxolone. The statement provided, inter alia, that patients treated with the drug experienced a "statistically significant improvement" in their condition and that "the MOXIe trial is the first study to demonstrate a significant improvement in neurological function in patients with FA." The press release further indicated that Reata would seek marketing approval for the drug in the United States and internationally. On Aug. 10, 2020, during pre-market hours, Reata issued a press release that included the company's second-quarter 2020 financial results and announced that "the FDA is not convinced that the MOXIe Part Two results will support a single study approval" and that Reata would "need to conduct a second pivotal trial that confirms the mFARS results of the MOXIe Part 2 study with a similar magnitude of effect." On the same day that Reata issued this press release, Reata's stock price fell nearly $52 per share, or about 33%. On Oct. 15, 2020, Plaintiff Toshif Patel initiated this action against Reata, its Chief Executive Officer, J. Warren Huff, and its Chief Financial Officer, Manmeet S. Soni, on behalf of anyone who purchased or otherwise acquired Reata securities between Oct. 15, 2019, and Aug. 7, 2020. First, Patel alleges that the Defendants, in announcing Reata's ostensibly positive Phase Two clinical data, made "materially false and misleading statements regarding Reata's business, operational, and compliance policies," in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Second, Patel claims that the Defendants violated the Act by failing to timely disclose that the MOXIe Part Two study results were insufficient, without additional evidence, to win marketing approval of omaveloxolone for the treatment of FA in the United States. On Oct. 15, 2020, the same day that Patel filed the Complaint, Patel issued a Private Securities Litigation Reform Act ("PSLRA") early notice via PRNewswire, a widely circulated national business-oriented wire service. The notice served to advise other potential class members of the claims alleged in the Complaint and announced that the deadline for class members to move for appointment as lead plaintiff was Dec. 14, 2020. On Dec. 14, 2020, four separate movants sought appointment as lead plaintiff and approval of their respective choice of lead counsel under the PSLRA: Russel Francis, Sr., Jason Childs, Waterford Township General Employees Retirement System, and Luke G. Massar. Francis is a New York resident and individual investor with more than 25 years of investing experience. Childs is a Michigan resident and individual investor with over 20 years of investing experience. Retirement System is an institutional investor and Michigan-based benefit plan providing benefits to current and former employees of Waterford Township, Michigan. Massar is an individual investor and Wisconsin resident with 30 years of investing experience. Movant Childs filed a Notice of Non-Opposition on Dec. 28, 2020, conceding that he did not have the largest financial interest in the relief sought, as required by the PSLRA. Discussion District Judge Sean D. Jordan notes that notice of this PSLRA action was timely published on Oct. 15, 2020, the same day the Complaint was filed, in PRNewswire, a widely circulated national business-oriented wire service. The notice provided the required information, including a description of the claims asserted, the proposed class, and the right of any putative class member to move for appointment as lead plaintiff. No challenge to the adequacy of the Oct. 15, 2020 notice has been raised. The Court, therefore, finds that the initial notice requirement has been met. The various competing motions for appointment as lead plaintiff have also been timely filed within the PSLRA's 60-day deadline. Under the PSLRA, courts are to presume that the plaintiff with the "largest financial interest in the relief sought by the class" is the lead plaintiff, so long as he or she otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. Of the lead-plaintiff movants, Massar sustained the largest overall financial loss, totaling approximately $1,164,107. However, relevant to the Rule 23 inquiry, Massar's losses arose exclusively out of Reata option contracts that he purchased during the Class Period. As for Massar's common-stock transactions, Massar actually experienced a profit of approximately $35,060, having sold his 2,000 shares of Reata common stock before the end of the Class Period. Francis sustained the second largest loss, totaling $73,420, which was entirely based on common-stock purchases. Childs suffered the third largest loss of the four lead-plaintiff movants, summing $51,593. Retirement System incurred losses of $31,704, also entirely based on common-stock purchases. Judge Jordan holds that Massar, therefore, suffered the largest financial loss from Reata's share-price decline during the relevant class period. Thus, under Section 78u-4(a)(3)(B)(iii)(I)(bb), Massar enjoys a presumption that he is the lead plaintiff, so long as he satisfies the relevant Rule 23 requirements. Here, it is undisputed that Massar has the highest financial interest of the lead-plaintiff movants--with financial losses of $1,164,107 stemming from Reata's falling share price. However, the fact that Massar's losses during the Class Period were based solely on option contracts renders Massar atypical of the putative class, Judge Jordan opines. And while Massar did trade in both common stock and options during the Class Period, his losses arose exclusively from his options; in fact, Massar profited from his common-stock investments. The Judge holds that this material gain in common stocks makes Massar's trading practices during the Class Period functionally the same as an investor, who traded only in options and materially different from the putative class consisting largely of common stockholders. In rebuttal, Massar points out that some courts have appointed options investors as lead plaintiffs in securities class actions (citing Hall v. Medicis Pharm. Corp., No. CV08-1821, 2009 WL 648626, at *5 (D. Ariz. Mar. 11, 2009), et al. However, each of these cases is inapposite here, Judge Jordan holds. For Massar, another factor has been presented that calls into question his typicality and adequacy: Massar made a material profit from his common-stock investments. Because 100% of Massar's Reata-driven losses stemmed from option contracts, even under the standard applied in Hall, Massar is not qualified to act as lead plaintiff, Judge Jordan points out. Movant Massar also cautions the Court against redefining the putative Class to consist only of investors in Reata common stock. However, the Court's denial of Massar's lead-plaintiff motion does not have the effect of restricting the putative class to investors holding exclusively common shares of Reata, Judge Jordan explains. Rather, the sole task of the Court presently is to appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members. Just because Massar, as an options investor, is disqualified from being the "most adequate" lead plaintiff does not mean that any Reata investors holding options are excluded from the class, Judge Jordan adds. Finally, even if the Court were to conclude that Massar satisfies typicality, thus, making him the presumptive lead plaintiff, that presumption would be rebutted because Massar's trading practices subject him to "unique defenses" concerning damages, Judge Jordan opines, citing Gelt Trading v. Co-Diagnostics, Inc., No. 2:20-CV-00368, 2021 WL 913934, at *5 (D. Utah Mar. 10, 2021). The Court agrees with the reasoning in Gelt Trading, which applies to Massar. Even if Massar's holding and trading Reata options and shares were typical of the class, Massar is potentially subject to unique defenses concerning damages that likewise render Massar ineligible to serve as lead plaintiff. Because Massar's trading practices are atypical of the class and, in any event, subject him to unique defenses, he is not the "most adequate plaintiff," and the Court denies his motion for appointment as lead plaintiff. The Court next considers whether Francis, having the second largest financial interest of the lead-plaintiff movants, satisfies the adequacy and typicality requirements of Rule 23, thus, making him the presumptive lead plaintiff. Judge Jordan holds that the nature of Francis's financial interest in and claims against Reata suggests that the incentives of Francis are aligned with those of the class. Francis likewise satisfies the adequacy requirement of Rule 23. As evident from Francis's motion, he has retained competent and experienced counsel, who are prepared to litigate this action efficiently and aggressively. Francis also contends that there is no known conflict between his claims and those asserted on behalf of the class. In light of this, Judge Jordan holds that Francis has satisfied the typicality and adequacy requirements of Rule 23 and is the presumptive lead plaintiff. Once the Court selects a lead plaintiff, that plaintiff can then choose lead counsel, subject to the Court's approval. Francis has retained The Rosen Law Firm, P.A., as lead counsel and Steckler Wayne Cochran, PLLC, as liaison counsel in this matter and has moved for the Court's approval. The Court approves Francis's selection of lead counsel and liaison counsel. Conclusion For these reasons, the Court grants the Motion of Russell Francis, Sr., for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Counsel, and denies the Motion of Jason Childs for Appointment as Lead Plaintiff and Approval of His Selection of Counsel, the Motion of Waterford Township General Employees Retirement System as Lead Plaintiff and Approval of Selection of Counsel, and the Motion of Luke G. Massar for Appointment as Lead Plaintiff and Approval of Lead Counsel. The Court further orders that Russell Francis, Sr. is appointed as lead plaintiff pursuant to the Private Securities Litigation Reform Act of 1995, 15 U.S.C. Section 78u-4(a)(3)(B); and Francis's selection of The Rosen Law Firm, P.A., as lead counsel and Steckler Wayne Cochran, PLLC as liaison, counsel are approved, pursuant to 15 U.S.C. Section 78u-4(a)(3)(B)(v). A full-text copy of the Court's Memorandum Opinion and Order dated July 15, 2021, is available at https://tinyurl.com/xp7rrhx4 from Leagle.com. RENTGROW INC: Court Tosses McIntyre Bid for Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as PATRICIA MCINTYRE, on behalf of herself and all other similarly situated, v. RENTGROW, INC., d/b/a YARDI RESIDENT SCREENING, Case No. 1:18-cv-12141-ADB (D. Mass.), the Hon. Judge Allison D. Burroughs entered an order: 1. granting the Defendant's motion for summary judgment; and 2. denying the Plaintiff's motion for class certification. The Court said, "In sum, although Plaintiff has raised a genuine issue of fact as to the accuracy of the July 2017 Report and the reasonableness of Defendant's procedures, her claim cannot survive summary judgment because a reasonable jury could not find that Plaintiff suffered any actual damages related to a FCRA violation or that, for purposes of statutory and punitive damages, the Defendant acted willfully. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3ld3nVF at no extra charge.[CC] RETAIL EQUATION: GAP Appeals Ruling in Hayden FCRA Suit to 9th Cir. ------------------------------------------------------------------- Defendant THE GAP, INC. filed an appeal from a court ruling entered in the lawsuit styled SHADI HAYDEN, individually and on behalf of all others similarly situated v. THE RETAIL EQUATION, INC., and SEPHORA USA, INC., Case No. 8:20-cv-01203-JWH-DFM, in the U.S. District Court for Central California, Santa Ana. As reported in the Class Action Reporter on July 17, 2020, the lawsuit is brought against the Defendants for invasion of privacy, violations of California's unfair competition law, unconscionability, defamation per se, violations of the Fair Credit Reporting Act, and unjust enrichment. The case involves the alleged unlawful sharing, receipt, and use of consumer data--specifically, non-anonymized, individual Consumer Commercial Activity Data and Consumer ID Data. The Plaintiff contends that without the consent or knowledge of its consumers, Sephora shares with TRE data collected from Sephora's consumers. TRE processes the shared consumer data to generate a consumer report and a risk score for each of Sephora's consumers. Defendant GAP Inc. seeks a review of the Court's Order dated July 8, 2021, denying its motion to compel arbitration. The appellate case is captioned as CHRISTINE ALIRE, Plaintiff-Appellee, and SHADI HAYDEN; JERRY HO; WILLIAM HANNUM; OLGA MARYAMCHIK; CAROL JULIANMOYE; JACQUELINE SMITH; VICTORIA CARUSO-DAVIS; MICHAEL MURPHY; CAROL LLOYD; SUSANA GUEVARA; SEAN FREDERICK; ERIC GILBERT, individually and on behalf of all others similarly situated, Plaintiffs v. THE GAP, INC., Defendant-Appellant, and THE RETAIL EQUATION, INC.; SEPHORA USA, INC.; ADVANCE AUTO PARTS; BED, BATH & BEYOND INC.; BEST BUY CO., INC.; BUY BUY BABY, INC.; CALERES, INC.; CVS HEALTH CORPORATION; DICK'S SPORTING GOODS, INC.; L BRANDS, INC.; STEIN MART, INC.; HOME DEPOT, INC.; THE TJX COMPANIES, INC., Defendants, Case No. 21-55752, in the U.S. Court of Appeals for the Ninth Circuit, filed on July 19, 2021. The parties shall meet the following time schedule: -- Transcript shall be ordered by August 16, 2021; -- Transcript shall be filed by September 14, 2021; -- Appellant's opening brief and excerpts of record shall be served and filed on October 25, 2021; -- Appellee's answering brief and excerpts of record shall be served and filed on November 24, 2021; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellee's brief. Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal.[BN] RETIREMENT PLANS: Class Settlement in Jander Gets Final Approval ---------------------------------------------------------------- In the class action lawsuit captioned as LARRY W. JANDER, RICHARD J. WAKSMAN, and all other individuals similarly situated, v. RETIREMENT PLANS COMMITTEE OF IBM, RICHARD CARROLL, MARTIN SCHROETER, and ROBERT WEBER, Case No. 1:15-cv-03781-CM (S.D.N.Y.), the Hon. Judge Colleen McMahon entered an order: 1. granting the motion for final approval of the settlement and the motion for an award of attorneys' fees and expenses and case contribution award; 2. approving the Proposed Settlement and the Plan of Allocation; 3. awarding the Class Counsel attorneys' fees in the amount of $1,425,000, representing 30% of the Settlement Fund. The Court said, "These attorneys' fees may be disbursed from the CRIS account once 75% of the Net Settlement Fund has been distributed. Moreover, Class Counsel shall be reimbursed for $90,861.89 in litigation expenses forthwith. Finally, Jander and Waksman may each be disbursed $10,000 forthwith. Additionally, on July 20, 2021, Defendants moved, unopposed, for a disbursement of funds from the Qualified Settlement Fund in order to reimburse IBM for fees associated with the engagement of an Independent Fiduciary to review the Settlement pursuant to the Amended Settlement Stipulation. Defendants' motion is granted. The Clerk of Court is directed to terminate all pending motions and to mark this case closed." A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3rHSts6 at no extra charge.[CC] RICOH IMAGING: Mitchell Sues Over Camera Defect ----------------------------------------------- Danny Gene Mitchell Jr., individually and on behalf of all others similarly situated, Plaintiff, v. Ricoh Imaging Americas Corporation, Defendant, Case No. 21-cv-01949 (D. Colo., July 17, 2021), seeks to recover actual damages, statutory damages, attorney fees and costs for breaches of express warranty, and implied warranty of merchantability under the Colorado Consumer Protection Act and the Magnuson Moss Warranty Act. Ricoh Imaging Americas Corporation manufactures, markets, labels and sells cameras under the K-70 model under the "Pentax" brand. The aperture in the K-70 is controlled by a solenoid, located within the diaphragm control block. Mitchell owns a K-70 and claims that an armature's failure causes exposure issues and that the problem persists long after the warranty period. [BN] Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cutter Mill Rd., Ste. 409 Great Neck NY 11021-3104 Tel: (516) 268-7080 Fax: (516) 234-7800 Email: spencer@spencersheehan.com RITE AID: Seeks to Decertify Class in Nucci "Dress Code" Suit ------------------------------------------------------------- In the class action lawsuit captioned as KRISTAL NUCCI and KELLY SHAW, individually and on behalf of others similarly situated and the California Labor & Workforce Development Agency, and ANA GOSWICK, individually and on behalf of all other similarly situated, v. RITE AID CORPORATION, THRIFTY PAYLESS, INC. and DOES 1-10 inclusive, Case No. 5:19-cv-01434-LHK (N.D. Cal.), the Defendant asks the Court to enter an order decertifying the class. The Plaintiffs can no longer demonstrate that there is a classwide method of proof with regard to the fundamental liability questions at the heart of their claims. Last year, this Court determined that the conclusions in Plaintiffs' expert report were proof that the dress code practice at the stores was consistent with the written policy regarding "team colors." The Defendants said, "The Plaintiffs cannot maintain certification of the class. As the Order noted, the difficulty in managing a class action depends largely on whether Plaintiffs' case "rises and falls on common evidence." The results of the Updated Expert Report show that the evidence on which the Court based its certification order are no longer valid. The number of respondents in the Updated Expert Report who believed there was an alternative to the alleged "required" uniform doubled in size. The new evidence shows that this is not just the policy being "enforced differently on the margins," as the Court had initially thought, but instead requires an individual inquiry as to whether the dress standards were actually required as a condition of employment. Additionally, the Updated Expert Report provides no common evidence to support certification on the minimum wage issue. Accordingly, common issues do not predominate, and the Court should decertify the class. If the Court determines certification is still appropriate, however, the Court should modify the class definition, in accordance with the change in dress standards and proof presented by Plaintiffs, to: "All non-exempt employees who worked greater than 20 shifts, excluding pharmacists, pharmacy interns, and asset protection agents, working in any Rite Aid Store in California at any time from March 13, 2015 through March 22, 2020."" A copy of the Defendant's motion dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3rEK8Wh at no extra charge.[CC] The Defendants are represented by: Jonathan Allan Klein, Esq. Thomas K. Hockel, Esq. Sweta H. Patel, Esq. KLEIN, HOCKEL, IEZZA & PATEL P.C. 1981 North Broadway, Suite 220 Walnut Creek, CA 94596 Telephone: (415) 951-0535 Facsimile: (415) 391-7808 RITE AID: Wins Bid to Toss Ostermeier-McLucas' Amended Complaint ---------------------------------------------------------------- The U.S. District Court for the Eastern District of New York grants the Defendants' motion to dismiss the Plaintiff's amended complaint in the lawsuit captioned GINA OSTERMEIER-McLUCAS, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. RITE AID HDQTRS. CORP. & RITE AID OF NEW YORK, INC., Defendants, Case No. 20-CV-2915 (ARR) (SJB) (E.D.N.Y.). On July 1, 2020, the Plaintiff, Gina Ostermeier-McLucas, commenced this putative class action against Rite Aid Corporation, claiming violations of the New York General Business Law ("NYGBL") and the Magnuson-Moss Warranty Act ("MMWA"), as well as breach of express warranty and unjust enrichment. The Plaintiff later amended her complaint, replacing Defendant Rite Aid Corporation with Defendants Rite Aid Hdqrtrs. Corp. ("RAHC") and Rite Aid of New York, Inc. ("RAoNY") and removing her MMWA and breach of express warranty claims. On March 16, 2021, the Defendants moved to dismiss the Plaintiff's amended complaint in its entirety. The Plaintiff filed her opposition on April 16, 2021, and the Defendants filed their reply on May 7, 2021. Background Rite Aid owns and operates retail stores throughout the United States. From these stores, Rite Aid distributes its own brand of Infants' Fever Reducer & Pain Reliever ("Infants' Products") and Children's Fever Reducer & Pain Reliever ("Children's Products"). Acetaminophen, the active ingredients in the products, can be dangerous, and perhaps even fatal, if taken in large doses. The Food and Drug Administration ("FDA") warns caregivers to be very careful when giving infants acetaminophen. The Plaintiff alleges that Rite Aid exploits parents' and caregivers' fears of administering dangerous doses to their infants by packaging the products in a way that deceives reasonable consumers into thinking that infants cannot safely take Children's Products. Although the Infants' Products contain the same active ingredient and formulation (i.e., 160 mg per 5 mL of acetaminophen) as the Children's Products, Rite Aid charges approximately three times as much per ounce for the Infants' Products as for the Children's Products. The packaging highlights the words "infants'" and "children's" in "distinctive and colored lettering." The Amended Complaint includes images of the front labels of the products. Both labels note the active ingredient and concentration: acetaminophen 160 mg/5 mL. The labels also note several differences. The Infants' Products are marketed to consumers of "ages 2-3 years" while the Children's Products are marketed to consumers of "ages 2-11 years." The Infants' Products are available in "2 FL OZ (59 mL)" while the Children's Products are available in "4 FL OZ (118 mL)." The products also come with different dosing instruments, with the infants' label stating caregivers must "use only enclosed syringe." Finally, only the Infants' Products are labeled as having a "DYE-FREE non-staining formula." The Plaintiff first purchased the Infants' Products in or around 2010 when she lived in New York. The Plaintiff asserts that if she had known that the Products did not contain different medicines, she would not have purchased the Infants' Products or paid a price premium for the Infants' Products. The Plaintiff seeks to represent a class of all "persons who purchased Infants' Products for personal use in the United States" ("Nationwide Class"), as well as a class of all "persons who purchased Infants' Products for personal use in New York" ("New York Subclass"). On behalf of herself and the Nationwide Class, the Plaintiff brings a common law cause of action for unjust enrichment. On behalf of herself and the New York Subclass, she claims violations of NYGBL Sections 349 and 350. The Defendants move to dismiss the Plaintiff's amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction under Rule 12(b)(2), for failure to state a claim under Rule 12(b)(6), and for failure to plead her claims with sufficient particularity under Rule 9(b). I. The Plaintiff's NYGBL claims are dismissed. The Defendant argues that the Court should dismiss the Plaintiff's claims for injunctive relief for lack of standing. In her amended complaint, the Plaintiff states that she "desires to purchase 'Infants' products in the future and regularly visits retail locations where such products are sold. If Plaintiff knew that the Infants' Products' labels were truthful and non-misleading, she would continue to purchase the Infants' Products in the future." District Judge Allyne R. Ross holds that this allegation is not sufficient to demonstrate that the Plaintiff is likely to be injured by the Defendants' conduct in the future. The Judge explains that to the extent that the Plaintiff was deceived by Rite Aid's labels, the existence of this lawsuit shows that she is now aware that the Infants' Product contains the same medicinal content as the Children's Product. Thus, she will not be harmed again in the same way in the future and, therefore, lacks standing to seek injunctive relief. Judge Ross rules that the remainder of the Plaintiff's NYGBL claims is dismissed because she has failed to plausibly allege that Rite Aid's labels are "materially misleading." Judge Ross also agrees with the Defendants and the U.S. District Court for the Northern District of California that the Plaintiff has not plausibly alleged that "a significant portion of the general consuming public or of targeted customers, acting reasonably in the circumstances, could be misled" by Rite Aid's labels, citing Jessani v. Monini N. Am., Inc., 744 F. App'x 19 (2d Cir. 2018). The Court states that a reasonable consumer would not be misled into believing that the infants' products contain medicine that is different from that in the children's products when the labels clearly disclose otherwise. Therefore, the labels are not false or deceptive and the Plaintiff's NYGBL claims fail as a matter of law. II. The Plaintiff's unjust enrichment claim is dismissed as duplicative of her NYGBL claims. In asserting the unjust enrichment cause of action, the Plaintiff alleges that Rite Aid's unlawful conduct as described in this Complaint allowed Rite Aid to knowingly realize substantial revenues from selling Infants' Products at the expense of, and to the detriment or impoverishment of, the Plaintiff and the Nationwide Class members, and to Rite Aid's benefit and enrichment. Rite Aid has, thereby, violated fundamental principles of justice, equity, and good conscience. Judge Ross holds that the Plaintiff's argument fails. The Plaintiff's unjust enrichment claim arises out of the same factual allegations as its NYGBL claims: namely, that the Defendant unlawfully packaged its products in a misleading way. Judge Ross notes that she has already determined as a matter of law that the Defendants' packaging was not deceptive or misleading; thus, if the NYGBL claims fail, then the unjust enrichment claim necessarily fails. Judge Ross, therefore, dismiss the Plaintiff's unjust enrichment claim as duplicative. Conclusion For these reasons, the Defendants' motion to dismiss the Plaintiff's amended complaint is granted. A full-text copy of the Court's Opinion & Order dated July 15, 2021, is available at https://tinyurl.com/ywvv58az from Leagle.com. GEORGE F. CARPINELLO -- gcarpinello@bsfllp.com -- Boies Schiller Flexner LLP, in Albany, New York (Adam R. Shaw -- ashaw@bsfllp.com -- Robert C. Tietjen rtietjen@bsfllp.com -- Jenna C. Smith -- jsmith@bsfllp.com -- on the brief), for Plaintiff-Appellee. Austin C. Smith -- austin@acsmithlawgroup.com -- Smith Law Group, in New York City (on the brief), for Plaintiff-Appellee. Lynn E. Swanson -- lswanson@jonesswanson.com -- Peter Freiberg -- PFreiberg@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, L.L.C., in New Orleans, Louisiana, (on the brief), for Plaintiff-Appellee. Jason W. Burge -- jburge@fishmanhaygood.com -- Fishman Haygood L.L.P., in New Orleans, Louisiana (on the brief), for Plaintiff-Appellee. THOMAS M. FARRELL -- tfarrell@mcguirewoods.com -- McGuire Woods LLP, in Houston, Texas (K. Elizabeth Sieg -- bsieg@mcguirewoods.com -- McGuire Woods LLP, in Richmond, Virginia, on the brief), for Defendants-Appellants. ROBERTS WESLEYAN: Stevez Sues Over Blind-Inaccessible Website ------------------------------------------------------------- ARTURO STEVEZ, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED v. ROBERTS WESLEYAN COLLEGE, Case No. 1:21-cv-06223 (S.D.N.Y., July 21, 2021) is brought against Defendant for its failure to design, construct, maintain, and operate its website, https://www.roberts.edu/, to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Defendant's denial of full and equal access to its website, and therefore denial of its services offered, is a violation of Plaintiff's rights under the Americans with Disabilities Act and Section 504 of The Rehabilitation Act of 1973. According to the complaint, Plaintiff is a visually-impaired and legally blind person, who cannot use a computer without the assistance of screen-reading software. Plaintiff is, however, a proficient JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the Website on separate occasions using the JAWS screen-reader. During Plaintiff's visits to the website, the last occurring in July 2021, in an attempt to access the website for the purpose of possibly taking online courses offered by the Defendant, he was denied access to the website due to various barriers. The Plaintiff encountered multiple access barriers that denied Plaintiff an experience similar to that of a sighted person and full and equal access to the services offered and made available to the public and that denied Plaintiff the full enjoyment of the services of the Website by being unable to utilize the Defendant's website. Because simple compliance with the Web Content Accessibility Guidelines 2.0 would provide Plaintiff and other visually-impaired prospective students with equal access to the Website, Plaintiff alleges that Defendant has engaged in acts of intentional discrimination, states the complaint. Defendant is a New York Private Christian liberal arts college with its principal campus address located at 2301 Westside Drive, Rochester, NY 14624.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Tel: 212.228.9795 Fax: 212.982.6284 E-mail: Michael@gottlieb.legal Jeffrey@gottlieb.legal Dana@gottlieb.legal S-L DISTRIBUTION: Extension of Class Certification Deadline Sought ------------------------------------------------------------------ In the class action lawsuit captioned as ARNES VRABAC and PAUL ROCCO, on behalf of themselves and all others similarly situated, v. S-L DISTRIBUTION COMPANY, LLC, Case No. 1:20-cv-00937-JEJ (M.D. Pa.), the Parties ask the Court to enter an order extending the August 17, 2021 class certification deadline. On March 23, 2020, Plaintiffs Arnes Vrabac and Paul Rocco filed a complaint, which included three counts asserted on a class-wide basis: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) unjust enrichment. On June 18, 2021, Plaintiffs filed a Motion to Amend the Complaint to (1) add a claim for allegedly unpaid overtime wages under the Connecticut Wage Law, which S-L does not oppose, and (2) for leave to re-plead their previously dismissed implied covenant of good faith and fair dealing claim, which S-L opposes. A copy of the Parties' motion dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/2TLlp64 at no extra charge.[CC] The Plaintiffs are represented by: Harold L. Lichten, Esq. Matthew Thomson, Esq. Zachary L. Rubin, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: hlichten@llrlaw.com mthomson@llrlaw.com zrubin@llrlaw.com - and - Peter Winebrake, Esq. Mark J. Gottesfeld, Esq. Michelle Tolodziecki, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 E-mail: pwinebrake@winebrakelaw.com mgottesfeld@winebrakelaw.com mtolodziecki@winebrakelaw.com The Defendant is represented by: Emily C. Reineberg, Esq. Benjamin Jacobs, Esq. Sari M. Alamuddin, Esq. Eric M. Makinen, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 Facsimile: (215) 963-5001 E-mail: emily.reineberg@morganlewis.com benjamin.jacobs@morganlewis.com sari.alamuddin@morganlewis.com eric.makinen@morganlewis.com SAFECO INSURANCE: Signor Bid to Alter Class Cert. Order Tossed -------------------------------------------------------------- In the class action lawsuit captioned as GINA SIGNOR v. SAFECO INSURANCE COMPANY OF ILLINOIS, Case No. 0:19-cv-61937-WPD (S.D. Fla.), the Hon. Judge William P. Dimitrouleas entered an order denying the Plaintiff's motion to alter class certification order. The Court finds that Plaintiff has failed to demonstrate some justification for bringing a renewed motion for class certification. The Plaintiff could have initially sought certification of its newly defined class, but instead made the tactical decision to seek clarification of a differently defined class. Based on the arguments presented in Plaintiff's Motion to Alter Class Certification, it appears that the facts, expert opinions, and legal theories under which Plaintiff brings its renewed motion were available to Plaintiff in its initial motion for class certification. No new facts, intervening law, change in or clarified circumstances, or additional discovery are being marshalled by Plaintiff in filing its renewed motion for class certification. The Plaintiff Gina Signor brought this action on behalf of herself and similarly situated insureds that have suffered damages due to Defendant Safeco Insurance Company of Illinois's breach of its insurance policy, SA-2890/FLEP R1 3/15 or another policy with identical language in all relevant provisions (the "Policy"). The Plaintiff claims Defendant breached the Policy through its practice of using the CCC ONE Market Value System (CCC system) to adjust and settle its total loss claims in Florida. In addition, Plaintiff claims Defendant has breached the Policy by refusing to pay dealer fees when settling the claims of the putative class. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3i9EGr6 at no extra charge.[CC] SALLIE MAE: 2nd Cir. Affirms Denial of Bid to Dismiss Homaidan Suit ------------------------------------------------------------------- In the lawsuit titled HILAL K. HOMAIDAN, Plaintiff-Appellee v. SALLIE MAE, INC., NAVIENT SOLUTIONS, LLC, NAVIENT CREDIT FINANCE CORPORATION, Defendants-Appellants, Case No. 20-1981 (2d Cir.), the United States Court of Appeals for the Second Circuit affirms the bankruptcy court's denial of Navient's motion to dismiss. The Bankruptcy Code immunizes certain liabilities from discharge, including much educational debt (11 U.S.C. Section 523(a)(8)). The question in this case is whether the private educational loans that Plaintiff-Appellee Hilal K. Homaidan took out from Defendant-Appellants Sallie Mae Inc., Navient Solutions, LLC, and Navient Credit Finance Corp. were dischargeable. Mr. Homaidan received the loans ("Navient loans"), graduated from Emerson College, and later filed for Chapter 7 bankruptcy. The bankruptcy court's 2009 discharge order was ambiguous as to whether the Navient loans were discharged. Navient pursued repayment after the discharge order was issued, and Homaidan complied. After paying off the loans in full, Homaidan reopened the bankruptcy case and commenced this adversary proceeding against Navient seeking, among other things, actual damages for Navient's alleged violation of the discharge order. The U.S. Bankruptcy Court for the Eastern District of New York (Stong, B.J.) determined that the Navient loans were not excepted from discharge under 11 U.S.C. Section 523(a)(8)(A)(ii) and, therefore, denied Navient's motion to dismiss, see Homaidan v. SLM Corp. (In re Homaidan), 596 B.R. 86, 107 (Bankr. E.D.N.Y. 2019). Navient maintains that Section 523(a)(8)(A)(ii) prevented the loans from being discharged in Homaidan's bankruptcy. That provision excepts from discharge "obligations to repay funds received as an educational benefit, scholarship, or stipend." Under Navient's reading of that provision, the term "educational benefit" would encompass virtually all private student loans. Background Mr. Homaidan attended Emerson College from 2003-2007 and took out several loans to finance his education there. Among them were two direct-to-consumer Tuition Answer Loans, totaling $12,567, from Sallie Mae Inc., a corporation to which Navient is the successor. Although the loans helped underwrite Homaidan's college education, they were not made through Emerson's financial aid office, nor--Homaidan alleges--were they made solely to cover Emerson's cost of attendance. They went straight to Homaidan's bank account, and the loan proceeds exceeded the cost of Emerson's tuition. Soon after graduating, Homaidan filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Eastern District of New York. The petition listed the Navient loans as liabilities. Homaidan eventually obtained a discharge order from the bankruptcy court, but the order did not specify which debts were discharged. Rather, it observed that some common types of debts, including debts for most student loans, are not dischargeable in a Chapter 7 proceeding. After the bankruptcy proceeding was closed, Navient hired a collection firm to pester Homaidan about paying back his Tuition Answer Loans. These demands for repayment caused Homaidan to assume that the loans had not been discharged; so he paid Navient in full, allegedly "under the mistaken belief that he had a legal obligation to do so." In 2017, Homaidan moved to reopen his bankruptcy case to seek a determination that the Navient loans were in fact discharged during the original proceeding. This would allow him to sue Navient for violating the discharge order. Once the case was reopened, Homaidan commenced the instant adversary proceeding against Navient, which is styled as a putative class action. According to Homaidan, Navient has employed a scheme of issuing dischargeable loans to unsophisticated student borrowers and then demanding repayment even after those loans are discharged in bankruptcy. Navient moved to dismiss the adversary proceeding under Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia, that Homaidan's Tuition Answer Loans were excepted from discharge under 11 U.S.C. Section 523(a)(8)(A)(ii). The bankruptcy court rejected that argument, concluding that "both by its terms and read in context, [Section 523(a)(8)(A)(ii)] does not sweep in all education-related debt." The district court (Block, J.) then certified the bankruptcy court's order for interlocutory appeal. Discussion The sole question is one of statutory interpretation: whether the loans at issue constitute "an obligation to repay funds received as an educational benefit" and were, therefore, excepted from discharge under Section 523(a)(8)(A)(ii). Homaidan contends that Navient is estopped from advancing its interpretation of Section 523(a)(8)(A)(ii). But the Court of Appeals reaches it for the reasons set forth in the margin, and concludes that Homaidan's loans fall outside the scope of Section 523(a)(8)(A)(ii). The Court of Appeals' inquiry begins (and in this case ends) with the statutory text. The Bankruptcy Code lays out several categories of educational debt that cannot be discharged in bankruptcy absent a showing of undue hardship. The dense language in 11 U.S.C. Section 523(a)(8) means that three categories of educational debt cannot be discharged in bankruptcy: (1) loans and benefit overpayments backed by the government or a nonprofit; (2) obligations to repay funds received as an educational benefit, scholarship, or stipend; and (3) qualified private educational loans, Judge Jacobs explains. Navient does not argue (in this appeal, at least) that the loan it made to Homaidan falls into either the first or third categories. Nor does Navient argue the loan constitutes a "scholarship" or "stipend." Therefore, the only question remaining is whether Navient's loan is "an obligation to repay funds received as an educational benefit" under Section 523(a)(8)(A)(ii), Judge Jacobs holds. Navient argues that its loan agreement constitutes an "obligation to repay funds" and that Homaidan obtained those funds for the purpose of advancing his education, thereby, deriving from them an "educational benefit." Navient endeavors to bolster this textual argument by pointing to a line of cases holding (without much textual analysis) that a private loan is covered by Section 523(a)(8)(A)(ii) if the debtor obtained the funds to pay for educational expenses. Finally, Navient relies on a summary order of this Court, which is by definition non-precedential, and in any event, beside the point, Judge Jacobs opines. Navient's interpretation violates several rules of statutory construction, Judge Jacobs holds. First, it is unsupported by plain meaning. Second, Navient points the Court of Appeals to other statutes in which Congress has used the term "obligation to repay" in reference to loans. That observation has little bearing on the Court of Appeals' analysis, which principally concerns Section 523(a)(8), Judge Jacobs notes. The question is not whether the phrase "obligation to repay" can ever be used to describe a loan, or even whether it can be an apt description, Judge Jacobs states. Rather, the Court of Appeals must determine what Congress meant when it used that term in Section 523(a)(8). Navient's interpretation also clashes with noscitur a sociis, the canon that "counsels that a word is given more precise content by the neighboring words with which it is associated," Judge Jacobs also finds, among other things, citing Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634-35 (2012). In this case, the disputed term--educational benefit--is undefined and potentially ambiguous. Interpreting "educational benefit" to cover all private student loans when the two terms listed in tandem describe "specific and quite limited kinds of payments that . . . do not usually require repayment," In re Crocker, 941 F.3d at 220, would improperly broaden Section 523(a)(8)(A)(ii)'s scope, Judge Jacobs opines. "Educational benefit" is, therefore, best read to refer to conditional grant payments similar to scholarships and stipends. Per Section 523(a)(8)(A)(ii), that obligation cannot be discharged in bankruptcy, Judge Jacobs holds. Conclusion For the reasons stated, the district court's order denying Navient's motion to dismiss is affirmed. A full-text copy of the Court's Decision dated July 15, 2021, is available at https://tinyurl.com/2rerdzd3 from Leagle.com. SAMSUNG TELECOMMUNICATIONS: Class Action Settlement Gets Final OK ----------------------------------------------------------------- In the class action lawsuit captioned as DANIEL NORCIA v. SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, et al., Case No. 3:14-cv-00582-JD (N.D. Cal.), the Hon. Judge James Donato entered an order that the final approval of the class action settlement is granted. The single opt-out is ordered excluded from the settlement. The pending objection by Steven Helfand is overruled. Class counsel is awarded $840,000 in attorneys' fees, and ordered reimbursed $101,138.76 in litigation expenses. The settlement administrator is awarded additional costs of up to $155,500. The named class representative, Daniel Norcia, is awarded a $3,000 incentive payment. The case will remain closed, but counsel must file the post-distribution accounting document on the ECF docket when the time comes, as required by the Northern District's Procedural Guidance for Class Action Settlements, says Judge Donato. This is a consumer deception class action alleging that defendant Samsung manipulated its Galaxy S4 smartphones' performance on "benchmarking" apps, which are performance-measuring tools used by reviewers and consumers. Samsung is said to have "rigged" the phones to detect commonly used benchmarking apps and artificially boost performance of the central and graphics processing units during the benchmarking cycle. The proposed settlement class, which has been conditionally certified, consists of "[a]ll persons or entities who purchased one or more 16 GB Galaxy S4 smartphones in the State of California from April 2013 until July 2013." A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3C4TL5t at no extra charge.[CC] SAN FRANCISCO, CA: Final OK of Class Settlement in Zayas Sought --------------------------------------------------------------- In the class action lawsuit captioned as CANDIDO ZAYAS, RUBEN SOTO, ALFREDO RUIZ, JOSE POOT, MILTON LECLAIRE, NIGEL HENRY, RALPH DOMINGUEZ, MATTHEW BRUGMAN, MICHAEL BROWN, KISHAWN NORBERT, MARK EDWARD HILL, AND JAMES CLARK, v. SAN FRANCISCO COUNTY SHERIFF'S DEPARTMENT, CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO SHERIFF VICKI HENNESSEY; UNDER SHERIFF MATHEW FREEAN; CHIEF DEPUTY SHERIFF PAUL MIYAMOTO; CAPTAIN JASON JACKSON, SARGEANT DOLLY and John & Jane DOEs, Nos. 1-50, Case No. 3:18-cv-06155-JCS (N.D. Cal.), the Plaintiffs ask the Court to enter an order 1. granting final approval of the proposed settlement of this Action; and 2. granting approval of the proposed plan of allocation of the net proceeds of the Settlement (the "Plan of Allocation"), and approval of the attorney's fees and costs. A copy of the Plaintiffs' motion dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/3zJGME1 at no extra charge.[CC] The Plaintiffs are represented by: Yolanda Huang, Esq. LAW OFFICES OF YOLANDA HUANG 14th Street, Suite 500 Oakland, CA 94612 Telephone: (510) 329-2140 Facsimile: (510) 580-9410 E-Mail: yhuang.law@gmail.com - and - Stanley Goff, Esq. LAW OFFICE OF STANLEY GOFF 15 Boardman Place Suite 2 San Francisco, CA 94103 Telephone: (415) 571-9570 E-mail: scraiggoff@aol.com - and - Fulvio F. Cajina, Esq. LAW OFFICE OF FULVIO F. CAJINA 528 Grand Ave. Oakland, CA 94610 Telephone: (415) 601-0779 E-mail: fulvio@cajinalaw.com SCRIPPS HEALTH: Rosen Files Suit in S.D. California --------------------------------------------------- A class action lawsuit has been filed against Scripps Health. The case is styled as Madelyn Rosen, individually and on behalf of all others similarly situated v. Scripps Health, Case No. 3:21-cv-01358-JLS-WVG (S.D. Cal., July 28, 2021). The nature of suit is stated as Other Contract. Scripps Health -- https://www.scripps.org/ -- is a nonprofit health care system based in San Diego, California.[BN] The Plaintiff is represented by: Helen Irene Zeldes, Esq. SCHONBRUN SEPLOW HARRIS HOFFMAN & ZELDES, LLP 501 West Broadway, Suite 800 San Diego, CA 92101 Phone: (619) 400-4990 Email: hzeldes@sshhzlaw.com SHENANDOAH VALLEY: Files Writ of Certiorari in Doe 4 Class Suit --------------------------------------------------------------- Defendant SHENANDOAH VALLEY JUVENILE CENTER COMMISSION filed with the Supreme Court of United States a petition for a writ of certiorari in the matter styled SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Petitioner v. JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated, Respondent, Case No. 21-48. Response is due on August 13, 2021. Shenandoah Valley Juvenile Center Commission petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in the case titled JOHN DOE 4, by and through his next friend, NELSON LOPEZ, on behalf of himself and all persons similarly situated, Plaintiff-Appellant v. SHENANDOAH VALLEY JUVENILE CENTER COMMISSION, Defendant-Appellee. CURRENT AND FORMER STATE ATTORNEYS GENERAL; ELECTED PROSECUTORS; CORRECTIONS LEADERS, CRIMINAL JUSTICE LEADERS; DISABILITY RIGHTS LEADERS, Amici Supporting Appellant, Case No. 19-1910. The U.S. Court of Appeals reversed the district court's grant of summary judgment. The questions presented are: (1) Whether professional judgment rather than deliberate indifference is the proper constitutional standard for a claim of inadequate medical care brought against a secure juvenile detention center by a minor immigrant detainee in federal custody; and (2) Whether a minor's claim for injunctive relief seeking constitutionally-adequate medical treatment from a secure juvenile detention center may be redressed by the Court without a parent, guardian, or legal custodian joined as a party to the case. As reported in the Class Action Reporter on Jan. 25, 2021, the Court of Appeals Fourth Circuit reversed the district court's grant of summary judgment. The matter was argued on October 28, 2020, and decided on January 12, 2021. The amended opinion was issued on January 14, 2021. Reversed and remanded by published opinion. Chief Judge Roger L. Gregory wrote the opinion, in which Judge Barbara Milano Keenan joined. Judge James Harvie Wilkinson III wrote a dissenting opinion. The Appellants are a class of unaccompanied immigrant children detained at Shenandoah Valley Juvenile Center, who challenge the adequacy of their medical care. They are immigrant children, who fled their native countries -- mainly Honduras, Guatemala, Mexico, and El Salvador -- after experiencing appalling horrors. After fleeing their native countries due to harrowing traumas, many of these children struggle with severe mental illnesses, resulting in frequent self-harm and attempted suicide. Under federal law, the Appellants are unaccompanied alien children: children under the age of 18, who have no lawful immigration status and no parent or legal guardian in the United States available to care for them (6 U.S.C. Section 279(g)(2). Upon arrival in the United States, they fall under the custody of the Department of Health and Human Service's Office of Refugee Resettlement ("ORR"). The Shenandoah Valley Juvenile Center ("SVJC") is a secure juvenile detention facility in Staunton, Virginia, and is run by the Shenandoah Valley Juvenile Center Commission, a governmental entity formed under Virginia law. It provides education, housing, and medical care to unaccompanied immigrant children who, in the discretion of ORR, require a secure placement due to safety concerns. SVJC also houses youth from surrounding jurisdictions, who have been charged with a crime but have not yet had their cases adjudicated. The Appellants filed a class action suit alleging, among other things, that the Commission fails to provide a constitutionally adequate level of mental health care due to its punitive practices and failure to implement trauma-informed care. The district court granted summary judgment to the Commission after finding that it provides adequate care by offering access to counseling and medication. But the district court incorrectly applied a standard of deliberate indifference when it should have determined whether the Commission substantially departed from accepted standards of professional judgment, Judge Gregory opines. Accordingly, the Appellate Court reversed and remanded for further proceedings so that the district court may apply the appropriate standard and consider all evidence relevant to it. Judge Wilkinson dissented stating that they -- judges -- should stick to what they are good at: applying precedent, interpreting statutes, and exercising traditional equitable powers. He notes that the case features an invitation to try their hand at institutional governance and to do something they are utterly unqualified to do -- determine what constitutes acceptable mental health care. He respects the majority's sincere and humane concerns. But it is staring at a host of unintended consequences. And under what rock is hidden its holding's relationship to law, he has no idea. By remanding in the face of the record, the majority urges courts to enter the business of second-guessing mental health treatment decisions. Because they are not remotely qualified to do that, he respectfully dissent, Judge Wilkinson states.[BN] Defendant-Appellee-Petitioner Shenandoah Valley Juvenile Center Commission is represented by: Jason Alan Botkins, Esq. LITTEN & SIPE, L.L.P. 410 Neff Avenue Harrisonburg, VA 22812 Telephone: (540) 437-3066 E-mail: jason.botkins@littensipe.com SHRI YAMUNA: Giles Suit Seeks to Certify Class of Delivery Drivers ------------------------------------------------------------------ In the class action lawsuit captioned as SPENCER GILES, individually and on behalf of similarly situated persons, v. SHRI YAMUNA ENTERPRISES, INC., et al., Case No. 1:20-cv-04489-ELR (N.D. Ga.), the Parties ask the Court to enter an order conditionally certifying this case as a collective action under the Fair Labor Standards Act (FLSA) and approving the Notice of Collective Action to: "current and former delivery drivers employed by Defendants;" The Plaintiff originally filed this case under the FLSA alleging minimum wage violations resulting from unreimbursed vehicle costs incurred on the job. A copy of the Parties motion dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3zSK73F at no extra charge.[CC] The Plaintiff is represented by: Andrew Weiner, Esq. WEINER & SAND LLC 800 Battery Avenue SE, Suite 100 Atlanta, Georgia 30339 Telephone: (404) 254-0842 Facsimile: (866) 800-1482 E-mail: aw@atlantaemploymentlawyer.com - and - Eli Karsh,Esq. LIBERMAN, GOLSTEIN & KARSH 225 South Meramec Avenue, Suite 1200 St. Louis, MO 63105 Telephone: (314) 433-9300 Facsimile: (314) 300-6262 E-mail: elikarsh@aol.com - and - Mark Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Telephone: (314) 997-9150 Facsimile: (314) 997-9170 E-mail: markp@wp-attorneys.com The Defendants are represented by Sean Keenan, Esq. Alexa L. Morris, Esq. CRUSER, MITCHELL, NOVITZ, SANCHEZ, CASTON & ZIMET, LLP Meridian II, Suite 2000 275 Scientific Drive Norcross, GA 30092 Telephone: (678) 684-2154 Facsimile: (404) 881-2630 E-mail: skeenan@cmlawfirm.com amorris@cmlawfirm.com SPA DINER: Moilan Hits Unpaid Overtime Wages, Missing Paystubs -------------------------------------------------------------- Denise Moilan, individually and on behalf of others similarly situated, Plaintiff, v. Spa Diner Hoboken Corp, Shawn McGarr and Ron Kutik, Defendants, Case No. 21-cv-13811 (D. N.J., July 19, 2021), seeks to recover unpaid minimum and overtime wages and spread-of-hours pay pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a diner, located in Hoboken, New Jersey under the name "Spa Diner" where Moilan was employed as a manager. He claims to have generally worked in excess of 40 hours a week without overtime for hours in excess of 40 hours per workweek and denied spread-of-hours premium for workdays exceeding 10 hours. He also claims to have never received wage statements and appropriate minimum wage. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Facsimile: (212) 317-1620 Email: michael@faillacelaw.com SPECIALIZED LOAN: Shea Seeks Extension to File Class Cert. Bid -------------------------------------------------------------- In the class action lawsuit captioned as STEPHEN SHEA, an individual, Plaintiff, individually and on behalf of all other persons similarly v. SPECIALIZED LOAN SERVICING L.L.C., Case No. 8:20-cv-01935-JSM-CPT (M.D. Fla.), the Plaintiff asks the Court to enter an order extending from August 13, 2021 to October 13, 2021 for filing his Motion for Class Certification. The Defendant SLS refuses to produce any meaningful class discovery in this case, even though it produced similar discovery in the parallel case of Quinn v. Specialized Loan Servicing LLC, 331 F.R.D. 126 (N.D. Ill. 2019). Class certification was granted in Quinn. SLS has refused to produce class discovery on basic issues such as numerosity. In Quinn, SLS was able to identify 5,622 persons as potential class members. Here, it refuses to identify anyone. As a result, over the last five months, the Plaintiff has spent hours and hours seeking to compel SLS to provide class discovery. On February 9, 2021, Plaintiff filed his first motion to compel class discovery. In response to the Magistrate's Court's Order of March 23, 2021, a Joint Notice was filed on April 7, 2021 to narrow the issues. On April 15, 2021, the Plaintiff filed a second Memorandum relating to the narrowed issues as ordered by the Magistrate on April 7, 2021. A copy of the the Plaintiff's motion dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3icHgfT at no extra charge.[CC] The Plaintiff is represented by: Young Kim, Esq. CONSUMER LAW ATTORNEYS 2727 Ulmerton Rd., Ste. 270 Clearwater, FL 33762 Telephone: (877) 241-2200 E-mail: litigation@consumerlawattorneys.com ykim@consumerlawattorneys.com - and - Howard B. Prossnitz, Esq. LAW OFFICES OF HOWARD B. PROSSNITZ PLLC 1014 Ontario Street Oak Park, IL 60302 E-mail: prossnitzlaw@gmail.com Telephone: (708) -203-5747 STATE FARM: Appeals Class Cert. Ruling in Jama Suit to 9th Cir. --------------------------------------------------------------- Defendant STATE FARM FIRE AND CASUALTY COMPANY filed an appeal from a court ruling entered in the lawsuit entitled FAYSAL A. JAMA, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant, Case No. 2:20-cv-00652-MJP, in the U.S. District Court for the Western District of Washington, Seattle. As reported in the Class Action Reporter, the District Court granted in part the Plaintiff's motion for class certification. The case involves Defendant State Farm Fire and Casualty Company's claims settlement process used to determine the actual cash value (ACV) of an insured's total loss vehicle. Plaintiff Faysal Jama attacks State Farm's practice of applying a "typical negotiation discount" and condition deductions to the comparable cars used to determine the ACV of an insured's total loss vehicle. These discounts appear in reports prepared by a third-party Audatex, which are referred to as "Autosource Reports." The Plaintiff alleges that valuations based on Autosource Reports with the typical negotiation discount and condition deductions violate Washington's insurance regulations. The Plaintiff pursues claims for: (1) breach of contract, (2) insurer bad faith, (3) breach of the duty of good faith and fair dealing, (4) violation of the Washington Consumer Protection Act, and (5) declaratory judgment. In the initial Motion, the Plaintiff sought to certify the following class: All persons and entities within the State of Washington that have made first-party property damage claims under contracts of automobile insurance with State Farm that provided for payment of the actual cash value of the policyholder's vehicle (less any applicable deductible) in the event of total loss, and (1) where policyholders experienced a total loss of their insured vehicle covered under such policy, (2) where such claims for total loss were evaluated by State Farm using the Autosource valuation system, and (3) where such claims were paid by State Farm to the policyholder or a lienholder without the parties agreeing to use, and using, an alternative appraisal process described in the policyholder's policy. The Defendant now seeks a review of the class certification order entered on July 1, 2021 by Judge Marsha J. Pechman. The appellate case is captioned as Faysal Jama v. State Farm Fire and Casualty Company, Case No. 21-80080, in the United States Court of Appeals for the Ninth Circuit, filed on July 15, 2021.[BN] Defendant-Petitioner STATE FARM FIRE AND CASUALTY COMPANY is represented by: Theodore J. Boutrous, Jr., Esq. GIBSON, DUNN & CRUTCHER, LLP 333 S Grand Avenue Los Angeles, CA 90071-3197 - and - Joseph D. Hampton, Esq. BETTS, PATTERSON & MINES, P.S. 701 Pike Street, Suite 1400 Seattle, WA 98101 Telephone: (206) 292-9988 E-mail: jhampton@bpmlaw.com - and - Peter W. Herzog, III, Esq. WHEELER TRIGG O'DONNELL LLP 211 N. Broadway, Suite 2825 St. Louis, MO 63102 Telephone: (314) 326-4129 E-mail: pherzog@wtotrial.com Plaintiff-Respondent FAYSAL A. JAMA, on behalf of himself and all other similarly situated, is represented by: Mark A. Trivett, Esq. BADGLEY MULLINS TURNER, PLLC 19929 Ballinger Way NE Shoreline, WA 98155 Telephone: (206) 621-6566 E-mail: mtrivett@badgleymullins.com - and - Daniel Whitmore, Esq. LAW OFFICE OF DANIEL WHITMORE 6840 Fort Dent Way, Suite 210 Tukwila, WA 98188 Telephone: (206) 329-8400 E-mail: dan@whitmorelawfirm.com SYNCHRONY FINANCIAL: Stichting Depositary Suit Underway ------------------------------------------------------- Synchrony Financial said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend a putative class action suit entitled, Stichting Depositary APG Developed Markets Equity Pool and Stichting Depositary APG Fixed Income Credit Pool v. Synchrony Financial et al. On November 2, 2018, a putative class action lawsuit, Retail Wholesale Department Store Union Local 338 Retirement Fund v. Synchrony Financial, et al., was filed in the U.S. District Court for the District of Connecticut, naming as defendants the Company and two of its officers. The lawsuit asserts violations of the Exchange Act for allegedly making materially misleading statements and/or omitting material information concerning the Company's underwriting practices and private-label card business, and was filed on behalf of a putative class of persons who purchased or otherwise acquired the Company's common stock between October 21, 2016 and November 1, 2018. The complaint seeks an award of unspecified compensatory damages, costs and expenses. On February 5, 2019, the court-appointed Stichting Depositary APG Developed Markets Equity Pool as lead plaintiff for the putative class. On April 5, 2019, an amended complaint was filed, asserting a new claim for violations of the Securities Act in connection with statements in the offering materials for the Company's December 1, 2017 note offering. The Securities Act claims are filed on behalf of persons who purchased or otherwise acquired Company bonds in or traceable to the December 1, 2017 note offering between December 1, 2017 and November 1, 2018. The amended complaint names as additional defendants two additional Company officers, the Company's board of directors, and the underwriters of the December 1, 2017 note offering. The amended complaint is captioned Stichting Depositary APG Developed Markets Equity Pool and Stichting Depositary APG Fixed Income Credit Pool v. Synchrony Financial et al. On March 26, 2020, the District Court recaptioned the case In re Synchrony Financial Securities Litigation and on March 31, 2020, the District Court granted the defendants' motion to dismiss the complaint with prejudice. On April 20, 2020, plaintiffs filed a notice to appeal the decision to the United States Court of Appeals for the Second Circuit. On February 16, 2021, the Court of Appeals affirmed the District Court's dismissal of the Securities Act claims and all of the claims under the Exchange Act with the exception of a claim relating to a single statement on January 19, 2018 regarding whether Synchrony was receiving pushback on credit from its retail partners. No further updates were provided in the Company's SEC report. Synchrony Financial, incorporated on September 12, 2003, is a consumer financial services company. The Company provides a range of credit products through programs it has established with a group of national and regional retailers, local merchants, manufacturers, buying groups, industry associations and healthcare service providers. The Company's revenue activities are managed through three sales platforms: Retail Card, Payment Solutions and CareCredit. It offers its credit products through its subsidiary, Bank. The company is based in Stamford, Connecticut. TEAMVIEWER US: Gershfeld Appeals Consumer Privacy Suit Dismissal ---------------------------------------------------------------- Plaintiff Jack Gershfeld filed an appeal from a court ruling entered in the lawsuit styled JACK GERSHFIELD, on behalf of himself and all other similarly situated individuals, Plaintiff v. TEAMVIEWER US, INC., and DOES 1-100, Defendant, Case No. 8:21-cv-00058-CJC-ADS, in the U.S. District Court for the Central District of California, Santa Ana. As reported in the Class Action Reporter on Apr. 30, 2021, Judge Cormac J. Carney of the U.S. District Court for the Central District of California, Southern Division, denied the Plaintiff's motion to remand based on his First Amended Complaint. Plaintiff Gershfield brings the putative class action against Defendant Teamviewer US and unnamed Does, alleging violations of California's Unfair Competition Law ("UCL") and California's Consumer Privacy Act ("CCPA"). The Plaintiff initially filed his claims in state court but the Defendant removed the case, asserting jurisdiction under the Class Action Fairness Act ("CAFA"). On Sept. 19, 2019, the Plaintiff purchased a year-long subscription to the Defendant's remote-access software. To complete the purchase, the Plaintiff was required to provide his name as well as his credit card number, expiration date, and verification code. A year later, in September 2020, the Plaintiff alleges that the Defendant renewed his subscription without his authorization by disclosing his private credit card information to the Defendant's credit card processor. The Plaintiff alleges that the unauthorized exfiltration and disclosure of his personal information to a third party violated the CCPA. He also alleges that the Defendant violated the UCL by, among other things, unlawfully charging him for services that he did not authorize, need, or want. The Plaintiff brings his claims on behalf of all similarly situated individuals. His original Complaint defined his UCL subclass as all of the Defendant's California customers "on and after Dec. 1, 2016, who were charged for the Defendant's software subscription [and] did not want, need or use said software." It also defined his CCPA subclass to include all of the Defendant's California customers "on and after Jan. 1, 2020, whose accounts, credit or debit cards were charged without their affirmative, explicit and unequivocal authorization." However, after the Court denied the Plaintiff's previous motion to remand -- concluding that the preponderance of the evidence showed that the amount in controversy met CAFA's $5 million requirement -- the Plaintiff narrowed the definition of both subclasses. The class definitions now include only customers who were charged for the Defendant's software and "communicated that they did not want, need, or use said software by requesting a refund. The Plaintiff now seeks a review of the Court's Order dated June 24, 2021, granting Defendant's motion to dismiss the case with prejudice. The appellate case is captioned as Jack Gershfeld v. Teamviewer US, Inc., et al., Case No. 21-55753, in the United States Court of Appeals for the Ninth Circuit, filed on July 19, 2021. The briefing schedule in the Appellate Case states that: -- Appellant Jack Gershfeld Mediation Questionnaire was due July 26, 2021; -- Appellant Jack Gershfeld opening brief is due on September 17, 2021; -- Appellees Does and Teamviewer US, Inc. answering brief is due on October 18, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant JACK GERSHFELD, individually, and on behalf of a class of similarly situated, is represented by: Vladimir Khiterer, Esq. KHITERER, INC. 2901 West Coast Highway Newport Beach, CA 92663 Telephone: (949) 631-6161 E-mail: vladi@khiterer.com Defendant-Appellee TEAMVIEWER US, INC. is represented by: Randall W. Edwards, Esq. Adam Kaplan, Esq. Matthew David Powers, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8716 E-mail: redwards@omm.com akaplan@omm.com mpowers@omm.com TENNESSEE: Murphy Suit Asserts 4th and 5th Amendment Violations ---------------------------------------------------------------- Danny Royce Murphy, on Behalf of Himself and All Other Persons Similarly Situated v. Jackson Police Department, John R. Mehr, Sheriff, and Tennessee Department of Safety, Case No. 1:21-cv-01105-SHM-tmp (W.D. Tenn., July 20, 2021) arises under the United States Constitution, in particular the Fourth Amendment protections against unwarranted search and seizure and Fifth Amendment guarantee against deprivation of liberty without due process of law. According to the complaint, around 10:00 a.m. on June 25, 2021, Plaintiff was stopped on a street in Jackson, Tennessee by a Jackson Police Department patrol car for what has been claimed to be a traffic stop. Officer William Seward presented himself at Plaintiff's window asking for a license and other documents. Plaintiff is not a licensee and at the time of this stop was not engaged in a business or occupation requiring the license. Officer Seward gave indication that he was aware that Plaintiff is not a licensee. Within a few minutes ofﬁcer Seward took Plaintiff into custody. Seward did not present Plaintiff with a warrant or other authorization to search and seize Plaintiff. At Plaintiff's request, Mr. Ed Hirth and Mr. Jerry Griggs came to the location to take possession of Plaintiff's automobile. After Mr. Hirth took possession of Plaintiff's automobile, officer Seward and his trainee took Plaintiff to the Madison County Criminal Justice Complex and had him booked into jail at around 11:00 a.m. on June 25, 2021. This appeared to have been done on officer Seward's say so without a magistrate's order of commitment. Officer Seward followed neither the state's procedures for an arrest nor the city's procedures for an arrest for a violation of a trafﬁc law. Thereby, officer Seward violated provisions of the Fifth Amendment of the United States Constitution and deprived Plaintiff of liberty without due process of law. Officer Seward, having no warrant to seize and search Plaintiff, violated provisions of the Fourth Amendment of the United States Constitution and deprived Plaintiff of the guaranteed protection against unreasonable searches and seizures, the complaint states. [BN] TEREX CORP: Kyes Suit Seeks to Recover Unpaid Overtime Wages ------------------------------------------------------------ Dan Kyes, individually and for others similarly situated, Plaintiffs, v. Terex Corporation, Defendant, Case No. 21-cv-00951 (W.D. Wash., July 16, 2020), seeks to recover unpaid overtime for all hours worked, including those in excess of 40 in a workweek, all unused rest breaks and meal breaks as required by the Fair Labor Standards Act and the Revised Code of Washington and Washington's Minimum Wage Act and any relevant regulations and/or rules adopted by the Washington Director of Labor and Industries. Terex provides aerial work platforms and materials to companies in construction, maintenance, manufacturing and energy industries. Kyes was a Production Supervisor for Terex. He claims to have regularly worked 55 to 60 hours in a week without overtime. [BN] Plaintiffs are represented by: Nicholas D. Kovarik, Esq. PISKEL YAHNE KOVARIK, PLLC 522 W. Riverside Ave., Suite 700 Spokane, WA 99201 Tel: (509) 321-5930 Fax: (509) 321-5935 Email: nick@pyklawyers.com TESLA INC: Malek Balks at Solar Roof System Price Hike ------------------------------------------------------ Babak Malek, individually and on behalf of all similarly situated individuals, Plaintiff, v. Tesla, Inc., Defendant, Case No. 21-cv-05528 (N.D. Cal., July 20, 2021), seeks restitution and/or disgorgement, equitable relief as appropriate, an award of costs, expenses and attorneys' fees as permitted by law and such other or further relief for breach of contract and violations of the California Business and Professions Code. Tesla manufacturers and sells a new integrated solar roofing technology called the Solar Roof for residential homes which incorporates photovoltaic solar cells into individual shingles, making the Solar Roof's appearance similar to a traditional roof and thus more aesthetically pleasing. Babak Malek signed a contract with Tesla for the purchase and installation of a solar roof system for his residence in West Hills, California in November 2020. Malek claims that, after finalizing the purchase and installation agreements with customers, Tesla raised the product's price inexplicably, unilaterally changing the terms of the parties' purchase agreements, as much as a 100% increase for many customers, amounting to thousands of dollars in unanticipated costs. [BN] Plaintiff is represented by: Justin T. Berger, Esq. Sarvenaz J. Fahimi, Esq. Kelsey L. Campbell, Esq. COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center 840 Malcolm Road Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 Email: jberger@cpmlegal.com sfahimi@cpmlegal.com kcampbell@cpmlegal.com THINX INC: Deadline for Class Cert. Filing Due April 22, 2022 ------------------------------------------------------------- In the class action lawsuit captioned as Destini Kanan, et al., v Thinx Inc., Case No. 2:20-cv-10341-JVS-JPR (C.D. Cal.), the Hon. Judge James V. Selna entered an order setting the class certification related dates: -- Jury Trial: February 7, 2023 -- Final PreTrial Conference January 23, 2023 -- Deadline to Move for Class April 22, 2022 Certification and for Plaintiff's Class Certification Expert Reports -- Opposition to Class June 24, 2022 Certification and for Thinx's Class Certification Experts -- Reply in Support of Class July 22, 2022 Certification The Court further orders settlement procedure pursuant to Local Rule 16-15 ADR No. 3, private mediation. Within 7 days, Counsel shall meet and confer and submit a stipulation and proposed order with the balance of the case management dates. Scheduling Conference set for July 26, 2021 at 10:30 a.m. is ordered vacated, Judge Selna says. A copy of the Court's civil minutes -- general dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3j0tAEg at no extra charge.[CC] TRADER JOE'S: Ninth Circuit Affirms Dismissal of Moore Class Suit ----------------------------------------------------------------- In the lawsuit entitled LYNN MOORE, SHANQUE KING, and JEFFREY AKWEI, Plaintiffs-Appellants v. TRADER JOE'S COMPANY, Defendant-Appellee, Case No. 19-16618 (9th Cir.), the United States Court of Appeals for the Ninth Circuit affirms the dismissal of the action without leave to amend. Circuit Judge Kim McLane Wardlaw, writing for the Panel, notes that the parties find themselves in a sticky situation. Trader Joe's markets its store brand Manuka honey as "100% New Zealand Manuka Honey" or "New Zealand Manuka Honey," but the Plaintiffs, on behalf of a putative class, claim that because Trader Joe's Manuka Honey actually consists of only between 57.3% and 62.6% honey derived from Manuka flower nectar, Trader Joe's engaged in "false, misleading, and deceptive marketing" of its Manuka honey. Stung by these accusations, Trader Joe's counters that its labeling is consistent with all applicable Food and Drug Administration ("FDA") guidelines, which permit labeling honey by its "chief floral source" and with which Trader Joe's contends its Manuka honey plainly complies, as the Plaintiffs' own tests reveal. Indeed, these guidelines account for the fact that busy bees cannot be prevented from foraging on different types of flowers, despite their keepers' best efforts. As a result, it is impossible for bees to produce honey that is 100% derived from the Manuka flower. Trader Joe's, therefore, moved to dismiss the Plaintiffs' complaint, arguing its Manuka Honey label is accurate, i.e., its product is 100% honey whose chief floral source is Manuka, and that no reasonable consumer would believe that it was marketing a product that is impossible to create. The district court agreed and dismissed the action without leave to amend. Because it concludes that Trader Joe's Manuka Honey labeling would not mislead a reasonable consumer, the Court of Appeals affirms. Background Trader Joe's primarily sells grocery products, among them its own brand of Manuka Honey. Trader Joe's branded Manuka Honey is labeled with a UMF grade of 10+, a relatively low grade, and sells for the comparatively low price of $13.99 per jar, or $1.59 per ounce. Some jars of Trader Joe's Manuka Honey are labeled as "100% New Zealand Manuka Honey" while others are simply labeled "New Zealand Manuka Honey." The ingredient statement, however, is the same across all jars of Trader Joe's Manuka Honey, and lists Manuka honey as the sole ingredient. Plaintiffs Lynn Moore, Jeffrey Akwei, and Shanque King, allege that they were misled by the product's label when they purchased Trader Joe's Manuka Honey. In July 2018, the Plaintiffs filed this lawsuit against Trader Joe's on behalf of a putative class of all United States Trader Joe's consumers in the District Court for the Northern District of California, claiming that Trader Joe's engaged in deceptive marketing practices in violation of a variety of state consumer protection laws. All three Plaintiffs claim they were denied the benefit of their bargain because they paid a premium price for Trader Joe's Manuka Honey that they would not have paid but for the label's allegedly misleading representations. In June 2019, the district court granted Trader Joe's motion to dismiss the Plaintiffs' complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). First, the district court concluded that, in light of the Plaintiffs' clarification at the hearing that their allegations of "adulteration" rested on bees visiting different floral sources and not on the manufacturer's mixing of honey from different floral sources, the Plaintiffs had failed to allege adulteration under 21 U.S.C. Section 342(b). Second, for the mislabeling claims, the district court concluded that Trader Joe's representations were not misleading to a reasonable consumer as a matter of law, and, alternatively, that the Plaintiffs' state law causes of actions are preempted by the Federal Food, Drug, and Cosmetic Act ("FDCA"), as amended by the Nutrition Labeling and Education Act ("NLEA"). Discussion The Court of Appeals addresses one primary issue on appeal: whether the district court erred in holding that Trader Joe's representations on its label and ingredient statement were not misleading as a matter of law. Because it concludes Trader Joe's representations are not misleading to a reasonable consumer as a matter of law, the Court of Appeals does not reach whether the Plaintiffs' claims are also preempted by federal labeling laws. Judge Wardlaw opines that the district court did not err in concluding that Trader Joe's Manuka Honey label, which advertised its contents as "100% New Zealand Manuka Honey," was not misleading to a reasonable consumer as a matter of law. The district court based much of its decision on the FDA's Honey Guidelines. The Honey Guidelines provide that honey, as a single-ingredient food, must be labeled "honey," which is its common or usual name. The Guidelines also permit honey to be labeled with the name of a plant or blossom if the producer has reason to believe the plant or blossom designated on the label is the chief floral source of the honey. While the FDA does not specifically define "chief floral source," the Court of Appeals interprets it to mean that the principal source of the honey is a single floral source. Thus, by the FDA's own definition, Manuka honey is a honey whose "chief floral source" is the Manuka flower, Judge Wardlaw explains. Trader Joe's Manuka Honey meets this standard, Judge Wardlaw finds. As the Plaintiffs' own tests reveal, Trader Joe's Manuka Honey is derived from between 57.3-62.6% Manuka flower nectar (as estimated by pollen count); therefore, the honey's "chief floral source" is the Manuka flower. Judge Wardlaw notes that after foraging for pollen from different flowering plants, bees do not segregate the nectar from different floral sources before producing honey. Therefore, as the Plaintiffs conceded, there is no such thing as "pure" batches of honey made from only Manuka flower nectar and other "pure" batches of honey made from other different floral sources. Thus, Judge Wardlaw holds, the district court was plainly correct in concluding that Trader Joe's label was accurate because there is no dispute that all of the honey involved is technically manuka honey, albeit with varying pollen counts. Even though Trader Joe's front label is accurate under the FDA's guidelines, the Plaintiffs maintain that "100% New Zealand Manuka Honey" could nonetheless mislead consumers into thinking that the honey was "100%" derived from Manuka flower nectar. Under the consumer protection laws of California, New York, and North Carolina, the states in which the Plaintiffs reside, claims based on deceptive or misleading marketing must demonstrate that a "reasonable consumer" is likely to be misled by the representation. Judge Wardlaw notes that reasonable consumers would necessarily require more information before they could reasonably conclude Trader Joe's label promised a honey that was 100% derived from a single, floral source. And, although Trader Joe's ingredient label listed "Manuka Honey" as the only ingredient, which the Plaintiffs argue reinforces the deception created by the front label, information available to a consumer is not limited to the physical label and may involve contextual inferences regarding the product itself and its packaging. Judge Wardlaw also holds, among other things, that the inexpensive cost of Trader Joe's Manuka Honey would signal to a reasonable consumer that the product has a relatively lower concentration of honey derived from Manuka flower nectar. Trader Joe's Manuka Honey costs just $13.99 per jar ($1.59 per ounce) while a jar of approximately 92% honey derived from Manuka flower nectar, as estimated by pollen count, costs around $266 ($21.55 per ounce). For these reasons, a reasonable consumer could not be left with the conclusion that "100% New Zealand Manuka Honey" represents a claim that the product consists solely of honey derived from Manuka. Rather, a reasonable consumer would be left only with the conclusion that "100% New Zealand Manuka Honey" means that it is 100% honey whose chief floral source is the Manuka plant, which is an accurate statement, as the Plaintiffs themselves concede. Thus, the district court did not err in dismissing the Plaintiffs' claims regarding the front label, Judge Wardlaw holds. Judge Wardlaw also finds that the district court also properly held that Trader Joe's representation of "Manuka Honey" as the sole ingredient on its ingredient statement was not misleading as a matter of law. In sum, the district court properly dismissed this action under Federal Rule of Civil Procedure 12(b)(6) because Trader Joe's representations on the front label and the ingredients statement of its Manuka Honey product are not misleading to a reasonable consumer as a matter of law, Judge Wardlaw notes. The Plaintiffs have not alleged, and cannot allege, facts to state a plausible claim that Trader Joe's Manuka Honey is false, deceptive, or misleading. Accordingly, the Court of Appeals need not reach the district court's alternative holding that the Plaintiffs' claims are also preempted by federal labeling laws. Affirmed. The Hon. Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. A full-text copy of the Court's Opinion dated July 15, 2021, is available at https://tinyurl.com/zchzdubf from Leagle.com. C. K. Lee -- cklee@leelitigation.com -- Lee Litigation Group PLLC, in New York City; David Alan Makman -- david@makmanlaw.com -- Law Offices of David A. Makman, in Redwood City, California; for Plaintiffs-Appellants. Dawn Sestito -- dsestito@omm.com -- and Collins Kilgore -- ckilgore@omm.com -- O'Melveny & Myers LLP, in Los Angeles, California, for Defendant-Appellee. TWIN CITY: Wins Bid for Judgment on Pleadings in Sweetberry Suit ---------------------------------------------------------------- In the lawsuit titled SWEETBERRY HOLDINGS LLC, Plaintiff v. TWIN CITY FIRE INSURANCE COMPANY, Defendant, Case No. 20-08200 (FLW) (D.N.J.), Chief District Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey grants the Defendant's Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff Sweetberry Holdings, LLC, on behalf of itself and all persons and entities with coverage under a property insurance policy issued by Defendant Twin City Fire Insurance Company ("Defendant"), filed this putative class action seeking coverage for losses sustained as a result of the 2019 novel coronavirus pandemic. The Plaintiff is a New Jersey company that owns and operates ice cream stores located in New Jersey, Florida, and Illinois. The Defendant issued to the Plaintiff Policy No. 13 SBA AB3313 for the period of Oct. 23, 2019, through Oct. 23, 2020, which included coverage for 13 of the Plaintiff's locations. The Policy provides that the Defendant will "pay for all losses caused by a 'Covered Cause of Loss,' defined as 'risks of direct physical loss' unless the loss is excluded or limited in the Policy." The Policy covers "Business Income" lost during the suspension of operations, "Extra Expenses" that a business "would not have incurred if there had been no direct physical loss or physical damage to the property," and "Business Income from Dependent Properties." Dependent Property is defined by the Policy as "property owned, leased or operated by others whom you depend on to: (a) Deliver materials or services to you or to others for your account; (b) Accept your products or services; (c) Manufacture your products for delivery to your customers under contract for sale; or (d) Attract customers to your business premises." The Policy also extends coverage to losses sustained "when access is specifically prohibited by order of a civil authority as the direct result of a Covered Cause of Loss." On March 9, 2020, New Jersey Governor Philip D. Murphy issued Executive Order 103, which declared a state of emergency and public health emergency in response to the COVID-19 pandemic. Thereafter, on March 21, 2020, Governor Murphy issued Executive Order 107, "requiring all resident to stay home, prohibiting all social gatherings, and closing all non-essential retail businesses, including Plaintiff's ice cream stores." Similar orders were issued nationwide by state and local authorities throughout March and April 2020 (the "Closure Orders"). As a result of the presence of COVID-19 and the Closure Orders, the Plaintiff alleges that it suspended business operations and sustained business losses at the premises of its Dependent Properties. Relevant here, the Policy is modified by a form entitled "Limited Fungi, Bacteria or Virus Coverage" ("Virus Exclusion"). The Virus Exclusion specifies that it applies to and modifies all coverages in the Special Property Coverage Form, including the Business Income, Civil Authority, Extra Expense, and Dependent Properties coverages. Later, in an exception to this exclusion, the Policy specifies that the "exclusion does not apply: (1) When 'fungi', wet or dry rot, bacteria or virus results from fire or lightning; or (2) To the extent that coverage is provided in the Additional Coverage - Limited Coverage for 'Fungi', Wet Rot, Dry Rot, Bacteria and Virus ("Limited Coverage provision") with respect to loss or damage by a cause of loss other than fire or lightning." This Limited Coverage provision is a carveout to the Virus Exclusion that provides up to $50,000 in coverage but "only applies when the virus is the result of one or more of the following causes (1) A 'specified cause of loss' other than fire or lightning; (2) Equipment Breakdown Accident occurs to Equipment Breakdown Property, if Equipment Breakdown applies to the affected premises." "Specified cause of loss" is defined in the Policy as: "Fire; lightning; explosion, windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage." The Plaintiff submitted a claim under the Policy for losses sustained as a result of the Closure Orders, which was subsequently denied by the Defendant. Thereafter, on July 2, 2020, the Plaintiff filed this putative class action against the Defendant. The Plaintiff brings four breach of contract claims, asserting that the Defendant breached its obligations to provide coverage under the (i) business income, (ii) civil authority, (iii) extra expense, and (iv) dependent properties provisions. The Plaintiff further seeks a declaration that the "losses incurred in connection with the Closure Orders and the necessary interruption of their businesses stemming from the COVID-19 pandemic are insured losses under Defendant's policies." The Plaintiff brings all its claims individually and on behalf of a proposed class of businesses with the same policy that have suffered losses due to COVID-19 related closures. The Defendant moves for judgment on the pleadings on both the individual and class claims. Discussion In its Complaint, the Plaintiff asserts that COVID-19 is a "covered cause of loss" because the Policy contains no relevant virus exclusion. The Plaintiff further alleges that the presence of COVID-19 caused direct physical loss of and damage to the Insured Property under the Policy. Additionally, the Plaintiff contends that the Closure Orders of civil authorities, in responding to this "covered cause of loss," caused the Plaintiff to sustain a suspension of business operations, sustained losses of business income, and incur extra expenses. The Plaintiff claims that, because these losses are covered under the Policy, it is entitled to receive the benefit of the coverage. The Defendant, however, argues that the Virus Exclusion precludes any coverage for the Plaintiff's losses. Generally, the Policy's Virus Exclusion applies to, and modifies, all coverage under the Policy. As such, if the Virus Exclusion is determined to be enforceable, and specifically applicable to the Plaintiff's claims, it will dispose of the case, Judge Wolfson notes, citing Garmany of Red Bank, Inc. v. Harleysville Ins. Co., No. 20-8678, 2021 WL 1040490, at *4 (D.N.J. Mar. 18, 2021). At issue is whether this exclusion applies. The Plaintiff attacks the enforceability of the Policy's Virus Exclusion on two grounds. First, the Plaintiff argues that the Virus Exclusion is ambiguous and deprives the insured of its "reasonable expectation that, in at least some circumstances, it would afford coverage for loss of property caused by a virus." Second, the Plaintiff argues that the Limited Coverage provision of the Virus Exclusion is "illusory" because, despite a policyholder's reasonable expectation of coverage, "the Policy appears to make such [potential] coverage unattainable." As written, Judge Wolfson does not find the Virus Endorsement to be genuinely ambiguous. She explains that a genuine ambiguity exists in an insurance contract "where the phrasing of the policy is so confusing that the average policyholder cannot make out of the boundaries of coverage," citing Lee v. Gen. Acc. Ins. Co., 337 N.J.Super. 509, 513 (App. Div. 2001). Judge Wolfson opines that here, the Virus Exclusion is clear that the Defendant will not pay for losses caused by a virus except in certain, specifically enumerated circumstances. Notably, other courts have considered identical (and similar) virus exclusions and found them to be applicable to losses sustained as a result COVID-19-related closure orders. The exclusion plainly applies here, Judge Wolfson holds. The Plaintiff's losses were caused by the COVID-19 virus. Moreover, there is no allegation that any "specified cause of loss," as defined by the Policy, occurred as a result of the COVID-19 virus. Accordingly, the Virus Exclusion applies to bar coverage. Finally, Judge Wolfson notes, as a point of clarification, the Virus Exclusion need not explicitly refer to a pandemic to be applicable. Although the Plaintiff does not explicitly make the argument that the virus exclusion is inapplicable because it does not address a pandemic, this framing is suggested when it claims that the Policy is illusory because there is no conceivable way that the losses caused by a viral pandemic could ever be the result of any specified cause of loss in the Policy. Consistent with numerous opinions addressing COVID-19 insurance claims, this Court will not draw a distinction between losses stemming from a virus or a pandemic in determining the applicability of a Virus Exclusion clause. Thus, the Virus Exclusion unambiguously applies to loss stemming from the COVID-19 pandemic. The Plaintiff alleges losses due only to COVID-19, not from any specified cause of loss as defined in the Policy. Accordingly, the Court finds that the Virus Exclusion is applicable to the Plaintiff's losses and, thus, bars coverage. The Plaintiff next argues that, even if the Virus Exclusion bars their claims, they are entitled to coverage under the Policy's Limited Coverage exception to the Virus Exclusion. The Plaintiff, however, does not allege that the virus was caused by any specified cause of loss. Instead, it argues that the requirement is impossible to satisfy and, thus, affords illusory coverage in violation of New Jersey law. Judge Wolfson finds that the Plaintiff cannot demonstrate that coverage is impossible to trigger, and thus illusory, under the Limited Coverage provision. She notes that coverage under an insurance policy is considered "illusory" where a premium is paid for a particular type of coverage and that coverage turns out to be functionally nonexistent. Judge Wolfson holds that the Plaintiff has failed to demonstrate that coverage under the Limited Coverage provision is impossible and has, therefore, failed to show that coverage under the Policy is illusory. Accordingly, the Court declines to find coverage based on the Limited Coverage provision. Because the Court finds that the Virus Exclusion is both enforceable and bars coverage of its claims, the Plaintiff has failed to state a claim for declaratory relief. The Plaintiff's final argument that its reasonable expectations were not satisfied by the application of Virus Exclusion coverage is similarly unpersuasive, Judge Wolfson holds, citing Body Physics v. Nationwide Ins., No. 20-9231, 2021 WL 912815, at *6 (D.N.J. Mar. 10, 2021). It is well-settled that the reasonable expectations of the insured are only relevant when a genuine ambiguity exists in the insurance policy. Therefore, the Court will not consider the reasonable expectations of the parties; rather the plain, unambiguous language of the Virus Exclusion applies, and it bars coverage. For the reasons set forth, the Defendant's Motion for Judgment on the Pleadings is granted. The Plaintiff's Complaint is dismissed in its entirety. A full-text copy of the Court's Opinion dated July 19, 2021, is available at https://tinyurl.com/37mpehca from Leagle.com. TWO RIVERS: Paulson Seeks Initial OK of Class Settlement -------------------------------------------------------- In the class action lawsuit captioned as JOHN PAULSON, Individually and on Behalf of all Others Similarly Situated, v. TWO RIVERS WATER AND FARMING COMPANY, JOHN R. MCKOWEN, WAYNE HARDING and TIMOTHY BEALL, Case No. 1:19-cv-02639-PAB-NYW (D. Colo.), the Plaintiff asks the Court to enter an order: 1. preliminary approving the proposed Settlement; 2. certifying the Settlement Class; and 3. appointing Plaintiff as class representative and Class Counsel as class counsel; and 4. approving the form and manner of providing Notice of the Settlement to the Settlement Class. The Plaintiff initiated the Action on August 13, 2019, by filing a class action complaint against the Defendants Two Rivers, McKowen, Harding, and Beall arising out of the Plaintiff's purchase of securities in GrowCo. The Plaintiff's amended complaint alleges that Defendants McKowen, Harding and Beall were each officers and control persons of Two Rivers, and sold and promoted the Offerings to Plaintiff and the class while omitting material information about Mr. McKowen's background. The circumstances that gave rise to the Offerings are as follows. On November 6, 2012, Colorado Amendment 64, a ballot initiative allowing for recreational use of marijuana throughout the State of Colorado, was passed. In May of 2014, Two Rivers and McKowen formed GrowCo to capitalize on Colorado's burgeoning marijuana business. A copy of the Plaintiff's motion dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/3xcOEfQ at no extra charge.[CC] The Plaintiff is represented by: Steve A. Miller, Esq. STEVE A. MILLER, P.C. 162 Larimer St., Suite 2906 Denver, CO 80202 Telephone: (303) 892-9933 Facsimile: (303) 892-8925 E-mail: Sampc01@gmail.com - and - Paul J. Scarlato, Esq. GOLDMAN SCARLATO & PENNY, PC 8 Tower Bridge, Suite 1025 161 Washington Street Conshohocken, PA 19428 Telephone: (484) 342-0700 E-mail: scarlato@lawgsp.com - and - Alan L. Rosca, Esq. GOLDMAN SCARLATO & PENNY, PC 23250 Chagrin Blvd. Suite 100 Beachwood, OH 44122 Telephone: (484) 342-0700 E-mail: rosca@lawgsp.com - and - J. Barton Goplerud, Esq. Brian O. Marty, Esq. SHINDLER ANDERSON GOPLERUD & WEESE P.C. 5015 Grand Ridge Dr., Suite 100 West Des Moines, IA 50265 E-mail: goplerud@sagwlaw.com marty@sagwlaw.com UNION PACIFIC: DeFries' Failure to Accommodate Claim Dismissed -------------------------------------------------------------- The U.S. District Court for the District of Oregon dismisses the Plaintiff's failure to accommodate claim in the lawsuit titled NICHOLAS DEFRIES, Plaintiff v. UNION PACIFIC RAILROAD COMPANY, Defendant, Case No. 3:21-cv-205-SB (D. Or.). Defendant Union Pacific Railroad Company filed a motion to dismiss Plaintiff Nicholas DeFries' failure to accommodate a disability claim under the Americans with Disabilities Act (ADA) as time barred. The Plaintiff responded that the statute of limitations on his claim was tolled during the period of time he was part of a class in a putative class action, which has since been decertified (Quinton Harris, et al. v. Union Pac. R.R. Co., Case No. 8:16-cv-381 (D. Neb.)). The Harris action did not assert a failure to accommodate claim on behalf of the class. On June 4, 2021, U.S. Magistrate Judge Stacie F. Beckerman issued Findings and Recommendations, recommending that the Court grant the Defendant's motion and dismiss the Plaintiff's failure to accommodate claim. Under the Federal Magistrates Act, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." If a party files an objection to a magistrate judge's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review, District Judge Michael H. Simon states, citing Thomas v. Arn, 474 U.S. 140, 152 (1985). The Plaintiff timely filed an objection to which the Defendant responded. The Plaintiff objects to Judge Beckerman's conclusion that the statute of limitations on his failure to accommodate claim was not tolled for the period of time between his alleged injury and class decertification in the Harris action. The Plaintiff argues that Judge Beckerman misapplied applicable Ninth Circuit law to find that a claim that is not identical to the claim brought in the class action is not tolled during the pendency of the class action, under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). Instead, the Plaintiff argues that any claim that is based on the "same evidence, memories, and witnesses" is tolled, even if it is a cause of action not asserted on behalf of the class in the class action, and that the Plaintiff's failure to accommodate claim is based on the same evidence, memories, and witnesses as the disparate treatment claims brought in the Harris class action. The Defendant responds that Judge Beckerman was correct that American Pipe tolling only applies to claims previously asserted on behalf of the class. Defendant further argues that even if the Court found that the tolling rule applied to claims based on the same "evidence, memories, and witnesses" as the class claims, the Plaintiff's failure to accommodate claim would not meet this test. The failure to accommodate claim relates to different actions in a different time period and asks the Court to examine different elements than the disparate treatment and disparate impact claims. Upon the Plaintiff's objection, the Court reviewed Judge Beckerman's finding de novo. The Court adopts Judge Beckerman's finding and recommendation and grants the Defendant's Motion to Dismiss the Plaintiff's failure to accommodate claim. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/5y7n4sff from Leagle.com. Anthony S. Petru -- petru@hmnlaw.com -- and Gavin Barney -- barney@hmnlaw.com -- HILDEBRAND McLEOD & NELSON, 350 Frank H. Ogawa Plaza, 4th Floor, in Oakland, California 94612. James H. Kaster -- kaster@nka.com -- and Lucas J. Kaster -- lkaster@nka.com -- NICHOLS KASTER, PLLP, 4700 IDS Center, 80 South Eighth Street, in Minneapolis, Minnesota 55402, Of Attorneys for the Plaintiff. William H. Walsh -- wwalsh@cozen.com -- and Connor D. Rowinski -- crowinski@cozen.com -- COZEN O'CONNOR, 999 Third Avenue, Suite 1900, in Seattle, Washington 98104, Of Attorneys for the Defendant. UNISEA INC: Appeals Arbitration Bid Denial in Ohring FLSA Suit -------------------------------------------------------------- Defendant Unisea, Inc. filed an appeal from a court ruling entered in the lawsuit styled AMICHAI OHRING, Plaintiff v. UNISEA, INC.; and Does 1 through 100, inclusive, Defendants, Case No. 2:21-cv-00359-TSZ, in the U.S. District Court for the Western District of Washington, Seattle. The lawsuit is a class action complaint brought against the Defendants for their alleged intentional and willful violation of the Fair Labor Standards Act in 1938. The Plaintiff was employed by the Defendant as a seafood processor from 2020 until the present. The Plaintiff alleges that the Defendant denied her and other similarly situated seafood processors compensation for the time they spent donning and doffing gear prior to clocking in or after clocking out that was integral and indispensable part of their principal activities. Despite regularly working in excess of 40 hours per week, the Plaintiff and other seafood processors were not properly paid overtime at one and one-half times their regular rate of pay for all hours they worked over 40 in a workweek, the Plaintiff adds. The Plaintiff seeks unpaid wages and liquidated damages for her and other similarly situated seafood processors, as well as pre- and post-judgment interest, attorneys' fees, costs, and expenses, and other relief as the Court may deem just and proper. As reported in the Class Action Reporter on July 28, 2021, Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, denied Unisea's Motion to Compel Arbitration. Judge Zilly determined that the parties did not have a valid agreement to arbitrate. Accordingly, he need not address whether the parties agreed to classwide arbitration and denied Unisea's request for leave to file a separate motion for attorney's fees. The Defendant now seeks a review of the order entered by Judge Zilly. The appellate case is captioned as Amichai Ohring v. Unisea, Inc., Case No. 21-35591, in the United States Court of Appeals for the Ninth Circuit, filed on July 22, 2021. The briefing schedule in the Appellate Case states that: -- Appellant Unisea, Inc. Mediation Questionnaire was due July 29, 2021; -- Appellant Unisea, Inc. opening brief is due on September 27, 2021; -- Appellee Amichai Ohring answering brief is due on October 27, 2021; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Defendant-Appellant UNISEA, INC. is represented by: James Derek Little, Esq. Peter Montine, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue Seattle, WA 98104 Telephone: (206) 223-1313 E-mail: dlittle@karrtuttle.com pmontine@karrtuttle.com Plaintiff-Appellee AMICHAI OHRING, individually and on behalf of other similarly situated individuals, is represented by: Robert S. Arns, Esq. Jonathan Ellsworth Davis, Esq. ARNS LAW FIRM 515 Folsom St., 3rd Floor San Francisco, CA 94105 Telephone: (415) 495-7800 E-mail: rsa@arnslaw.com jed@arnslaw.com - and - Dan Drachler, Esq. LIEFF CABRASER HEIMANN AND BERNSTEIN, LLP 1904 3rd Avenue, Suite 1030 Seattle, WA 98101 Telephone: (206) 895-5005 E-mail: ddrachler@zsz.com UNITED AMERICAN: Court Partly Approves Settlement in Jones Suit --------------------------------------------------------------- In the class action lawsuit captioned as ANTWAUN JONES, v. UNITED AMERICAN SECURITY, LLC, Case No. 1:20-cv-00440-JG (N.D. Ohio), the Hon. Judge James S. Gwin entered an order: 1. Approving in part the parties' proposed settlement; 2. Awarding the Plaintiff's attorneys 30% of the settlement fund, rather than the requested one-third. The difference of this downward departure should be included in the remaining settlement fund disbursed to Class and Collective Members; and 3. Retaining jurisdiction to enforce the parties' settlement terms. In this instance, the Plaintiff counsel seeks one third of the $350,000 gross settlement fund, or $116,666.67. The Plaintiff counsel provided a lodestar calculation of $58,257.50 for 181.05 work hours for three attorneys and an unknown number of paralegals. The Plaintiff Jones sued Defendant United American Security, on behalf of himself and others similarly situated, for state and federal wage violations. The Plaintiff alleged that the Defendant failed to pay him and other Class and Collective Members for overtime and end-of-shift work duties. United American provides security guards and guard services for long and short-term security needs. A copy of the Court's order dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3rHAiTg at no extra charge.[CC] UNITED SERVICES: Extension of Class Cert. Bid Filing Sought ----------------------------------------------------------- In the class action lawsuit captioned as ROBERTA A. MCPHEETERS, LATONDRA TRAYLOR, and BERNARD IVORY, individually and on behalf of all others similarly situated, v. UNITED SERVICES AUTOMOBILE ASSOCIATION and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Case No. 1:20-cv-00414-TSB (S.D. Ohio), the Plaintiffs, Roberta A. McPheeters, Latondra Traylor, and Bernard Ivory, individually, and on behalf of all others similarly situated, by and through the undersigned counsel, and pursuant to Local Rule 7.3(a) and Fed. R. Civ. P. 6(b), ask the Court to enter an order extending the time to file their Motion for Class Certification. The United Services Automobile Association is a San Antonio-based Fortune 500 diversified financial services group of companies. A copy of the Plaintiffs' motion dated July 20, 2021 is available from PacerMonitor.com at https://bit.ly/3x6wPPv at no extra charge.[CC] The Counsel for the Plaintiffs and the Proposed Class are: Kevin C. Hulick, Esq. STUART E. SCOTT (0064834) SPANGENBERG SHIBLEY & LIBER 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 Telephone: (216) 696-3232 Facsimile: (216) 696-3924 E-mail: khulick@spanglaw.com - and - Jacob L. Phillips, Esq. Edmund A. Normand, Esq. NORMAND PLLC P.O. Box 1400036 Orlando, FL 32814-0036 Telephone: (407) 603-6031 E-mail: jacob.phillips@normandpllc.com ed@ednormand.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Avenue, Suite 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 Facsimile: (786) 623-0915 E-mail: efilings@shamisgentile.com - and - Rachel Dapeer, Esq. DAPEER LAW, P.A. 300 South Biscayne Boulevard, Suite 2704 Miami, FL 33131 Telephone: (305) 610-5223 E-mail: rachel@dapeer.com UNITED STATES: Court Junks Anunciato Class Action -------------------------------------------------- In the class action lawsuit captioned as ALINE ANUNCIATO, et al., v. DONALD J. TRUMP, et al., Case No. 3:20-cv-07869-RS (N.D. Cal.), the Hon. Judge Richard Seeborg entered an order: 1. granting the the motion to dismiss class action; 2. dismissing the case as moot; 3. denying all pending motions as moot; and 4. directing the Clerk to close the case. On April 22, 2020, former President Trump signed into law Presidential Proclamation 10014, titled Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak. The Plaintiffs, a large group of visa applicants and their beneficiaries, filed this case in November 2020 to challenge the lawfulness of Proclamation 10014. Three months later, newly elected President Biden signed Proclamation 10149, which entirely revoked Proclamation 10014. The government now moves to dismiss the suit on mootness grounds. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3BU5C6d at no extra charge.[CC] UNITED STATES: Schulz Appeals Denial of Summary Judgment Bid ------------------------------------------------------------ Plaintiffs Robert L. Schulz, et al., filed an appeal from a court ruling entered in the lawsuit entitled Robert Schulz, et al. v. Congress of the United States, Case No. 1:21-cv-00448-DLF, in the United States District Court for the District of Columbia. Robert Schulz and Anthony Futia, Jr., individuals representing themselves pro se, bring this action against the "Congress of the United States, each member of the Senate and House of Representatives," for allegations related to the certification of Electoral College votes in the 2020 presidential election. They allege that "the manner in which the Presidential Electors were chosen in 31 States violated the Electors Clause of the Constitution of the United States of America in that Executive and Judicial officials in those States usurped their legislatures' authority and unconstitutionally revised their State's election laws." They claim that these violations necessitate the nullification of 401 of the available 538 electoral votes, leaving no candidate with the requisite majority needed to win the presidency. Schulz and Futia delivered to each member of Congress a copy of a petition outlining the alleged violations of these states, to which Congress has not responded. They claim that "Congress had a duty to respond to the Petition," and by not doing so, Congress has admitted that the "electors from 31 states were unconstitutionally chosen." Schulz and Futia request that the Court "declar[e] the 2020 electoral college to have been unconstitutionally formed," and direct Congress to "choose immediately, by ballot, the President and Vice President of the United States, in accordance with the Twelfth Amendment to the Constitution." The Plaintiffs now seek a review of the Court's Order dated June 16, 2021, denying their motion for summary judgment and motion for default judgment. The appellate case is captioned as Robert Schulz, et al. v. Congress of the United States, Case No. 21-5164, in the United States Court of Appeals for the District of Columbia Circuit, filed on July 16, 2021.[BN] Plaintiffs-Appellants Robert L. Schulz and Anthony Futia, Jr. appear pro se. Defendant-Appellee Congress of the United States, Each member of the Senate and House of Representatives, is represented by: R. Craig Lawrence, Esq. U.S. ATTORNEY'S OFFICE 555 4th Street, NW Washington, DC 20530 Telephone: (202) 252-2500 UNIVERSITY OF NORTH CAROLINA: Extension to File Class Cert Sought ----------------------------------------------------------------- In the class action lawsuit captioned as MARTHA HOELZER and all similarly situated individuals, v. THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA, in its official capacity and each member in their individual capacity, THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL and RAYMOND FARROW, in his individual and official capacity, BARBARA J. STEPHENSON, in her individual and official capacity, DANIEL LEBOLD, in his individual and official capacity, DAVID ROUTH, in his individual and official capacity, and DEBBIE DIBBERT, in her individual and official capacity, Case No. 1:20-cv-1072 (M.D.N.C.), the Plaintiff asks the court to extend the time to file a Motion for Class Certification. The Plaintiff filed a Complaint on December 1, 2020. The Plaintiff filed an Amended Complaint on December 23, 2020. The Defendants waived service on January 15, 2021, and obtained an extension of time to file a response until April 15, 2021. The Defendants filed a Motion to Dismiss and Brief in Support on April 15, 2021. The Plaintiff filed a Response to the Defendants' Motion to Dismiss on May 6, 2021. The Plaintiff also filed a Motion to Amend the Amended Complaint on May 6, 2021, seeking to name each individual member of the Board of Governors of the University of North Carolina. The University of North Carolina at Chapel Hill is a public research university in Chapel Hill, North Carolina. The flagship of the University of North Carolina system, it is considered to be a Public Ivy, or a public institution which offers an academic experience similar to that of an Ivy League university. A copy of the Court's order the Plaintiff's motion dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3jaGcZt at no extra charge.[CC] The Plaintiffs are represented by: Valerie Bateman, Esq. Rachel M. Blunk, Esq. BORREST FIRM, P.C. 406 Blackwell St., Suite 420 Durham, NC 27701 E-mail: valerie.bateman@forrestfirm.com rachel.blunk@forrestfirm.com UNIVERSITY OF NOTRE DAME: Suit Seeks COVID-19 Tuition Fee Refunds ----------------------------------------------------------------- EVAN S. LATTERY, on behalf of himself and all others similarly situated v. UNIVERSITY OF NOTRE DAME DU LAC, Case No. 3:21-cv-00505-RLM-SLC (N.D. Ind., July 15, 2021) is a class action lawsuit on behalf of all persons who paid tuition and/or fees to attend University of Notre Dame for in-person and on-campus educational services and experiences for the semesters or terms affected by Coronavirus Disease 2019, including the Spring 2020 semester, and were denied such services and experiences and had their course work moved to online only learning. Such individuals paid all or part of the tuition for the Spring 2020 semester that was around $27,523.00 for undergraduate students, and mandatory fees for each semester of approximately $253.50 including a $75.00 Health Center Access Fee, a $125.00 Technology Fee, a $6.00 Observer Fee and a $47.50 Student Activity Fee ("Mandatory Fees"). Allegedly, Notre Dame has not refunded any amount of the tuition or any of the Mandatory Fees, even though it implemented online only distance learning starting on or around March 11, 2020. Because of the University's alleged response to the COVID-19 pandemic, on March 11, 2020, the University also stopped providing any of the services or facilities the Mandatory Fees were intended to cover. . The University's failure to provide the services for which tuition and the Mandatory Fees were intended to cover since approximately March 11, 2020 is a breach of the contracts between the University and Plaintiff and the members of the Class and is unjust, added the suit. In short, Plaintiff and the members of the Class have paid for tuition for on-campus, in person educational services and experiences, with all the appurtenant benefits offered by a first-rate university, and were provided a materially different alternative, which constitutes a breach of the contracts entered into by Plaintiff with the University, the Plaintiff contends. As to the Mandatory Fees, the Plaintiff and the Class have paid fees for services and facilities which were simply not provided. The Plaintiff and the Class have been deprived of access to these facilities and services as a result of Defendant's response to the Coronavirus. This failure also constitutes a breach of the contracts entered into by Plaintiff with Defendant. Rather than offer partial refunds, credits, or discounts to students like Plaintiff and the Class and balance the financial difficulties associated with Covid-19, Defendant has instead elected to place the financial burden entirely upon its students by charging then full tuition and fees when the services Notre Dame provided were not the full educational opportunities, experiences, and services that Plaintiff and the Class agreed to, the suit further asserts. The Plaintiff does not challenge Defendant's compliance with the Covid-19 orders that were in place in Indiana or local authorities. Rather, Plaintiff challenges Defendant's decision to retain monies paid by students like Plaintiff and refuse to offer any refunds, provide any discounts, or apply any credit to Plaintiff and Class members' accounts when Defendant failed to provide the in-person and on-campus services. The Plaintiff seeks, for himself and the Class members, the University's disgorgement and return of the pro-rated portion of its tuition and Mandatory Fees, proportionate to the amount of time in the respective semesters when the University closed and switched to online only learning. The return of such amounts would compensate Plaintiff and the Class members for damages sustained by way of Defendant's breach. The Plaintiff seeks for himself and the Class members protections including injunctive and declaratory relief protecting Class Members from paying the full cost of tuition and Mandatory Fees during the pendency of the pandemic in light of the educational services, opportunities, and experiences Defendant can actually safely provide. Plaintiff Evan Slattery was an undergraduate student during the Spring 2020 semester and a current graduate student. For the Spring 2020 semester, Notre Dame charged Plaintiff approximately $27,523.00 in tuition and approximately $253.50 in Mandatory Fees, including a $75.00 Health Center Access Fee, a $125.00 Technology Fee, a $6.00 Observer Fee. Notre Dame is a private university in Notre Dame, Indiana that was founded in 1842. The University offers numerous major fields for undergraduate students, as well as a number of graduate programs. Defendant is incorporated in and registered as a non-profit corporation with the State of Indiana.[BN] The Plaintiff is represented by: Scott D. Gilchrist, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 Facsimile: (317) 636-2593 E-mail: sgilchrist@cohen&malad.com - and - Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. Brett R. Cohen, Esq. LEEDS BROWN LAW , P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 E-mail: jbrown@leedsbrownlaw.com mtompkins@leedsbrownlaw.com bcohen@leedsbrownlaw.com - and - Jason P. Sultzer, Esq. Benjamin Zakarian, Esq. Mindy Dolgoff, Esq. THE SULTZER LAW GROUP, P.C. 270 Madison Avenue, Suite 1800 New York, NY 10016 Telephone: (212) 969-7810 E-mail: sultzerj@thesultzerlawgroup.com zakarianb@thesultzerlawgroup.com VALENTINE & KEBARTAS: Cardenas Class Cert. Bid Tossed as Moot ------------------------------------------------------------- In the class action lawsuit captioned as Cardenas v. Valentine & Kebartas, LLC, et al., Case No. 5:20-cv-00300 (W.D. Tex.), the Hon. Judge Orlando L. Garcia entered an order denying as moot motion to certify class. In light of the Plaintiffs stipulation of dismissal, this case is closed, says Judge Garcia. The suit alleges violation of the Fair Debt Collection Practices Act. V&K provides collection services to public and private sector clients.[CC] VELOCITY INVESTMENTS: Plaintiffs Lose Bids for Class Certification ------------------------------------------------------------------ The Hon. Judge Joseph F. Leeson, Jr. entered an order in the two lawsuits filed against Velocity Investments, LLC: 1. The pending motions for class certification in both actions, are dismissed, without prejudice. 2. The Court directs counsel for Plaintiffs in both actions to confer with each other and, within 14 days, respond to the Court with a joint report filed on the dockets of both actions stating whether counsel consents to the consolidation of these matters for all purposes and proceeding on a single, consolidated, amended class action complaint. 3. Since it would be unwise to permit these actions to both proceed as independent class actions, should Plaintiffs be unable to reach an agreement as to how these actions can proceed as a single, consolidated putative class action, the Court will be forced to fashion an appropriate remedy, which may include sua sponte consolidation for all purposes over the parties’ objections; or, alternatively, consideration of only one of the two actions for class certification. 4. In light of the above, the Jackson Plaintiffs' motion for leave to file a First Amended Complaint is dismissed, without prejudice, as premature and potentially moot. 5. The parties' respective motions to seal associated with the pending motions for class certification are granted. The class action lawsuits are captioned as: "TYNISHA JACKSON, DAVID CREVELING, and MARY HANS, Individually and on behalf of all others similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No. 5:20-cv-2524 (E.D. Pa.);" and "MARC MASSARO, BENJAMIN BERNSTEIN, and GREG AIKENS, Individually and on behalf of all others similarly situated, v. VELOCITY INVESTMENTS, LLC, Case No. 5:20-cv-01845-JFL (E.D. Pa.)." Velocity Investments is a comprehensive accounts receivables management (ARM) company. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/3iklPKh at no extra charge.[CC] VIKING SERVICES: Order Issued in Denicolo Over Certified Classes ---------------------------------------------------------------- District Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California issued an order regarding temporal scope of certified classes in the lawsuit captioned RONALD G. DENICOLO, ET AL., Plaintiffs v. VIKING SERVICES, Defendants, Case No. 19-cv-00210-YGR (N.D. Cal.). In its March 29, 2021 Order Granting Motion to Certify Class, the Court certified three classes: (1) an Illinois Resident Class, represented by plaintiff Denicolo, alleging violations of the Illinois Vehicle Code (IVC), 625 ILCS Section 5/6-305.2 and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. sections 1692f and 1692e; (2) a California Rental Class, also represented by plaintiff Denicolo, also under the FDCPA; and (3) a California Resident Class, represented by plaintiff Fox, under California law, i.e., Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act), Cal. Code Section 17.1800; the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code SectionSection 17200, et seq.; and the Consumer Remedies Act (CCRA), Cal. Civ. Code Sections 1750, et seq. In that Order, the Court directed the parties to file a joint statement regarding the temporal limitations on the class definitions. The parties filed their joint statement on April 12, 2021. The Court subsequently ordered additional briefing on the scope and relation back issues raised. The parties' Further Joint Statement was filed on July 9, 2021. In their statements, the parties agreed that the class periods should run from Jan. 11, 2018, through March 29, 2021, with respect to the Illinois Resident Class and the California Rental Class, based on the one-year statute of limitations applicable to the claims alleged on behalf of those classes and the filing date of the original complaint here, Jan. 11, 2019. The parties disagree as to the appropriate class period for the California Resident Class, represented by Plaintiff Fox. The Court has reviewed carefully the statements filed, as well as the pleadings and papers filed in this matter, and orders that the California Resident Class runs from Oct. 14, 2015, to March 29, 2021. Background The original complaint in this matter, filed Jan. 11, 2019, was brought on behalf of plaintiff Ronald G. Denicolo, Jr., only, alleging claims for violation of the federal Fair Debt Collection Practices Act, as well as a claim for violation of the Illinois Vehicle Code, federal Declaratory Judgment Act, and a common law claim for breach of the covenant of good faith and fair dealing. The parties later stipulated to permit the original complaint to be amended to add Plaintiff Michael G. Fox and his claims under the Rosenthal Act, CLRA, and UCL, after Plaintiff Fox exhausted the pre-filing requirements of the CLRA by a Sept. 11, 2019 demand letter served on Viking. The First Amended Complaint was filed thereafter on Oct. 14, 2019 ("FAC"). Discussion The Plaintiffs contend the relevant class period for the California Resident Class begins on Jan. 11, 2015, or four years prior to the original complaint, based upon the statute of limitations for a UCL claim, the longest of the applicable limitations periods for this class. The Defendant counters with two arguments: (1) the claims alleged by Plaintiff Fox were first alleged in the FAC here and do not relate back to the filing of the original complaint; and (2) scope of the California Resident Class is limited to the one-year period applicable to a Rosenthal Act claim. As to the relation back question, the Court finds that the claims of the California Resident Class represented by Plaintiff Fox do not relate back to the filing of the original complaint. Judge Rogers notes that here, the original complaint did not give the Defendant adequate notice of the claims of Fox and the California Resident Class, nor is there an identity of interests between Fox and Denicolo in the claims they allege on behalf of the respective classes they represent. Although similar, Fox's claims differ from Denicolo's in significant ways, factually and legally. DeNicolo only alleged only claims under the FDCPA concerning first notices of damage more than 30 days after the alleged damage occurred, while Fox asserts claims under California law for alleged failure to provide debt validation disclosures. Further, Judge Rogers finds, the legal requirements of the claims differ. Fox's claim under the CLRA includes a specific requirement that a claimant submit to defendant a pre-filing notification. Also, under the Plaintiffs' theory of the case, the Rosenthal Act claim includes more expansive disclosure requirements which attached immediately upon sending the first letter to a putative class member. Consequently, the "only factual difference" between Fox and DeNicolo--the timing after the alleged vehicle damage--is essential to the Plaintiffs' theory that letters like the one Fox received, just 24 days after the purported damage to the vehicle he rented, violate the Rosenthal Act. Because Fox received his letter less than 30 days after the alleged damage, he would not be a member of the other classes alleged, underscoring the difference in interests, and the lack of notice to Viking of the new claims added in the FAC, Judge Rogers holds. Based on the foregoing, the Court concludes that the claims of Fox and the California Resident Class do not relate back to the filing of the original complaint here, and the temporal scope of that class is based on the Oct. 14, 2019 filing of the FAC. Viking also argues that the California Resident Class class period should be restricted to the one-year Rosenthal Act time limit. Judge Rogers holds that both the Ninth Circuit and California Supreme Court have expressly rejected this argument, citing Cortez v. Purolator Air Filtration Prods. Co., 23 Cal.4th 163, 178-179 (2000). Judge Rogers opines that the Defendants' poorly articulated contentions that application of the longer statute of limitations will present manageability difficulties fails to persuade and does not appear to be a valid basis for cutting off the claims properly covered by the amended complaint. Conclusion The Court, therefore, orders that the class definitions in the Court's March 29, 2021 Order are amended to clarify that they encompass all such conduct during the relevant class periods of: (1) Jan. 11, 2018, through March 29, 2021 with respect to the Illinois Resident Class and the California Rental Class; and (2) Oct. 14, 2015, to March 29, 2021, with respect to the California Resident Class. With the temporal scope issues resolved, the Court must set a case management schedule for discovery and trial. The Court sets a case management conference for Aug. 30, 2021, at 2:00 p.m., on the Court's Zoom videoconference platform. The parties will file their updated case management statement no later than Aug. 23, 2021. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/fm6pduk from Leagle.com. VOLVO CARS: Neale Loses Bid to Certify Class in Sunroof Defect Suit ------------------------------------------------------------------- The U.S. District Court for the District of New Jersey denied the renewed motion for class certification filed by the Plaintiffs of the lawsuit titled JOANNE NEALE, et al., Plaintiffs v. VOLVO CARS OF NORTH AMERICA, LLC, et al., Defendants, Case No. 10-4407 (D.N.J.). The Motion is brought pursuant to Rule 23 of the Federal Rules of Civil Procedure by Plaintiffs Joanne Neale, Keri Hay, Kelly McGary, Svein A. Berg, Gregory P. Burns, David Taft, Jeffrey Kruger, and Karen Collopy. Defendants Volvo Cars of North America and Volvo Car Corp. oppose the Motion. Background The longstanding putative class action arises out of the Defendants' sale of six Volvo vehicle models allegedly containing an undisclosed uniform design defect in their sunroof drainage systems. The Plaintiffs allege that the Class Vehicles "incorporate the use of drain holes, drain tubes and sound traps in an attempt to direct water from the sunroof tray . . . to the underside of the vehicle." The sound traps are located at the bottom of the drain tubes and employ a "plus-shaped" opening designed to allow water to exit the drainage system while minimizing wind noise. The Plaintiffs contend that the plus-shaped design causes the sound traps to clog, which results in water backing up into the drainage tubes and, ultimately, into the passenger compartment. The Plaintiffs are residents of New Jersey, California, Maryland, Massachusetts, Florida, and Hawaii who each purchased a Class Vehicle and each allegedly incurred out-of-pocket expenses to repair damages caused by the Sunroof Defect. The tortured history of this action now spans over a decade. The Plaintiffs filed their initial Complaint on Aug. 27, 2010. On May 21, 2012, they filed the 13-count Second Amended Complaint ("SAC"), asserting claims under the laws of six states. The SAC specifically alleges (1) violation of the New Jersey Consumer Fraud Act ("NJCFA") ("Count I"); (2) breach of express warranty ("Count II"); (3) breach of the implied warranty of merchantability ("Count III"); (4) common law fraud ("Count IV"); (5) breach of the duty of good faith and fair dealing ("Count V"); (6) violation of the Massachusetts Consumer Protection Law, Mass. Gen. Laws ch. 93A, Section 1, et seq. ("Chapter 93A") ("Count VI"); (7) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") ("Count VII"); (8) violation of the Hawaii Uniform Deceptive Trade Practice Act ("Count VIII"); (9) violation of the California Unfair Competition Law ("UCL") ("Count IX"); (10) violation of the California Consumer Legal Remedies Act ("CLRA") ("Count X"); (11) breach of express warranty, in violation of the California Song-Beverly Consumer Warranty Act ("Song-Beverly") ("Count XI"); (12) failure to set forth terms of warranty in writing, in violation of Song-Beverly ("Count XII"); and (13) breach of implied warranty, in violation of Song-Beverly ("Count XIII"). On March 26, 2013, the Court denied the Defendants' respective motions for summary judgment, denied the Plaintiffs' motion to certify a nationwide class, and granted the Plaintiffs' motion to certify six statewide classes. The Court denied the Defendants' subsequent motion for reconsideration on Oct. 16, 2013. The Defendants appealed, and the Third Circuit vacated class certification on July 22, 2015. The Third Circuit determined that this Court erred by failing to (a) include a "clear and complete summary of those claims, issues, or defenses subject to class treatment," or (b) perform a claim-by-claim analysis pursuant to Rule 23(b)(3) to determine whether common issues of law or fact predominate over individualized issues. On remand, the Court denied the Plaintiffs' renewed motion for class certification without prejudice. The Court did not reach the issues identified by the Third Circuit but held that the Plaintiffs had failed to present ascertainable statewide classes under Rule 23(b)(3). The Court further held that the Plaintiffs' Rule 23(b)(2) classes could not be certified because they included former owners of Class Vehicles but sought injunctive relief that could only benefit current owners. The Plaintiffs again moved for class certification on Sept. 28, 2018. This Court again denied that motion without prejudice, concluding that the Plaintiffs had failed to prove that each proposed subclass was sufficiently numerous to satisfy Rule 23(a)(1). The Court granted the Plaintiffs leave to refile their motion with further evidence of numerosity and permitted the parties to incorporate by reference the remaining issues addressed but not decided in the prior motion for class certification. The instant Motion followed. Proposed Classes, Representatives, and Claims The Plaintiffs seek certification pursuant to Rule 23(b)(3) of four statewide classes of consumers residing in New Jersey, Massachusetts, California, and Florida, defined as follows: All persons who at any time between April 29, 2004 and December 31, 2015, purchased or leased a Class Vehicle from an authorized Volvo dealership in [State] and also resided in [State] at the time of that purchase or lease; and, as of the date of the Court's class certification order, either: (a) still own that Class Vehicle; or (b) can offer proof or otherwise be identified as having incurred prior out-of-pocket expenses related to repairs associated with the Sunroof Defect, regardless of whether such person still owns or leases that Class Vehicle. Specifically excluded from the class is any person who is or was a lessor of the Class Vehicle ("Rule 23(b)(3) Classes"). The Plaintiffs additionally seek certification of four statewide classes pursuant to Rule 23(b)(2), defined as: All persons who at any time between April 29, 2004 and December 31, 2015, purchased or leased a Class Vehicle from an authorized Volvo dealership in [State] and also resided in [State] at the time of that purchase or lease; and, as of the date of the Court's class certification order still own that Class Vehicle. Specifically excluded from the class is any person who is or was a lessor of the Class Vehicle ("Rule 23(b)(2) Classes"). Persons, who no longer own a Class Vehicle, are therefore excluded from the Rule 23(b)(2) Classes. The New Jersey Classes Plaintiffs Gregory Burns and Karen Collopy seek certification of four claims on behalf of the New Jersey classes: (1) Count I (NJCFA); (2) Count II (breach of express warranty); (3) Count III (breach of implied warranty); and (4) Count V (breach of good faith and fair dealing). The California Classes Plaintiff Jeffrey Kruger seeks certification of five claims on behalf of the California classes: (1) Count II (breach of express warranty); (2) Count III (breach of implied warranty); (3) Count V (breach of good faith and fair dealing); (4) Count IX (UCL); and (5) Count X (CLRA). The Florida Classes Plaintiff Kelly McGary seeks certification of three claims on behalf of the Florida classes: (1) Count II (breach of express warranty); (2) Count V (breach of good faith and fair dealing); and (3) Count VII (FDUTPA). The Massachusetts Classes Plaintiff Joanne Neale seeks certification of four claims on behalf of the Massachusetts classes: (1) Count II (breach of express warranty); (2) Count III (breach of implied warranty); (3) Count V (breach of good faith and fair dealing); and (4) Count VI (Chapter 93A). Analysis The Court's analysis proceeds in two steps. First, the Plaintiffs must establish the viability of each proposed class through the prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. Second, the Plaintiffs must show that a class action may be maintained by meeting the requirements of at least one subsection of Rule 23(b). The Plaintiffs move to certify claims for damages under Rule 23(b)(3) and claims for injunctive relief under Rule 23(b)(2). Rule 23(a) The Defendants first argue that the Plaintiffs have failed to establish three elements of Rule 23(a): numerosity, typicality, and adequacy. The Court disagrees. District Judge Madeline Cox Arleo notes that the Court denied the Plaintiffs' previous certification motion after determining that the Plaintiffs had failed to present evidence of numerosity beyond mere speculation. She holds that the Plaintiffs have now cured this deficiency through a comparison of (a) sales data provided by Defendants with (b) registration data provided by Experian and state agencies. Specifically, the Plaintiffs have identified 2,421 New Jersey Class members, 93 California Class members, 1,789 Florida Class members, and 1,527 Massachusetts Class members. The Court finds numerosity satisfied by a preponderance of the evidence. The Court also finds that the commonality requirement is satisfied because the Plaintiffs have identified common contentions central to the validity of their claims, namely that the Defendants (a) sold vehicles containing a material, uniform design defect, and (b) failed to disclose the defect to consumers. Since the Plaintiffs have alleged a uniform defect in the shape of the opening in sound plugs across all Class Vehicles, the fact that each representative owned "only one model does not pose a typicality problem." Hence, the Plaintiffs have established typicality. The Court also finds that the Plaintiffs have demonstrated adequacy and satisfied each requirement of Rule 23(a). Rule 23(b)(3) -- Predominance Judge Arleo notes that the Plaintiffs have presented no evidence that the Sunroof Defect diminishes the resale value of Class Vehicles. Rather, they contend that the existence of the Sunroof Defect deprived them of their bargain for vehicles "unencumbered by material defects," and that each class member has suffered a quantifiable loss equal to the cost of mitigating the Sunroof Defect. As a threshold issue, Judge Arleo holds, the Plaintiffs' theory is too speculative to satisfy the definition of ascertainable loss. For Current Owners, who have experienced no leakage and suffered no out-of-pocket expenditures, the alleged class-wide "loss" stems from a purported need to repair a latent defect that, at some point in the future, may or may not manifest and create problems. In other words, they seek to recover the cost to remedy a problem that might not exist caused by a design flaw with no tangible impact on market value. This "hypothetical or illusory" loss is insufficient to support an NJCFA claim. The Plaintiffs' reliance on In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46 (D.N.J. 2009), is misplaced, Judge Arleo holds. There, the court certified a class of consumers, who purchased cars marketed as having an analog roadside assistance device, which the defendant allegedly knew would soon become obsolete and require an upgrade to a digital system. Here, by contrast, class members, who never experienced leakage, have suffered neither out-of-pocket losses nor the inability to use their purchased product as intended, Judge Arleo points out. Absent expert testimony demonstrating that the Sunroof Defect skewed the market for Class Vehicles, or some other method for proving diminution of value on a class-wide basis, each class member must separately demonstrate that his or her Class Vehicle suffered an actual and quantifiable loss attributed to the Sunroof Defect. Such individualized questions preclude predominance on the Plaintiffs' NJCFA claim, Judge Arleo concludes. Judge Arleo also finds, among other things, that the record is devoid of any evidence that a reasonable consumer would consider the Sunroof Defect material in deciding to purchase a Class Vehicle. The Plaintiffs have presented no evidence as to consumer behavior, merely arguing in a footnote that there is "no conceivable benefit to water leaking into" a vehicle. The Court further finds the proposed methodology of the Plaintiffs' damages expert, Walter Bratic, unpersuasive for several reasons, including the fact that the Court cannot determine whether Volvo's warranty database contains data sufficient to identify repairs attributable to the Sunroof Defect. Finally, and most problematically, Bratic's methodology bears no logical relation to the class the Plaintiffs seek to certify, the Judge points out. The Plaintiffs have, therefore, failed to demonstrate predominance as to their UCL claims. The Plaintiffs have, therefore, failed to demonstrate predominance as to any of their claims. The Court denies certification of the Rule 23(b)(3) Classes. Rule 23(b)(2) -- Injunctive Relief The Defendants last argue that certification of the Rule 23(b)(2) Classes are inappropriate. The Court agrees. At the outset, the Plaintiffs' proposed California and Florida Rule 23(b)(2) Classes fail because neither has a class representative, Judge Arleo holds. Kruger (California) and McGary (Florida) no longer own their respective Class Vehicle. The Court also may not certify the Plaintiffs' NJCFA or Massachusetts Chapter 93A claims because the Plaintiffs may not pursue those claims on behalf of class members, who have not experienced leakage. Finally, the Court declines to certify the Plaintiffs' warranty claims under New Jersey and Massachusetts law because the proposed classes lack cohesiveness. The individualized issues in connection with the Rule 23(b)(3) inquiry, supra Section IV.B.6, similarly destroy the "indivisible nature" of the requested injunctive relief, Judge Arleo opines. Moreover, the relief sought by the Plaintiffs relates primarily to money damages, Judge Arleo notes. She explains that courts in this District have denied Rule 23(b)(2) certification on this ground where, as here, a proposed class simultaneously seeks an affirmative injunction requiring repairs to be made and the monetary costs of those repairs, citing In re Ford Motor Co. E-350 Van Prod. Liab. Litig. (No. II), No. 03-4558, 2012 WL 379944, at *39 (D.N.J. Feb. 6, 2012). The Plaintiffs have, consequently, failed to prove their right to Rule 23(b)(2) certification. Conclusion For the reasons stated, the Plaintiffs' Motion for Class Certification is denied. An appropriate order follows. A full-text copy of the Court's Opinion dated July 15, 2021, is available at https://tinyurl.com/5x3wtjd7 from Leagle.com. WAKE COUNTY, NC: Gorrell FLSA Suit Seeks Conditional Class Cert. ---------------------------------------------------------------- In the class action lawsuit captioned as STEVEN E. GORRELL, on behalf of himself and all others similarly situated, v. WAKE COUNTY, Case No. 5:21-CV-00129 (E.D.N.C.), the Plaintiff asks the Court to enter an order: 1. conditionally certifying this action and granting court- authorized notice pursuant to 29 U.S.C. section 216(b) of the Fair Labor Standards Act ("FLSA"); 2. approving the proposed FLSA notice of this action and consent form; 3. directing the Wake County to produce the names, job titles, last-known mailing addresses, last-known cell phone numbers; last-known email addresses, and dates of employment of the putative plaintiffs who worked the Late Peak or Night shifts on any Friday nights/Saturday mornings which overlapped workweeks during the three years prior to the date of commencement of this action through the present, within 15 days of the Order; and 4. approving to distribute the Notice and Consent to Join Form via first-class mail, email, and text message to all putative plaintiffs of the conditionally certified collective class, as well as a reminder mailing to be sent 45 days after the initial mailing to all non-responsive putative plaintiffs. Wake County is located in the U.S. state of North Carolina. As of July 1, 2019, the population was 1,111,761, making it North Carolina's most populous county as well as the most populous county in the Carolinas. A copy of the Court's order the Plaintiff's motion to certify dated July 21, 2021 is available from PacerMonitor.com at https://bit.ly/37b8BsA at no extra charge.[CC] The Plaintiff is represented by: Ryan D. Oxendine, Esq. James A. Barnes IV, Esq. Spencer S. Fritts, Esq. OXENDINE BARNES & ASSOCIATES PLLC 6500 Creedmoor Rd., Suite 100 Raleigh, NC 27613 Telephone: (919) 848-4333 Facsimile: (919) 848-4707 E-mail: ryan@oxendinebarnes.com jim@oxendinebarnes.com spencer@oxendinebarnes.com WALMART INC: Yonan Files Mislabeling Suit re Coffee Creamer Product ------------------------------------------------------------------- Julia Yonan, individually and on behalf of others similarly situated, Plaintiff, v. Walmart, Inc. and Nestle USA, Inc., Defendants, Case No. 21-cv-61443, (S.D. Fla., July 15, 2021), seeks an award of equitable relief, actual damages, an award of attorney's fees and costs and any other relief and prejudgment and post-judgment interest on any amounts awarded pursuant to the Florida Deceptive and Unfair Trade Practices Act. Yonan purchased Coffee Mate Original Powdered Coffee Creamer at a Walmart in Fort Lauderdale, FL. The product's front label prominently states that the product "Makes Up to 500 Servings." Yonan claims that it does not produce anywhere close to 500 of powdered coffee creamer. [BN] Plaintiff is represented by: Joel Oster, Esq. LAW OFFICES OF HOWARD RUBINSTEIN, P.A. 22052 W. 66th St., #192 Shawnee, KS 66226 Telephone: (913) 206-7575 Fax: (561) 688-0630 Email: joel@joelosterlaw.com - and - Lydia S. Zbrzeznj, Esq. Nicholas T. Zbrzeznj, Esq. SOUTHERN ATLANTIC LAW GROUP, PLLC 99 6th Street SW Winter Haven, FL 33880 Telephone: (863) 656-6672 Emails: lydia@southernatlanticlaw.com nick@southernatlanticlaw.com kara@southernatlanticlaw.com mark@southernatlanticlaw.com - and - Larry DeWayne Layfield, Esq. LAW OFFICE OF L. DEWAYNE LAYFIELD, PLLC 801 Laurel Street (77701) P.O. Box 3829 Beaumont, TX 77704 Tel: (409) 832-1891 Fax: (866) 280-3004 Email: DeWayne@LayFieldLaw.com WARTBURG COLLEGE: Court Enters Scheduling Order in Warner Suit -------------------------------------------------------------- In the class action lawsuit captioned as SYDNEY WARNER v. WARTBURG COLLEGE, Case No. 21-cv-2029-CJW (N.D. Iowa), the Hon. Judge entered a scheduling order and discovery plan: -- Initial disclosures: July 30, 2021 -- Motions to add parties: September 1, 2021 -- Motions to amend pleadings: September 1, 2021 -- Expert witness disclosures: 1. Plaintiff's expert(s): February 1, 2022 2. Defendant's expert(s): March 15, 2022 3. Plaintiff's rebuttal expert(s): April 15, 2022 -- Plaintiff shall file class March 15, 2022 certification motion and expert reports: -- Defendant shall respond to April 15, 2022 class certification and expert reports: -- Plaintiff shall file reply May 16, 2022 brief and rebuttal expert reports: -- Completion of discovery: June 15, 2022 -- Dispositive motions: August 1, 2022 -- Trial ready date: January 9, 2023 Wartburg College is a private Lutheran liberal arts college in Waverly, Iowa. It has an additional campus, Wartburg West, in Denver, Colorado. A copy of the Court's order dated July 19, 2021 is available from PacerMonitor.com at https://bit.ly/377nSuC at no extra charge.[CC] WEINGARTEN REALTY: Morgan Files Suit Over Kimco Merger Deal ----------------------------------------------------------- Anthony Morgan, individually and on behalf of all others similarly situated, Plaintiff, v. Weingarten Realty Investors, Andrew M. Alexander, Stanford J. Alexander, Shelaghmichael C. Brown, Stephen A. Lasher, Thomas L. Ryan, Douglas W. Schnitzer, C. Park Shaper and Marc J. Shapiro, Defendants, Case No. 21-cv-05523 (N.D. Cal., July 19, 2021), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Weingarten by Kimco Realty Corporation, rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Under the terms of the Merger Agreement, each Weingarten stockholder will receive 1.408 newly issued shares of Kimco common stock and $2.89 in cash for each share of Weingarten common stock they own. On a pro forma basis, Kimco shareholders are expected to own approximately 71% of the combined company's equity, and Weingarten shareholders are expected to own approximately 29%. The complaint alleges that the proxy statement filed regarding the transaction fails to provide Weingarten stockholders with material information or provides them with materially misleading information concerning Weingarten's and Kimco's financial projections and the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Weingarten's financial advisor J.P. Morgan & Co. LLC and the background of the transaction. Weingarten is a real estate investment trust and is a shopping center owner, manager and developer. Its common stock trades on the New York Stock Exchange under the ticker symbol "WRI." [BN] Plaintiff is represented by: Joel E. Elkins, Esq. WEISSLAW LLP 9107 Wilshire Blvd., Suite 450 Beverly Hills, CA 90210 Telephone: (310) 208-2800 Facsimile: (310) 209-2348. Email: jelkins@weisslawllp.com - and - Richard A. Acocelli, Esq. 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 - and - Brian D. Long, Esq. LONG LAW, LLC 3828 Kennett Pike, Suite 208 Wilmington, DE 19807 Telephone: (302) 729-9100 WELLS FARGO: Class Settlement in Path Suit Gets Final Approval -------------------------------------------------------------- In the class action lawsuit captioned as PATH'S PITAS, LLC, QUEEN CITY TOURS, MARK A. BABBITT. DOS, INC., IDEAL SALES, INC., LYTLE CAFE, and INDIAN TREE CHIROPRACTIC, P.C., individually and on behalf of all others similarly situated, V. WELLS FARGO MERCHANT SERVICES, LLC, Case No. 1:17-cv-04583-AKT (E.D.N.Y.), the Hon. Judge A. Kathleen Tomlinson entered an order: a. granting final approval of the Settlement; b. certifying the Settlement Class pursuant to Fed. R. Civ. P. 23(b)(3) and (e); c. finding the Notice satisfied the requirements of Rule 23, due process, and all other legal requirements; d. approving Class Counsel's requests for attorneys' fees of $12,000,000, expenses of $51,098.89, and service awards of $15,000 each for Plaintiffs Queen City and Indian Tree Chiropractic and $10,000 each for the other four Class Representatives; e. dismissing this action with prejudice as to all Parties and Settlement Class Members; and f. directing the Parties and the Settlement Administrator to carry out the Settlement according to its terms. Settlement Terms Pursuant to the Settlement, WFMS will pay up to $40,000,000 to establish a fund which will provide cash benefits to the Settlement Class Members via mailed checks and also cover attorneys' fees and expenses, service awards, and notice and administration costs. All of the 487,527 Settlement Class Members are eligible to receive a cash payment under the Settlement. The 85,756 Current Customer accounts will automatically be issued payments without the need to submit a claim. The 401,771 Settlement Class Members that are Former Customers arc eligible to receive cash payments by filing a simple claim form. Expenses The Court hereby grants to Class Counsel the requested reimbursement of $51,098.89 in litigation expenses they have incurred during the prosecution of this case. This expense award is fully supported by the Settlement, the facts, the record, and the applicable law. Attornevs' Fees: The Court hereby grants to Class Counsel a fee in the amount of $12,000,000, which the Court finds to be fully supported by the facts, record, and applicable law. This amount shall be paid from the Settlement Fund. The Court hereby certifies, for settlement puiposes only, the following Settlement Class: "All merchants in the United States that contracted to receive payment processing services from Defendant and, from August 4, 2011 through February 8, 2021: (a) processed sales through a fixed pricing plan, (b) paid a statement billing fee. non-validation PCI compliance fee, and/or monthly minimum processing fee, or (c) processed sales through a pricing plan other than standard pricing (also known as "volume tier" or "simplified" pricing) and as of Preliminary Approval are not account-managed (which includes the premier services team)." A copy of the Court's final order and judgment dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/2Vn0NRQ at no extra charge.[CC] WESTWARD 360: Gross FCRA Suit Removed to N.D. Illinois ------------------------------------------------------ The case styled as Neal Gross, on behalf of himself and others similarly situated v. WESTWARD 360 INC., Receivables Performance Management, LLC, Case No. 2021CH3016 was removed from the Cook County Illinois Circuit Court, Chancery Division to the U.S. District Court for the Northern District of Illinois on July 28, 2021. The District Court Clerk assigned Case No. 1:21-cv-04009 to the proceeding. The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. Westward 360 -- https://westward360.com/ -- is Chicago's #1 premier Property Management company.[BN] The Plaintiff appears pro se. WHIRLPOOL: Top-Load Washing Machine Model Suits Ongoing ------------------------------------------------------- Whirlpool Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 22, 2021, for the quarterly period ended June 30, 2021, that the company continues to defend two class action suits related to top-load washing machine models. The company is currently defending against two lawsuits that have been certified for treatment as class actions in U.S. federal court, relating to two top-load washing machine models. In December 2019, the court in one of these lawsuits entered summary judgment in Whirlpool's favor. That ruling remains subject to appeal, and the other lawsuit is ongoing. Whirlpool said, "We believe the lawsuits are without merit and are vigorously defending them. Given the preliminary stage of the proceedings, we cannot reasonably estimate a range of loss, if any, at this time. The resolution of these matters could have a material adverse effect on our financial statements in any particular reporting period." No further updates were provided in the Company's SEC report. Whirlpool Corporation manufactures and markets home appliances and related products worldwide. Its principal products include laundry appliances, refrigerators and freezers, cooking appliances, dishwashers, mixers, and other small domestic appliances. The Company was founded in 1898 and is headquartered in Benton Harbor, Michigan. WILLIAM BARR: Riley Bid for Class Certification Tossed ------------------------------------------------------ In the class action lawsuit captioned as ERNEST DWAYNE RILEY v. ATTORNEY GENERAL WILLIAM BARR, et al., Case No. 3:21-cv-00085-RDM-CA (M.D. Pa.), the Hon. Judge Robert Mariani entered an order: 1. denying without prejudice motion to appoint counsel; and 2. denying the motion for class certification. A copy of the Court's order dated July 22, 2021 is available from PacerMonitor.com at https://bit.ly/2V5DNXX at no extra charge.[CC] WISCONSIN: Howard v. Hartman May Proceed W/o Prepaying Filing fee ----------------------------------------------------------------- The U.S. District Court for the Eastern District of Wisconsin grants the Plaintiff's motion for leave to proceed without prepaying filing fee in the lawsuit entitled JOSHUA HOWARD, Plaintiff v. CARLA HARTMAN, NIKKI KAMPHUIS, CO BODE, and DOES, Defendants, Case No. 20-cv-1768-pp (E.D. Wis.). Joshua Howard, an inmate at the Green Bay Correctional Institution who is representing himself, filed a complaint under 42 U.S.C. Section 1983, alleging that the Defendants violated his constitutional rights. This decision resolves the Plaintiff's motion for leave to proceed without prepaying the filing fee, screens his complaint, and denies as unnecessary his motion to show cause. Motion for Leave to Proceed without Prepaying the Filing Fee Chief District Judge Pamela Pepper states that the Prison Litigation Reform Act (PLRA) applies to this case because the Plaintiff was a prisoner when he filed his complaint. The PLRA allows the court to give a prisoner plaintiff the ability to proceed with his case without prepaying the civil case filing fee. On Dec. 1, 2020, the Court ordered the Plaintiff to pay an initial partial filing fee of $124. The Court allowed the Plaintiff more time to pay the initial partial filing fee, and he timely paid the initial fee on Feb. 19, 2021. The Court will grant the Plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the remainder of the filing fee over time in the manner explained at the end of this Order. Screening the Complaint Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or officer or employee of a governmental entity. The Court must dismiss a complaint if the prisoner raises claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant, who is immune from such relief. The Plaintiff alleges that on May 7, 2015, he filed a proposed class action complaint in the Eastern District of Wisconsin, Case Number 15-cv-557. He says that he named defendant Nikki Kamphuis, who was then head of the Business Office at Waupun Correctional Institution and the Americans with Disabilities Act coordinator, as a defendant in that case. The Plaintiff states that about a month after he filed the proposed class action complaint, he filed a motion for a temporary restraining order to prevent his transfer from Waupun (where he was confined at the time) to another institution; two days later, he submitted an application to the Business Office for a legal loan for postage and supplies needed to prosecute the case. The Plaintiff alleges that four days after he submitted the legal loan application, Defendant Carla Hartman, who works in the Business Office, unjustifiably denied all his legal loan requests. The Plaintiff states that Kamphuis did not want to personally process any requests for case number 15-cv-557 because she was a named defendant, so she recruited Defendant Hartman to act on her behalf. The plaintiff states that through June 2015, he had a balance of $0.00 in his trust account, but that Hartman wrote when denying his loan request that he did not qualify and that there were "multiple inmate plaintiffs." He asserts, among other things, that there is no policy restricting legal loans to single-plaintiff cases and alleges that the defendants denied his loan application "solely based on their desire to deter him from making progress in the pending class action." He says that along with his request for a loan application, he asked for a pen, 10 envelopes and postage for three letters to law firms asking if they were interested in representing the proposed class. The same day that Defendant Hartman denied the Plaintiff's legal loan requests, the Defendants allegedly ordered that the Plaintiff's cell be searched. The Plaintiff alleges that after a multi-hour search of his cell that left thousands of pages of legal documents in disarray, Defendant Bode asked the Plaintiff if he still felt like staying at Waupun. The Plaintiff says that later that evening, Bode returned to the Plaintiff's cell with a handful of documents, "saying they were no longer needed." Among the items Bode returned to the Plaintiff were three envelopes and/or letters from attorneys and the district court and three motions and a letter related to Case No. 15-cv-557. The Plaintiff says that he was "shocked" to learn that any of his legal paperwork had been seized as part of the cell search and he "demanded that Bode fill out receipts describing the materials he was returning." The Plaintiff alleges that four days later, on June 26, 2015, the Defendants ordered the Plaintiff's cell to be searched twice on the same day. The Plaintiff says that when Defendant Doe #1 allegedly finished the first search, the Plaintiff asked Doe #1 why his cell was being search again so soon and Doe #1 replied that he "probably shouldn't sue the Governor." About an hour later, as the plaintiff was finishing up organizing thousands of pages of documents that had been strewn on his floor during the first search, Defendant Doe #2 allegedly told the Plaintiff that he needed to search the cell. The Plaintiff alleges that after performing another exhaustive search of the plaintiff's cell, Doe #2 left the cell with a handful of legal paperwork. The Plaintiff claims that Defendants Kamphuis and Hartman retaliated against him for filing Case Number 15-cv-557 by improperly denying his legal loan requests for the case, threatening to suspend all legal loans, ordering his cell to be searched three times and having his legal paperwork seized. He claims that Defendants Bode and the Does retaliated against him for filing Case Number 15-cv-557 by searching his cell and leaving it in disarray, and by seizing his legal paperwork. Analysis To plead a retaliation claim, the plaintiff needs to allege that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the Defendants' decision to take the retaliatory action. Judge Pepper finds that the Plaintiff has alleged those facts against all of the Defendants--he has alleged that he engaged in activity protected by the First Amendment (filing lawsuit 15-cv-557); that he was denied legal loans and subjected to repeated searches of his cell; and that some of the defendants made comments (oral or written) indicating that they took these actions because he had filed the lawsuit. The Plaintiff may proceed on his claims that the Defendants retaliated against him for filing Case Number 15-cv-557. Conclusion The Court grants the Plaintiff's motion for leave to proceed without prepaying the filing fee. It denies as unnecessary the Plaintiff's motion to show cause. Under an informal service agreement between the Wisconsin Department of Justice and this Court, the Court will electronically transmit a copy of the complaint and this order to the Wisconsin Department of Justice for service on Defendants Carla Hartman, Nikki Kamphuis and CO Bode. Under the informal service agreement, the court orders those Defendants to file a responsive pleading to the complaint within 60 days. The Court orders that the agency that has custody of the Plaintiff must collect from his institution trust account the $226 balance of the filing fee by collecting monthly payments from the Plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to the Plaintiff's trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. Section 1915(b)(2). The agency must clearly identify the payments by the case name and number. If the Plaintiff transfers to another county, state or federal institution, the transferring institution must forward a copy of this order, along with the Plaintiff's remaining balance, to the receiving institution. The Court will send a copy of this order to the Warden at Green Bay Correctional Institution. The Court orders that the parties may not begin discovery until after the Court enters a scheduling order setting deadlines for completing discovery and filing dispositive motions. The Court orders that the Plaintiffs who are in custody at Prisoner E-Filing Program institutions must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the court. The Plaintiffs who are in custody at all other prison facilities must submit the original document for each filing to the court to the following address: Office Eastern District of Wisconsin, 362 United States Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin 53202. The Court advises the Plaintiff that, if he fails to file documents or take other required actions by the deadlines the court sets, the Court may dismiss the case based on his failure to diligently pursue it. The parties must notify the clerk of court of any change of address. The Court also advises the Plaintiff that it is his responsibility to promptly notify the court if he is released from custody or transferred to a different institution. The Plaintiff's failure to keep the Court advised of his address may result in the Court dismissing this case without further notice. A full-text copy of the Court's Order dated July 19, 2021, is available at https://tinyurl.com/3h2n6eey from Leagle.com. WYNDHAM VACATION: Judge Tosses Timeshare Buyers' Class Action ------------------------------------------------------------- Law360 reports that a Delaware federal judge on July 26 dismissed a proposed class action accusing Wyndham Vacation Resorts of fraudulently inducing customers to buy into pricey timeshare properties that they could book more cheaply elsewhere, siding with the timeshare giant that the consumer' fraud and negligent representation claims are time barred. [GN] XCEL ENERGY: Plaintiff's Legal Team to Get Half of Settlement ------------------------------------------------------------- Law360 reports that the plaintiffs' legal team in a years-long class action suit accusing Xcel Energy Inc. of fixing natural gas prices will get about half of a $2.5 million settlement in fees and costs under an order approved in Colorado federal court. [GN] ZIMMER BIOMET: Class Settlement in Karl Suit Wins Initial Approval ------------------------------------------------------------------ The U.S. District Court for the Northern District of California grants preliminary approval of class settlement agreement in the lawsuit entitled JAMES KARL, Plaintiff v. ZIMMER BIOMET HOLDINGS, INC., et al., Defendants, Case No. C 18-04176 WHA (N.D. Cal.). The proposed settlement creates a non-revisionary gross settlement common fund of $7,380,482 to distribute to the 246 settlement class members. The Defendant and parent corporation, Zimmer Biomet Holdings, Inc., and its subsidiaries design, manufacture, and market biopharmaceutical and medical products. In August 2015, Plaintiff James Karl signed a sales associate agreement with Zimmer classifying him as an independent contractor (not an employee) and began selling orthopedic devices to physicians and hospitals as a member of "Team Golden Gate" in the San Francisco Bay Area. Zimmer paid the team on a commission-only "pooled" arrangement. That is, the Defendants (1) set a "base rate" commission percentage for each product type sold, (2) pooled each team member's base rate commissions, and (3) paid each member a predetermined percentage of the pooled commissions, regardless of the amount of commissions that member personally generated. Mr. Karl himself was paid through Edge Medical, LLC, an entity he established for tax purposes. On the job, Karl typically spent 60 to 70 percent of his time on "case coverage," assisting surgeons in the operating room--including setting up Zimmer's products, informing a surgeon of a product's safety and efficacy, and fielding questions--and planning for procedures, such as designing modifications for implants. He averaged between ten to twelve hours each workday. In July 2018, Karl filed the instant putative class action alleging primarily his misclassification as an independent contractor instead of an employee of Zimmer. Initially successful in certifying an FLSA collective, Zimmer's motion for summary judgment cut down several of Karl's claims (including those for overtime wages and failure to provide meal and rest periods), with the order dated Oct. 31, 2019, finding him an exempt "outside salesperson." Though the Court certified the summary judgment order for interlocutory appeal, the court of appeals declined to intervene, and Karl agreed to decertify the FLSA collective thereafter. Karl then successfully certified the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, and, during the pendency of an appeal of that decision per Rule 23(f) the parties engaged in settlement conferences before Magistrate Judge Donna Ryu. The parties' negotiations culminated in a signed settlement agreement on April 7, 2021, and an initial motion for preliminary approval followed on April 30. In subsequent discussions, however, the parties revised several aspects of the agreement in light of certain timing and tax concerns, such as technicalities arising from a mid-year transition of health benefits due to reclassification. Several continuances later, in June 2021, Karl filed a new preliminary approval motion. The proposed settlement creates a $7,380,482 fund to compensate a class of approximately 246 members. Upon final approval, class members currently contracting with Zimmer will also be offered full employment as IRS form W-2 employees. In return, the class will release Zimmer from all claims arising from the facts alleged in this action. As for payments from the settlement fund beyond the class: (1) class counsel will seek a fee award of no more than 28% of the total award ($2,066,534.99); (2) class counsel will also seek costs not to exceed $25,465; (3) LWDA will be paid a fee of $83,030.42 (or 75% of the settlement amount attributed to the PAGA claim); and (4) the settlement administrator will be paid a fee of $12,500. The proposed settlement does not provide Karl an enhancement award. District Judge William Alsup finds that the proposed settlement addresses the primary monetary and equitable goals of this suit. The proposed settlement provides for a non-revisionary gross settlement common fund of $7,380,482.10 to distribute to the 246 settlement class members on a pro-rata basis based upon bi-weekly service pay periods (of which there were approximately 21,956).2 Breaking it down, this provides approximately $336 per bi-weekly pay period or $672 per month. Karl contends the settlement represents approximately 15.31% of Zimmer's total exposure in this suit--estimated at $48,196,516. The settlement amount is fair and comparable to two recent employment classification cases, including Harvey v. Morgan Stanley Smith Barney LLC, where the court approved a settlement of $10,235,000, Judge Alsup holds. The settlement in this lawsuit is also comparable to another class settlement agreement regarding employee classification, Tsyn v. Wells Fargo, No. C 14-02552 LB (N.D. Cal.). Considering next the non-monetary benefits of the proposed settlement, Zimmer would also transition all direct independent contractor sales representatives to employee status. Reclassification as employees provides enhanced rights and protections under California law. Moreover, the reclassification provision provides a level of flexibility to high-income class members (earning over $300,000 per year) who choose to decline Zimmer's employment offer, permitting them to remain independent contracts with the rights accompanying that classification. This order notes, however, some concern with the waiver included in the reclassification provision. Zimmer inserts a condition that independent contractors will only be reclassified to employees if they "are satisfactorily performing their expected duties under their contracts." This permits Zimmer to retain as an independent contractor (or perhaps even fire), instead of reclassify to an employee, any class member not adequately performing their duties. The agreement, however, appears to provide no recourse to independent contractors that Zimmer incorrectly labels as unsatisfactory performers. Judge Alsup asks: What if Zimmer unreasonably decides that an independent contractor is not performing adequately, or that no independent contractor is performing satisfactorily? What then? Class members may be left without a remedy. Zimmer is also apparently under no obligation to prospectively maintain this policy beyond the current class, Judge Alsup notes. This portion of the settlement does not explicitly extend reclassification to new hires on a prospective basis. Only reclassifying those sales representatives currently employed at Zimmer unnecessarily limits the scope of the settlement and does not require the fundamental change in policy the parties touted in their briefing. Further adjustments accordingly need still be made, but the proposed settlement still rates as reasonable at this point. Judge Alsup also notes that the parties have sufficiently limited the scope of the release, and that the proposal appears to be the product of serious, non-collusive negotiations. With Judge Ryu's guidance, and over a period of several months, the parties negotiated, finally culminating with an initial agreement on April 7, 2021. However, the parties continued to discuss various issues regarding the timing of the settlement and produced a revised agreement on June 3, 2021. The parties, in toto, appear to have conducted the necessary arms-length settlement negotiations. Finally, Judge Alsup notes that notice to the class must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections," citing Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). This order calls for two additional revisions to the employee reclassification section of the class: (1) the reclassification section should alert class members that reclassification is limited to those who have satisfactory job performance, and, if they have not satisfactorily performed their job, they will be terminated; and (2) that sales representatives that make above $300,000 have the option of retaining their status as independent contractors. With these revisions, the otherwise clear notice will be distributed primarily via email and first-class mail to the approximately 246 class members. The parties will also use the National Change of Address Database or similar services such as those provided by Experian to update or correct contact information. Judge Alsup holds that this rates as adequate. Judge Alsup rules that the proposed settlement is adequate at this stage, and, to the extent stated in this order, preliminary approval is granted subject to final approval. In the interim: 1. The Defendants will provide names, mailing addresses, and email addresses to the settlement administrator by Aug. 5, 2021; 2. The settlement administrator will complete mail and email notice (the Notice Date) by Aug. 19, 2021; 3. The deadline to submit or postmark corrections via the benefit form will be Oct. 7, 2021; 4. The deadline for objectors to either deliver written objections by hand or postmark the objections via first class mail will be Nov. 4, 2021; 5. The deadline for class members to submit a request for exclusion, if desired, will be Nov. 4, 2021; 6. The deadline to submit opening briefs and supporting documents in favor of final approval of settlement will be Dec. 2, 2021; and 7. The deadline to submit opening briefs and supporting documents for a motion for attorney's fees and incentive awards will be Dec. 2, 2021. The final hearing is scheduled for Jan. 6, 2022. A full-text copy of the Court's Order dated July 15, 2021, is available at https://tinyurl.com/kca49ez7 from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2021. All rights reserved. ISSN 1525-2272. 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